Copyright Panel

Publié le par

Friday 8h45 [Video]

Moderator: Daniel Gervais

Speakers:

  • Pam Samuelson, Economics and Copyright Law
  • Margaret Ann Wilkinson, National Treatment, National Interest and the Public Domain

PS: Economics and copyright law

In the last couple of years, PS started to ask herself why economics analysis had not had the same influence on copyright law as it has had in other fields of the law. It seems to her that IP is a natural field for the economical analysis.

Why does copyright resist being thought lessons by economical analysis? This is odd since copyright in common law tradition is essentially an utilitarian doctrine that is based in economical theory.

The IP system has this role of addressing a public role and providing the assurance that the governement is not the only source of information.

There are sound economical rules:

  • The idea separation distinction
  • Derivative work right
  • Fair use rights etc.

There are questionable rules:

  • Protection for personal letters, diaries, lack of registration requirement to facililtate rights clearances, lowered transaction costs
  • Termination of transfer rights
  • Moral rights
  • Agricultural coop and veterans exceptions
  • Copyright term extension
  • Restoration of foreign copyrights.

Why has economics had so little impact?

  • Economists often speak in language that may be inaccessible to policy makers and many lawyers.
  • Economists are sometimes interested in studying issues that lawyers and policymakers regard as a waste of time (eg optinmal lenght of patents)
  • A complete economics analysis may stop short of policy prescription (lawyers: so where’s the beef?)
  • Simplifying assumptions may oversimplify
  • There is an imbalance the number of studies of copyrights compared to the quantity of works on patents: patents seemed more important to industrial economy (copyrights were not). NSF funding was granted for patent research at key times and therefore ongoing works build on predecessor’s.
    E.g. in Napster economics experts offered an analysis: no decline in sales, Napster was most likely the cause of an increase of sales, The other experts asserted the opposite: decline of sales, disruptive to music labels efforts of digital distribution.
    The Liebowitz study: over time, decline in sales is indeed likely, yet napster resulted in less of a decline than expected.

Reasons for the pervasiveness of the non economics side of copyrights

  • Many practitionners come from the arts world
  • Many authors and publishers prefer authors rights rationale for copyrights to the utilitarian rationale (natural right in one’s creation)
  • Arent more rights always better? (we wont use the rights we don’t need)
  • Hugh Hansen: we will convert copyright atheists and heretics by the sword if necessary.

Policy process

  • For 100 y US congress has allowed or invited copyright industry to draft copyright legislation.
  • Copyright industrys had more expertise than congress on economics effects of rules
  • Public will bear ultimate cost of ever stronger protection but doesn’t have a seat at the table.
  • Policy process is skewed in favvor of established industry groups such as MPAA and RIAA.

Public choice problem:

  • Major copyright-based firms are well organized and funded with significant common interest in getting stronger protection
  • Costs of strong protection are diffuse
  • Likely to produce best laws money can buy.

Examples:

  • the CTEA of 1998, the Lucy Maud Montgomery act in canada
  • DMCA anti circumvention
  • States super DMCA
  • Berman’s p2p privacy prevention act
  • Holling’s consumer broadband and digital tv promotion act
  • Eldred

The Challenge to CTEA was based on an economic interpretation of the constitution: congress had no power under constitution to grant exclusive rights without a progress promotion act.

The economic argument: can’t provide incentive to the creation of works in existence. It also maintains substantial transactions costs, it impede development of derivative works and it impede public access

The supreme court didn’t get it:
Only Justice Breyer would have struck the CTEA down on economic and constitutional grounds.
It is interesting since other justices are very interested in economical analysis in other fields but ignored it here.

Good uses of economics:

  • protection of semi conductors and chips layouts.
  • protection Unoriginal compilation of information

Bad to good uses of copyright:

  • Whelan v. jaslow: unless protection for SSO, incentive to create software too low.
  • CA v. Altai:
  • Sega v. accolade
  • Theberge c. Gallerie d’art.

When might economics be helpful?

  • input to tegislative decision making
  • Input to rule making
  • input to interpretation

Why copyright might resist:

  • Copyright professionals are not trained
  • Copyright industry succesfull to get what they want without economics: sometimes it will help, sometimes not (like with the CTEA)

Conclusion:

  • Copyright is profoundly economics.
  • Economics may be more influential in the future.
  • Public interest organizations may be receptive to take part in the debate.

MAW: National treatment, national interest and the public domain.

What is the public domain? Is it a relevant concept to all aspects of IP? Yes, according to the dictionary of publishing, yet not many example are seen outside of copyrights.

Are the public domain and the information commons synonymous? (Litman)

Is Open source software a part of the public domain?

The patents commons (Reichmann and Uhlir)

Is that an approach that helps to reconcile questions of boundaries? crown copyright in canada, prohibition of the US federal govt holding copyrights.

The public domain ad the domain of fair interaction (Drassinower)

Is the public domaion capable of empirical identification?

  • The task of describing the public domain: Pamela Samuelson’s map
  • Discussion on various elements that constitute the public domain. You need a common definition to do empirical work here.

Is the notion of public domain a theoretical construct?

  • Access model: Open to use by anyone
  • Copyright does not provide acess
  • Accessible or freely accessible
  • Trademark focus on use
  • There is a better vehicule to provide access: dopository schemes, access, legislation, Canadian content in broadcasting
  • Functional model:
    Active v. passive creation: Reichman and Uhlir’s patent public domain. Public domain software. Focus in an intention to move into that space e.g. by authors/creators wanting to fuel creation of further works\inventions.
    Are we willing to include public access available through collective licensing?

Is the public domain then merely a rethorical device?

  • Most likely now. It is a powerful device.
  • Etymology: Domain is a property term. Countering property interests in copyright, trademark or patent monopolies.
  • Public: Is public domain synonymous with public interest? E.g. Crown copyright: in the public interest but not in the public domain.
  • What is the national interest? is the public interest another was of expression national interest? It’s a question concerning mostly Canada and foreign states rather that the US.

Can the public domain play a useful and constitent role in information policy making?

  • Yes, we need a multidisciplinary perspective.

Conclusion:

The public domain does not serve well in terms of representing interests, even those of the public, in the IP debate.
Economics rights in copyrights are meants to increase the variety of sources available to satifsy needs. Moral rights in copyrights are meant to increase the indications of authority available to information seekers in order to judge the selection of sources to satisfy information needs.

Questions:

Q. in the 80s, the software industry wanted protection as litterary work. Protection in DOS will go until 2020.
Interms of economical analysis, if we made a mistake in granting protection in software, what would be the consequences of revoking those rights?

A. PS: economists have suggested the current term for copyright is unsuitable for software. @ articles this year published that courts ought to take more into account the length of time since the work was published and allow for more uses, derivatives, preservation and so forth. Eldred has clamped down the availability of constitutional remedies against the copyright law. I encourage the discussion about allowing for a thinner protection for software over time.
The consequences of taking back protection, either on term on scope: it’s possible to grant extensions, it might no be so to take back rights, on constitutional grounds.

Q: on copyright misuse?

A. PS: Brewster at the internet archive want to have a repository of old software. There are copyright issues here, circumvention issues.
At the LOC hearings he argued his point on DMCA exceptions.
Creating an archiving exception seems reasonable enough. It does not repudiate rights yet allows room for use.

Q. The issue of the appropriate unit of analysis: pratial equilibrium or general equilibrium? Rule by rule? e.g. Derivatives as a whole? Granted rights as a whole? Copyright as a whole? IP as a whole?

A. P.S. I don’t mean to endorse the rule by rule approach. A higher level approach would be a good idea

Q. Comment on collective licensing and it’s economical basis?

A. MAW: The tools of analysis are not well developed regarding information management. In collective licensing, the argument of creating a public domain contractually supports the view that a CL creates a space that is reassonably accessible; quasi public domain. Yet often needs of informationd iffer from the possibility to access. I doubt we can create a public domain contractually. That ould require identifying the needs first. I prefer an approach that would offer acces to any information.

PS: we has less experience with CL in the US. But interest is arising, especially in response to P2P sharing. Also for scientific data, databases. Many are hoping that we resist EU style database protection. If we were to go there. Creating contractual commons would them be better than no commons at all.

MAW: it’s the free vs available debate.

Q. Open source is part of copyright. Not the public domain. This was not clear on your chart.

A. PS: yes, I seem them as contiguous with the public domain in a sense that the kind of licensing that allows use in a way compatible with the creation of commons.