What does copyright need as a system? Two elements are essential: authors and users. We need people to create works, and for the system to function, we need people to read/listen to or watch them or otherwise use them (educators, etc.). No one is essential.

My point is this: Typically one or more intermediaries will link authors and users: a library, book publisher, record company, and nowadays one of many of the online player: (Google, iTunes, etc.) and rights managers (agents, collective management organizations (CMOs), etc.  However, none of these intermediaries have a right to exist. They use policy debates to try to guarantee thier role. That is understandable but must be seen for what it is. Intermediaries must make a case for what they do and why we need them. One possible exception: Librarians have been around for so long that they may have a natural role in the system.

To put is simply, commercial intermediaries come and go.  Yet, for the past thirty years or so, they have often been the only voices heard in copyright debates.  The Digital Millennium Copyright Act of 1998 and the two international treaties that preceded it (the 1996 WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) and their insistence on anti-circumvention rules for technological protection measures (TPMs) are the poster child for this, because TPMs are not used by authors, but rather by intermediaries.

In recent debates, including on the Anti-Counterfeiting Trade Agreement (ACTA), and in the United States the Stop Online Piracy Act (SOPA), it is again mainly intermediaries that directed the debate. Professional production intermediaries (film and record companies) instrumentalized authors to justify their rights while major technology companies (Google etc.) instrumentalized users.

This is like debating highway construction with only toll booth operators and GPS device maker at the table, that is without drivers or road builders (or indeed transport planners). This makes little sense.

Not surprisingly, a number of authors and other creators feel that left out, as expressed succinctly and very clearly by the international Music Creators Alliance, for example.

We need authors and users (back) at the table. This means recognizing intermediaries are representing an essential function but not entities that have a natural right to exist.  Their voice must be heard but not as the loudest one.

Authors are less likely to insist on harsh enforcement against their fans.  They are more likely to ask for realistic business models that the recording industry, for example, has opposed since the Naspter forced shutdown (1999-2000).

While a number of authors have defended the harsh enforcement measures against individual end-users advocated by some intermediaries, many oppose them (see the music creators site above). I suggest that a properly constructed authorial position would more resemble Victor Hugo’s, the great French author, who presided the early work on the most important international copyright treaty, the Berne Convention. He wrote:

« Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient – le mot n’est pas trop vaste – au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous…Constatons la propriété littéraire, mais, en même temps, fondons le domaine public. »  (Victor Hugo, Discours d’ouverture du Congrès littéraire international de 1878).

The three main thoughts in this quote are as follows:

•             A book belongs to its author but the ideas belong to humankind.

•             If either then right of the writer or the right of the human spirit must be forfeited (“sacrificed”), it is the right of the writer that must be because ‘public interest’ is the sole preoccupation and must come before everything else.

•             One must recognize literary property but at the same time establish (“found”) the public domain.

One must update this view, of course, to reflect the incredible power of the Internet to allow new forms of creation and global dissemination of works, but also the societal costs and undesirable outcomes observed when enforcing copyright online (do we WANT governments to mandate deep packet inspection of all that is sent online, for example). Authors, I suggest, want to be recognized as authors of their works and to be compensated fairly.   Is this revolutionary, or is it what copyright is all about? While authors may support shutting down the Megauploads of the world (so do I!), do they favor suing teens, or educators in Africa? The point is simple: there is much more room for agreement among people of goodwill…

I have just attended two conferences, including the ABA IP Section (Crystal City, VA,  March 29-30, 2012) which was, as always, well organized, informative and useful. I was asked five times over two days (by people I had just been introduced to) which ‘side’ I was on in the copyright debate.

Because, you see, there are two sides: those who are for copyright and those who are against (sometimes derided as copyleft to accentuate the difference).

In a recent post, I noted that this is visible in international IP negotiations, where we see ships passin in the night: negotiations among like-minded countries instead of multilateral efforts: ACTA and TPP on one ‘side’, new super-regionals on the other to discuss limitations and exceptions. Both sides are preparing (or finished, in ACTA’s case) texts containing norms and counter-norms. They push separate, parallel treaties (audiovisual performers and broadcasters on one side; exceptions for the Blind and possibly libraries and archives, on the other). For what purpose? Isn’t it more likely that countries will ratify instruments they already agree with, so that these treaties are unlikely to be transformative? of course, they may be pushed as part of trade negotiations in exchange for lower tariffs on cotton or bananas, but that does not always guarantee good buy-in.

The underlying worldviews are fairly clear. On one side, copyright is seen as property and any authorized use is theft, piracy etc. The Internet is a tool that must be stopped or controlled, no matter how high we must raise the criminal sanctions bar or the level of privacy invasion. The other side sees copyright as an impediment to access to knowledge, cultural progress, and freedom of speech, and it is seeking a number of exceptions for specific categories of users, and not necessarily unhappy that there is much ‘free’ content online.

It may be time for copyright independents (somehow, I suspect that they exist) to stand up. Those who are ready to acknowledge that copyright is necessary, and that it must be properly cabined; that uses that interfere with commercial exploitation must be the subject of an exclusive right where appropriate.

Let’s see what is ‘appropriate’ might mean in that context. Let’s begin by acknowledging that (a) the  Internet is not going away, (b) it is hard to control at an acceptable economic and societal cost; and (c) controlling the Internet has not (as a pure empirical matter) generated much additional revenue for copyright owners (the music industry is still shrinking).

First, let’s not treat people who set up Megauploads and a 14 year-old who occasionally file-shares as one and the same policy target by calling them ‘pirates.’ Those who put unauthorized content on commercial websites just to make a buck must be stopped and punished. Obviously. However, my sense is that many people who download do so not because they it is free, but because they actually like the music (etc.). Many file-sharers are in fact fans, not pirates.

Copyright (if dated back to the 1710 Statute of Anne), is 302 years old. Copyright’s battle with the Internet started in the mid-1990s, soon after the first browser (Mosaic) was made available in 1993. This means we have been trying to adapt copyright to the Internet for  less than 20 years. In fact, the WIPO ‘Internet’ treaties were adopted in December 1996 and the Digital Millennium Copyright Act in 1998. Yet file-sharing is still rampant and copyright owners are still uncompensated for most online uses.   Those ‘control’ instruments (DMCA et.c) were adopted well before we understood online business models or had any idea of the power of Web 2.0 for copyright owners and users.

So how might an independent want to move forward? Making fans felons may not be the best way.  It may be time to acknowledge instead that copyright is not, and has not been for 100 years, a binary proposition between exclusive rights (saying ‘no’ unless licensed individual) and exceptions (saying ‘yes’ because it is a fair use or other exception). The former approach (‘no’ or negotiation ‘a la carte’) works well when professionals (authors, publishers, producers) negotiate for specific uses of specific works, like a novelist making an exclusive deal with a book publisher or film studio. Transaction costs are manageable. Beyond ‘yes’ and ‘no’, there is a huge middle zone, like the eight statutory and compulsory licenses in the US Copyright Act, and the voluntary equivalent set up by Performing Rights Organizations (ASCAP, BMI and SESAC in the US; SOCAN in Canada, etc.). Under all those systems, amounting to billions of dollars each year, users can use any protected work in a vast repertory but they must pay. I call this the ‘yes, but’ zone: yes, use the content, but pay (and, I would add, where appropriate acknowledge authorship).  It this radical? Authors I speak to seem to want exactly that: attribution (recognition) and payment for their work.

This does not eliminate the need for negotiations among professionals where this makes sense, nor does it exclude fair uses in any way. It merely acknowledges the fact that in many cases, the system works because copyright rights are neither exclusive nor excluded.

We need more clarity on exceptions and limitations. Refusing to engage on exceptions and limitations is not a good way to limit them–if that is the idea to explain the difficulty to discuss them fruitfully in multilateral fora. It only means that they remain unregulated policy space.  Is that better? I believe that those who want higher enforcement levels would actually gain by discussing E&Ls. It would make copyright simpler and more predictable for all those involved, authors, copyright owners, intermediaries and users.

This would mean working to combine higher enforcement measures against true pirates (that is, some of the measures in SOPA, ACTA, TPP) with a broad discussion on exceptions and limitations. That way, everyone would have an interest in the discussions. A single new instrument combining both would be an ideal outcome.

This means that instead of coming up with proposals mean to assuage the lobbies that press for them (on both sides), a true negotiation must begin. That was the hard process of copyright not that long ago. Think of the negotiations surrounding the adoptionf of the 1976 Copyright Act in the US or, more recently, Bills C-11 and C-32 in Canada).  Even with the Internet making matters more complex, it can happen.

Let me end by quoting Francis Gurry, Director General of WIPO, in a February 2011 speech definitely worth reading:

“I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates. Indeed, some, as we have seen, even make a pride of it. They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.”

Blue sky?

This is not surprising. First, Article 3(1) of the Database Directive (96/9) specifically refers to “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation.” This was transposed almost tel quel in UK law. Second, the language is reminiscent of article 2(5) of the Berne Convention and article 10.2 of the TRIPS Agreement. That language, as I explain in an article published in 2002, is widely considered as a indirect definition of the “originality” that the works or “intellectual creations” that the Convention (and, by implication, the TRIPS Agreement) protects must possess.

In a more recent piece, coauthored with Professor Elizabeth Judge, we argue that anchoring originality in the creative choices is the correct international standard, one that was made part of constitutional law in the United States in Feist and operationalized in the Supreme Court of Canada’s opinion in the CCH case.  Those cases are discussed in detail in the two articles.

The “selection or arrangement” test points to (creative) choices not wholly dictated to the author(s) by functionality and efficiency considerations or by the tools used to create. My rule of thumb is that two authors with similar tools and in similar circumstances would likely produce different works, thus demonstrating the room for originality (creative choices).

While the decision is not perfect (which one is?), I see it as a step in the right direction for any Berne member.

Now if Australia would just do the same…

The paper, coauthored with Dan Hyndman, examines the shift from the Internet connection paradigm to an amalgamation paradigm. Ultimately, almost all personal and commercial content will be stored or backed up in the computing Cloud. This is likely to change the way in which copyright is enforced and users’ privacy is protected.

The report confirms a point made (see TRIPS 3.0: Policy Calibration and Innovation Displacement in Chantal Thomas and Joel Trachtman’s Developing Countries in the WTO Legal System (Oxford UP, 2009) that TRIPS and TRIPS Plus have in many cases put the policy cart before the empirical horse. It seems we are just starting to identify linkages. In fact, WIPO hired its first (though highly qualified) Chief Economist (Carsten Fink) in 2009. It now has a small but very capable team. This is a major deliverable, with a strong patent focus.

The report debunks the statistical myth that patents = innovation and the (incorrect) conclusion that more patents necessarily means more net innovation.  Simply put, we don’t really know. Patents are not synonymous with innovation; they are “intermediate innovation outputs” (Report, p. 29). They may lead to more commercial innovation, but they may also fail to do so for a number of reasons: bad technology; unresponsive markets, lack of funding, poor commercialization, and because patents are also used very often to fence in or block competitors. Whether that leads to more or better innovation overall seems debatable; it is admittedly possible that it does in certain cases.

Innovation rests on a mixture of intellectual property rights such as patents, but also know-how, trade secrets etc. “Innovation” is both hard to define and probably impossible to quantify.  Perhaps broader correlations between GDP growth and IP metrics can be established but as I wrote in the piece mentioned above, higher IP also imposes welfare costs, which calls for calibration of the implementation at the national level including use of flexibilities.

However, the report may be making a preliminary case for higher IP protection in some developing countries. The report shows that innovation is growing faster in middle-income countries than in the “West,” and China is a spectacular example (see the graph p. 7). The metrics used are of intermediate steps like patents, however and subject to the same caveats.

I cannot summarize the full report here but two other major points are striking. First, the emphasis on open innovation. This is not a new phenomenon (see p 112) but it is growing. The report notes that some (like open source) does not require IP incentives (see p 119). It also notes that open innovation produces innovation spillovers and may allow even competitive firms better access to complementary skills and technologies (pp 95-96).

Second, the report emphasizes the push to patent/privatize publicly funded research, in particular at the level of universities. The report makes clear that universities are critical players in national innovation systems (p 139) and that basic research is mainly conducted by the public sector (p 140–and see my paper on innovation clusters here). The report identifies a long list of potential benefits AND additional costs that may arise from creating incentives to privatize publicly funded research (pp 157-158). This points clearly to the need to deepen the analysis, as many countries are debating whether to join the Bayh-Dole Club and patent ever closer to basic science (see the four models described in the box on page 145). The data are certainly noteworthy. For example, we learn that in 2009 the average tech transfer agreement by universities in Canada and the United States generated $75,000 and $436,000, respectively, though most of the income seems to reflect a few major patents.

This is a must-read. It points to the need for much more research on the impact of IP on developing countries in their various stages of development. Hopefully, this can be translated into lessons that national policy makers can use to calibrate their IP laws and infrastructure.

This led to the elaboration in the 1980s and 1990s of a possible protocol to Berne (not requiring amendment), which in turn became the WIPO Copyright Treaty, signed on December 20, 1996.

The backdrop for the proposed changes are the massive use of digital content of course and indirectly a recognition, as I’ve argued elsewhere, that copyright has traditionally been ill-equipped to deal with mass uses where the licensee is the end-user not a distributor or other professional. Even more so, when that end-user becomes a creator of content in his or her own right. See here for a discussion on excludability and here for a discussion of user-generated content (UGC).

The approach raises a question which I found much more interesting, namely whether the “ships passing in the night” approach currently used to advance  international IP norms is the best way forward. I mean by this that “pro-IP” lobbies push for ACTA and other TRIPS-Plus agreements and national measures designed to elevate the level of protection while ”anti-IP” lobbies push for separate agreements, for example  on print-disabled users or libraries.

I have indicated my support for exceptions for print-disabled users. However, I also indicated that I was unsure that the “pro” and “con” discourse is misguided. A true reform should include BOTH higher and/or clearer protection of copyright where needed AND new limitations to reflect changes since 1971 and inadequacies that need to be corrected. This would be normatively balanced and politically much more palatable.

Is the Russian proposal clever? Perhaps.  Rhetorically at least.  It leaves aside the “unanimity” language, which tends to signal the quasi-impossibility of moving forward, and replaces it with a search for consensus. If unanimity is near-impossible (per the received wisdom), consensus is not, as the WTO, which essentially functions on that basis, demonstrates each and every day. So, a consensus reform of Berne? Here, this would mean, however, a real negotiation instead of the development of competing norm sets. Lobbies in this field have not won medals for the ability to compromise and negotiate.

I am not holding my breath, but definitely worth following.

Conflicts arise as when an indication is shared by two countries (“Pisco” shared by Chile and Peru) or when an Old World GI clashes with a New World non-geographic trademark (Budweiser for beer which may refer both to the Anheuser-Busch product and  to the “original” one, Budějovický Budvar, from the Czech Republic).

The World Intellectual Property Organization has been operating an international registry of appellations/GIs since 1958, the Lisbon system.  The system has flaws and may contain a number of administrative and substantive “irritants” which reduce its attractiveness to a number of countries. I took a detailed look at the system here.  In December 2011, WIPO held meetings at which changes to the Agreement (a draft  ”new instrument” reminiscent of the protocol to the Madrid Agreement on Trademarks). It made progress, according to the Chair.

The issue if also of interest to the developing world, which holds many GIs on products such as coffee, tea, cocoa, textiles etc. and several forms of traditional knowledge.

The issue is also on the WTO radar because articles 22-24 of TRIPS protect GIs (GIs in general if their use is deceptive; GIs on wines and spirits even without deception) and mandates negotiations on a registration/notification system for wines, a mandate extended to spirits in  the Doha Declaration (para 18).  The WTO made available proposals to establish such a system.

The obstacles are more apparent than real.  Companies such as food giant Kraft, which use many GIs (but not as GIs) on their products (Italian cheeses etc.) are afraid of the potential impact on their brands. However, preventing the United States and other New World countries from engaging will not prevent the establishment of GIs in other parts of the world, thus potentially restricting their export markets. It would be ironic to some if the US, a champion of IP protection had to argue against GIs in bilateral treaties, as seems to be happening in the TPP context. More importantly, the matter could be resolved by establishing a “new” register (either from scratch or with a  possibility for new members to challenge existing Lisbon entries) and/or grandfathering certain GIs as was done for wines in the EU-US Wine Pact (discussed here), and by removing the irritants mentioned above. This is one case where taking a hard look at preconceived notions might be useful.  

It is a false dichotomy to say that there are exclusive rights on the one hand, and exceptions, on the other. Collective management is a middle zone, where uses are legal, not subject to individual authorization (most CMOs cannot refuse an authorization) but subject to payment. For a copyrighted work that has been legally put on the market by the right holder, this sounds better as a business model than trying to shut down web sites.

Brazil and India have cards to play and I am looking forward to my upcoming trips to Bangalore and Rio in 2012 to see what’s changed there. Innovation is a global game. Proper policy may help.

The issue has surfaced in many ways and many places. WIPO is updating Lisbon. Read WIPO’s proposals here and my comment here.

The issue is on the agenda at the WTO and their notification proposal is available here.

But now it is also part of the (not very public) negotiations on the Trans-Pacific Partnership, an ACTA-Plus effort to update not just enforcement but also substantive TRIPS rules. See Jimmy Koo’s take on it here.

It is hard to discuss this issue on the merits. Lobbying by major users of Old World marks outside of their GI context, from Kraft to Budweiser, on the US side, and similarly heavy efforts by the wine, spirits and cheese industries in Europe have made finding compromise difficult. A detailed analysis of the Lisbon system and possible updates to it (see here) shows that the issue is much smaller and easier to solve than it seems and, much like the Wine Pact, a list of exceptions could deal with the few major issues. Lisbon, like the Madrid system for trademarks, could be adapted to meet worldwide needs, a system that would use existing expertise on GIs in the Lisbon context and avoid creates a new notification-only system at the WTO with undetermined legal effect.