Georgia IP conference part 1

The 2012 Journal of Intellectual Property Law Conference, Back to the Future: Global Perspectives on the Future of IP Law in the Next Decade

Presented By: Journal of Intellectual Property Law; Dean Rusk Center for International Law and Policy; University of Georgia School of Law

Panel 1—International Perspectives on the Evolution of Copyright Law in the Next Decade

Moderator: David E. Shipley, University of Georgia School of Law

Panelists:

Alain Strowel, Professor, Facultés universitaires St.-Louis, Brussels; Of Counsel, Covington & Burling LLP: A European Perspective on the Evolution of Copyright

Are these alternatives?  Copyright has become too strong and will continue to be strengthened in the next decade/Copyright is falling behind and will become less relevant in the next decade.  Cannot expect copyright to evolve by legislation—has become too political: see PIPA/SOPA/ACTA.  Demonstrations in the streets!  Case law instead as the source of evolution, but it’s not enough.

How do people think about copyright? Vancouver Sun editorial, 2007, is typical: IP isn’t needed, only attribution.  April 2011: why Arab Revolutions signal the End of Copyright: the reasons why the internet is so scary to dictators are the same why it terrifies content companies.

Criticisms: copyright lasts too long, grants too many rights, is too broad in subject matter and scope, licenses are too restrictive, exceptions are too narrow and complicated; DRM is too strong; too much to pay in copying levies and royalties from licenses.  New challenges: new expectations from the internet/tech empowers consumers; open source; consumer generated content; other things giving copyright bad press.  EU v. US—Europe used to be less vocal, now may be more so.  Europe: Roles of vocal academics; less greedy rights owners; more respect to the creator; positive role of collecting societies; in the US, a measure for assessing copyright—promotion of progress—that doesn’t exist as a measure for copyright’s success in Europe; less clear how to balance rights with public interest, which is not constitutional.  Fundamental rights approach might even reinforce copyright as a right.

Now: More claims of access based on other bodies of law, such as freedom of expression and data protection (privacy).  Privacy as a way to block copyright enforcement.  Competition law as another external limit.

State of EU copyright law: central issues in first 20 years of ECJ were exhaustion and competition—primary law; the law of the treaty.  Trying to figure out how to combine the requirements of the internal market/free competition with copyright rights.  Then, 1990-2009 a mix of primary law (exhaustion, free movement of goods, collecting societies and free competition, nondiscrimination) and also new directives generating cases on aspects of copyright.  Since 2009: big acceleration of cases.

ECJ deals with copyright differently: court-made harmonization of copyright by filling gaps of directive and creating new complexities.  Issues include scope of software and database protection and liability of intermediaries.  TM is different: fine-tuning the guiding notions of the TM Directive, even with new issues like AdWords.  Design: first intepretation of core issues.  Patent: not much, only a few peripheral issues dealt with.

There are a lot of cases on TM (over 1000 in last 10 years), and under 100 on copyright.  Seven copyright directives 1991-2001, but nothing since 2001.  2004 civil enforcement directive on IP generally, but otherwise there are recommendations, consultations, directive on term of protection for performers but that’s a very narrow issue; proposal on orphan works on the table.

US/EU: similar legal issues—term of protection, protection in the digital world.  Objective is harmonization, including with the rest of the world, but intra-EU harmonization is also slowly being solved.

Exceptions: exhaustive but optional list, will probably be reviewed.  DRMs: interface between DRM and exceptions; interoperability; interface between DRM and copyright levies—the market may be evolving away from DRM at least for purposes of distribution.

Missing elements in the EU: authorship rules; contractual rules; moral rights. No truly pan-European copyright, which makes licensing very difficult, e.g., online music.  No exhaustion for online transmission.

At the national level in Europe, new focus on online enforcement.  New focus on the role of intermediaries—new platforms, access providers. New obligations and increased cooperation for ISPs, beyond standard notice and take down; subscribers have obligation to monitor their access.  Increased pressure to use filters and other technical solutions, though only France has 3 strikes so far.

He concludes: copyright is falling behind.

Michael J. Madison, Professor, University of Pittsburgh School of Law: The End of the Work as We Know It

Everything stems from the idea of the work, which defines your rights.  Yet the “work” has no internal definition, not in US law, the Berne Convention, or anything else. We have a walking around sense of the work as an intangible thing the author created to which rights attach, but we don’t know what it is. As digital works rise, we have two levels of intangibility—authorship within digital work. Is there a single all-purpose definition of the work in a metes and bounds sense that we could then carry throughout the law?  Paul Goldstein has a recent short paper: it should be what the author says it is.  Chris Newman: different perspective, suggests that the work is from the consumer’s perspective, the experience of the creativity. Madison’s view is more in line with Brad Sherman’s: depending on where you are in the copyright law, there are different definitions/approaches.  Descriptive as well as somewhat prescriptive project: there is a kind of boundary principle at work, but not a classic property boundary.  Boundaries in property/patent typically focus on outer bounds of right owner’s interest. 

Madison understands boundaries differently in copyright: operate as outer perimeter but also as barriers/limits between adjacent communities, institutions, etc.—an intersection of interests that can be more or less porous.  Using the idea of the work to make boundaries.

Illustrations: (1) Authors v. objects.  Can a football game be a copyright work?  UK says no, there’s no creativity expressed in playing the game.  Intuitively that’s wrong, but the idea of the work is trying to draw a line between the idea of the work and non-work things (like games as they’re played as distinct from films of the games).  (2) Work as vessel by which author communicates/audience receives message—Wind Done Gone, where there’s a communicative interest front and center in the court’s analysis.  (3) When creations become big or concrete enough to be treated as meaningful under copyright law—Justin Hughes and Size Matters.  Other cases about whether something is “done enough” to count—such as the Mass MoCa case involving a conflict between the museum and a conceptual artist. (4) Human-made objects divided from non-human made objects—whether a garden can be the subject matter of copyright.  Seventh Circuit’s focus on fixation struck many people as misguided; garden is a tangible medium.  Court explicitly says “it’s not a work, it’s a garden.”  (5) Tangible/intangible things: this is very problematic in software licensing.  Are you licensing the thing (the work) or a copy?  License is often deliberately ambiguous about what’s licensed, and intangibility of software lends credibility to the idea that the language isn’t problematic. (6) Division between works in copyright and things in other areas of IP: Dastar, where the court isn’t talking about the work, but origin is the flip side of how we understand what the work is (what the good is).  Hard line between the bodies of law that regulate.  Could do the same thing with patents, publicity rights. (7) Dividing protectable from unprotectable interests—what is idea/fact and what expression?  Authorship/originality do some of the work, but so does the concept of the work—substantial similarity, calculation of statutory damages which are per-work.  Is there simply only one Mickey Mouse, the ur-Mickey?

Can’t punt on the idea of the work with authorship/originality because that just replaces one problematic category with another. Tentative proposal: borrow social science literature led by Lee Starr, the idea of “boundary objects.”  A boundary object is a flexible/fluid thing that allows independent but adjacent communities to communicate with one another.  It’s a tool.

Orit Fischman Afori, Associate Professor, College of Management Academic Studies Law School, Israel 

Main theme: does not foresee a significant shift in copyright law, despite challenges, based on the history of copyright’s evolution.  The basic clash is private/economic v. public/social interests.  Major legal changes were created through national/international legislation, not by courts, and current international regime blocks any chance for a paradigm shift.

(My random speculation: I wonder to what extent the property/theft paradigm in copyright is related to the creditors-must-never-lose, debtors-must-always-pay paradigm, which is having such a global impact.)

Copyright wars: SOPA/ACTA, Google Books, Viacom v. YouTube.  Bedrock issue: the property right model.  Is it still appropriate?  Google: court was unable to accept a new opt out mechanism, while Viacom court was able to develop an existing doctrine (at least in the district court).  This war has been going on for 400 years.  Copyright exists at the nexus of the interests of the public, the government, the authors, and the entrepreneurs (intermediaries: publishers etc.).  Yet the evolution of the law has steadily diminished the weight given to the public.  Conventional understanding: copyright is linked to the invention of printing and the subsequent rise of censorship/regulatory goals.

Privilege system evolved from a permit to a right to copy in publishers, not authors.  Privilege system was criticized by all relevant sectors: competitor printers, the public, authors demanding property rights of their own.

Change can only be achieved through shift in international legislation, but public interest groups have not been successful in getting representation.  Should either attempt to persuade local governments to represent their interests in international bodies, or create an overriding new instrument—whether this could work remains to be seen.

Q: could we cross out “EU” and write “US” for many of these statements about coming challenges, other than those having to do with federalization?

Strowel: we could, yes.

Miller: all 3 papers are addressed to the judiciary, in the sense that one views them as the main actor in the short run given significant impediments to legislation. Is there any advice for judges in how they think about a decision as a dialogic move with legislators?  Should we suggest that judges ask “if I’m wrong, which type of error would be easier to fix given current constraints?”

Afori: In Anglo-American regimes, judicial discretion is vast but not unlimited.

Madison: note that as of this week, Feist appears to be the law in Europe too.  Congress tends to act to confirm evolution in cases/businesses.

Shipley: note that Congress historically has intervened a bunch, making lots of changes; Golan means there’s no limit on what it can do.

Strowel: Not the same dialogue/interactions with courts and legislatures in the EU because of the multiple levels of national and EU-level legislatures and courts.  Copyright could play a role in giving authors access to some of the money from ad-based models on the internet, but it’s difficult.

RT: what’s going on in France?

Strowel: use collective societies to solve orphan works problems.  When you’re represented by collecting society, you can always opt out, so it’s not an author’s rights problem.  Like the Google Books settlement.  Communication to the public right will be covered, but he doesn’t believe that derivative works will be.

Mark McKenna: for Mike Madison. Think about characters. This is related to the size point: characters dramatically complicate a number of other problems including duration, entry into public domain, etc.

Madison: Elasticity of fictional works themselves, of which characters are an example.  Works are in one sense static but also evolve and change over time. Also see this with series television. Cases like the Seinfeld Aptitude Test case—one thing that doesn’t get much attention is that the court is happy to characterize the entire series as a single work, whereas in other cases every episode stands alone.  Termination of transfer cases for characters are nuts for that reasons.

McKenna: Derivative work right/reproduction right overlap—maybe the concept of the work can help you distinguish them.

Madison: what’s the same and what is a new work?  Goldstein is trying to solve the “what are the boundaries” problem, which Madison thinks is essentially hopeless given that these are intangibles; outer boundary will never be well demarcated in terms of what is The Work.  Can hope to give courts/legislatures a better set of tools to understand what they’re doing.