Present And Future Priorities In Copyright Law

Present and Future Priorities in Copyright Law

A Scoping Study

February 2002

Yoav Mazeh Wolfson College, Oxford

Done under the auspices of the Oxford Intellectual Property Research Centre at St Peter’s College, Oxford, and under the supervision and editorship of Professor David Vaver, the Centre Director 2

Table of Contents Introduction 3

Part A: IP Centres 4

Miscellaneous 5

Part B: Three Major Development Areas 7

Computer programs 7

Internet 10

Information 13

Part C: Aspects of Copyright Law in Recent Research 15

Public Interest 15

Economic Aspects 17

International Aspects 19

Part D: Future Possible Research Areas 22

Creators-Consumers Conflict 22

Empirical Research 23

Criteria for and scope of Protection 25

Selected Bibliography 27 3

Introduction

The focus of this report is to discuss present priorities in current Intellectual Property

(IP) research, particularly in the fields of copyright and moral rights.1 The report describes issues which occupy significant attention in the contemporary academic literature of copyright. Part A of the report will provide a list of IP centres throughout the world, particularly in the UK and the USA. Part B will examine three major development areas, namely the computer program, internet and information industries. Part C will examine three aspects of copyright law which receive considerable focus in recent IP literature. Finally Part D will suggest future areas of research in the field of IP law. 4

Part A: IP Centres

Mapping the academic centres of IP is not an easy task. Fortunately, this field is flourishing and it is difficult to follow all the IP centres which are being established regularly. Hence, this report does not aim to create a comprehensive list of all IP centres, but rather to mention a number of prominent centres in this field that may fairly reflect the current status.2

At Cambridge University there is an IP Unit, which is part of the Faculty of Law.3 At

Oxford there is the Oxford Intellectual Property Research Centre at St Peter’s

College.4 This is an interdisciplinary centre consisting of IP lawyers, economists, business management academics, etc.5 A new Oxford Internet Institute has just been established at Balliol College to conduct internet research and studies; a director is currently being sought.6 The Queen Mary Intellectual Property Research Institute is at the Queen Mary College, University of London.7 This is a large and active IP centre, which deals with a variety of IP law issues.

In the USA there are a large number of centres. The Berkeley Center for Law &

Technology8 is a leader in the fields which examine the interaction of IP and technology. At Chicago-Kent College there is the Illinois Institute of Technology and the Institute for Science, Law and Technology.9 The Kernochan Center for Law,

Media and the Arts is at Columbia University.10 A centre is located also at Franklin 5

Pierce College.11 Although this centre is less academically oriented, it is one which is highly focused on IP in a broad sense. At George Mason University there is the

National Center for Technology & the Law.12 The Dinwoodey Center for Intellectual

Property is at George Washington University.13 At Harvard there is the Berkman

Center for Internet & Society,14 which is focused on IP and social aspects of the internet. The recently established Information Law Institute at New York University15 focuses on the information aspect of IP, and other aspects of IP are dealt with by faculty which is not necessarily associated with this institute. Finally, the Stanford

University Law, Science and Technology Program16 fosters a leading IP centre.

Miscellaneous

Other IP centres in the world include the Universidad de Alicante, Spain, which has the Magister Lucentinus – Master of Intellectual Property and Information Society.17

At the ETH at Zurich, (the Swiss Federal Institute of Technology), there is the NDS

Intellectual Property.18 At Strasbourg Law Faculty there is the Centre D’Etudes

Internationales de la Propriete Industrielle – CEIPI.19 The Max Planck Institute at

Munich is a leading centre in IP research, with specialised research departments on IP covering different regions of the world, including developing countries.20 This field is also emphasised at Murdoch University, Western Australia, in the Asia Pacific

Intellectual Property Law Institute.21 2 In each geographical group the centres are listed by alphabetical order. 3 http://www.law.cam.ac.uk/ipunit/home.htm 4 http://www.oiprc.ox.ac.uk/. The website also offers a large numbers of web-published articles at the Electronic Journal of Intellectual Property. See: http://www.oiprc.ox.ac.uk/EJINDEX.html 5 It is noted that the author of this report is a research student in Oxford and participates regularly in the activities of the Oxford Intellectual Property Research Centre, although he is not officially affiliated to the Centre. 6 http://www.oii.ox.ac.uk/index.shtml. 7 http://www.ccls.edu/iplaw/ 8 http://www.law.berkeley.edu/institutes/bclt/ 9 http://www.kentlaw.edu/islt/ 6

10 http://www.law.columbia.edu/centers/law&arts.htm 11 http://www.fpc.edu/. See also their wide range IP Mall at http://navigation.helper.realnames.com/framer/1000/default.asp? realname=Intellectual+Property+Mall&cc=US&lc=en %2DUS&frameid=1565&providerid=154&url=http%3A%2F%2Fwww%2Eipmall%2Efplc%2Eedu 12 http://techcenter.gmu.edu/ 13 http://www.law.gwu.edu/centers/dinwood.asp 14 http://cyber.law.harvard.edu/ 15 http://www.law.nyu.edu/ili/index.html 16 http://law-science-tech.stanford.edu/index2.html 17 http://ml.ua.es/ 18 http://www.ndsge.ethz.ch/en/index.html 19 http://www.ceipi.edu/cgi/index_gb.cfm?rep=leceipi 20 http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM 21 http://wwwlaw.murdoch.edu.au/apipli/main.html

Part B: Three Major Development Areas 7

Computer programs22

One of the major development areas which is governed by, inter alia, copyright is the field of computer programs or software. In general, copyright is capable of protecting software as literary work.23 However, as the software industry is developing rapidly, new questions arise as to what aspects of software should be protected by this field of law. An example of an issue which has recently received considerable attention is that of the legitimate uses of copyrighted software. One form of this question has been raised by a US Court of Appeals holding that the restriction of software producers on copying others’ software in order to develop compatible accessory products is a misuse of copyright.24 This case has raised considerable discussion about how far copyright holders may legitimately exercise their exclusive rights: when does the exploitation of copyright in software by the rights owner become a

‘misuse’ that the law should prevent?25 This connects with the broader issue of what uses should be regarded as “fair” and thus allowable, and what uses should fall outside this “privilege” – so-called “exceptions” in European law. An example is the whole question of reverse engineering.26

A particularly interesting question here is the economic justification for copyright protection for software. In general, economic theories of copyright stress the incentive for creativity which is achieved by copyright protection.27 However, the modern software industry raises some doubts about the validity of these economic models.28 The evolving open source industry, where the software code is given out for free, supports the view that creativity may occur without any need for copyright incentives. In other words, copyright may not necessarily be the incentive for 8 creativity in general, or at least in the field of software,29 the point is often made that copyright for software is a serious restriction on competition.30

In sum, the complex developments in the software industry raise considerable questions both about the law as it is, and the law as it should be. 22 It is noted that Software and Computer Program are not completely synonymous (see Council Directive (Eec) No 91/250 on the Legal Protection of Computer Programs [1991] OJ L 122/42, Recital 7). However, this report will not distinguish between the two. 23 Copyright, Designs and Patents Act 1988, s 3(1)(b); See also: Council Directive (Eec) No 91/250 on the Legal Protection of Computer Programs [1991] OJ L 122/42; TRIPs art 10(1); WIPO Copyright Treaty (Geneva 1996) art 4. 24 Alcatel USA Inc v DGI Technologies Inc 166 F 3d 772 (US Ct App (5th Cir), 1999). 25 JC Ginsburg 'Copyright Use and Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts 1; B Frischmann and D Moylan 'The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software' (2000) 15 Berkeley Tech L J 26 E Douma 'The Uniform Computer Information Transactions Act and the Issue of Preemption of Contractual Provisions Prohibiting Reverse Engineering, Disassembly, or Decompilation' (2001) 14 Albany L J of Science & Tech 249; B Frischmann and D Moylan 'The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software' (2000) 15 Berkeley Tech L J . 27 WM Landes and RA Posner 'An Economic Analysis of Copyright Law' (1989) 18 J of Legal Studies 325; WR Johnson 'The Economics of Copying' (1985) 93 J Political Economy 158; GK Hadfield 'The Economics of Copyright: An Historical Perspective' (1992) 38 Copyright L Symposium 40. 28 One of the first to raise this issue was S Breyer 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs' 1970 84 Harvard L R 281. See also WM Landes 'Copyright, Borrowed Images, and Appropriation Art: An Economic Approach' (2000) 9 George Mason L Rev 1; MA Lemley Software and Internet Law (Aspen Law & Business Gaithersburg 2000); RP Merges 'Who Owns the Charles River Bridge? Intellectual Property and Competition in the Software Industry' http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf; M Lehmann 'Theory of Property Rights and Copyright Protection of Computer Programs in Europe' (1994) 2 Int J of L & IT 86; I Madieha Azmi 'Contract or Copyright? Software Licensing and the Control of Information Products: The Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; E Douma 'The Uniform Computer Information Transactions Act and the Issue of Preemption of Contractual Provisions Prohibiting Reverse Engineering, Disassembly, or Decompilation' (2001) 14 Albany L J of Science & Tech 249; BF Fitzgerald 'Software as Discourse: The Power of Intellectual Property in Digital Architecture' (2000) 18 Cardozo Arts & Ent L J 337; B Yonaga 'An Economic Analysis of Computer Software Copyright: A Welfare Model of Intellectual Property Rights' (1991-92) 11 The Computer L J 173. 29 PK Bobko 'Open-Source Software and the Demise of Copyright' (2001) 27 Rutgers Computer & Tech L .J 51; R Dixon 'When Efforts to Conceal May Actually Reveal: Whether First Amendment Protection of Encryption Source Code and the Open Source Movement Support Re-Drawing the Constitutional Line between the First Amendment and Copyright' (2000) 1 Colum Sci & Tech L Rev 3; BF Fitzgerald 'Software as Discourse: The Power of Intellectual Property in Digital Architecture' (2000) 18 Cardozo Arts & Ent L J 337; L Lessig 'The Limits in Open Code: Regulatory Standards and the Future of the Net' (1999) 14 Berkeley Tech L J 758; A Metzger and T Jaeger 'Open Source Software and German Copyright Law.' (2001) 32 IIC 52. 30 See for example I Madieha Azmi 'Contract or Copyright? Software Licensing and the Control of Information Products: The Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; RP Merges 'Who Owns the Charles River Bridge? Intellectual Property and Competition in the Software Industry' http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf 9 10

Internet

Another much discussed field is that of the internet. The reality created by the internet is significant to two aspects of copyright. The first refers to the forms of expression which are enabled by the internet: web-content, design and links are all new forms of expression, and copyright may protect them as literary or artistic works.

The second, much-discussed, aspect of copyright is that of infringement on the internet. The internet enables new forms of use of copyright works. One can display a work on a website, one can create a link to a website which displays a work, and one can even provide search engines that reach a website which displays a work, etc. Are or should all these uses be infringements of copyright?31

The issue of what aspects of the internet should be regulated by copyright raises concerns in various fields. Questions are being asked about the impact of the internet and copyright on public access to works and, more generally, information.32 Other questions relate to how economic theory applies to the reality of the internet, given that access to works may be granted at practically no cost.33 Concerns are also expressed over censorship and freedom of speech,34 and practical issues over the inter- jurisdictional or cross-border aspects of the internet.35

Similar issues are also raised with respect to moral rights. Moral rights protect the integrity of authors by, inter alia, restricting the modification of works without the consent of the original author. On the one hand, the internet and other digital technologies enable users to modify works in ways which were not previously possible. Private users can download a painting from the internet, alter it, and put their 11 modified version back on the web, for example. On the other hand, while in previous years consumers could not always access the unmodified work, in the reality of the internet, “the undistorted original could”, in the words of Professor Jane Ginsburg,

“be only a mouse click away.”36 Hence, the view of Ginsburg and others37 is that perhaps where the internet is concerned, moral rights should not prevent modifications of works, but rather should require those who present on the web a modified version of a work to provide a link to the original unmodified version.

31 See for example E Aoki 'Brazil: Moral Rights Are Not Violated by Unauthorised Publication of Copyrighted Work in Website' (2001) 112 Copyright World 3; T Aplin 'Liability of Internet Service Providers for Moral Rights Infringement in Australia' (1999) 1 Digital Tech L J; Y Benkler 'Internet Regulation: A Case Study in the Problem of Unilateralism' (2000) 11 European J of Int L 167; T Dreier 'Copyright Law and Digital Exploitation of Works - the Current Copyright Landscape in the Age of the Internet and Multimedia' Max Planc Institute Online Publications http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM; JC Ginsburg 'Copyright Use and Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts 1 32 I Butterworth (ed) The Impact of Electronic Publishing on the Academic Community (Portland London 1998); PA David 'A Tragedy of the Public Knowledge ‘Commons’? Global Science, Intellectual Property and the Digital Technology Boomerang' WP 04/00 Oxford Intellectual Property Research Centre Working Paper Series; T Dreier 'Copyright Law and Digital Exploitation of Works - the Current Copyright Landscape in the Age of the Internet and Multimedia' Max Planc Institute Online Publications http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM; T Heide 'Copyright in the E.U. And United States: What "Access Right"?' (2001) 23 EIPR 469. 33 MA Lemley 'The Law and Economics of Internet Norms' (1998) 73 Chicago-Kent L Rev 1257; Y Benkler 'Internet Regulation: A Case Study in the Problem of Unilateralism' (2000) 11 European J of Int L 167; JC Ginsburg 'Copyright Use and Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts 1; AR Fox 'The Economics of Expression and the Future of Copyright Law' (1999) 25 Ohio Northern U L Rev 5. 34 C Kendall 'Internet Censorship in Australia: The Broadcasting Services Amendment (Online Services) Act' (2000) 1 Cyberspace and Law 175; N Weinstock Netanel 'Market Hierarchy and Copyright in Our System of Free Expression' (2000) Vanderbilt L Rev 1879. 35 P Samuelson 'On Author's Rights in Cyberspace: Are New International Rules Needed?' (1996) First Monday http://www.firstmonday.dk/issues/issue4/samuelson/; A McRobert and M Pendleton 'Browsing, Caching, Downloading & Linking Websites: Copyright & Multi-Jurisdictional Dimensions' (2000) 41 Computers & Law 3; M Pendleton 'Computer Programs, Internet Copyright and Trips Border Control' (1999) 7 Asia Pacific L Rev 133; S Plenter 'Choice of Law Rules for Copyright Infringements in the Global Information Infrastructure: A Never-Ending Story?' (2001) 23 EIPR 313. 36 JC Ginsburg 'Art and the Law: Suppression and Liberty Have Moral Rights Come of (Digital) Age in the United States?' (2001) 19 Cardozo Arts & Ent L J 9, 17. 37 See for example J Litman 'Revising Copyright Law for the Information Age' (1996) 75 Or L Rev 19. 12

Information

The third industry which causes significant copyright discussion is the information industry. A fundamental principle in copyright law states that copyright protects expressions and not the ideas which are being expressed. Traditionally, when this principle was applied to works containing lists of information (ie compilations), it was held that copyright does not provide exclusive rights in the information itself since the information was regarded as the idea of the expression. What is protected by copyright is the selection, arrangement and presentation of the information in a certain way.38 For example, if a publisher publishes a railway timetable, he can enjoy the protection of copyright for his timetable, and prevent others from photocopying it.39

However he does not enjoy an exclusive right in the information (ie the schedule of the trains), and thus others may create their own timetable of the same data. A distinction is thus made between the data, which are not protected by copyright, and the selection and arrangement of the data, which could qualify for protection.

However, advances in the fields of software and internet have created a situation where databases and other forms of information can be easily duplicated and re- arranged. According to the traditional distinction between data and the presentation of the data, copyright protection might not have extended to modern databases which only (or mainly) contain the information itself and do not arrange it in any particularly original or distinctive way. Hence, a database protection right was created in Europe.

According to the European Database Directive40 and its implementing UK legislation,41 sui generis rights are provided to databases even if they fail to qualify for copyright protection. 13

This outcome, that information contained in a database is protected by IP law, has raised concerns. IP rights in information imply that the holders of these rights can control the information society may access. It has been claimed that these rights affect what is being expressed, rather than how it is being expressed. Hence, concerns have been raised over issues of freedom of speech and censorship.42 Claims have also been that the scope of the rights granted by the Database Directive are too broad, conferring unreasonable restrictions on the use of information.43 And questions have been asked about the economic and social impacts of the commodification of information.44

38 Although this rule is now stated in section 3A(2) of the Copyright, Designs and Patents Act 1988, the same rule was also applied prior to this amendment to the legislation. See, for example, v [1964] 1 WLR 273 . 39 Blacklock v Pearson [1915] 2 Ch 376 ; Leslie v Young [1894] AC 335 (CA). 40 Council of Parliament Directive (Ec) 96/9 on the Legal Protection of Databases [1996] OJ L 028/11. 41 Copyright and Rights in Databases Regulations 1997 SI 1997/3032 which came into force on 1 January 1998. 42 Y Benkler 'Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain' (1999) 74 NYU L Rev 354; JC Ginsburg 'Art and the Law: Suppression and Liberty Have Moral Rights Come of (Digital) Age in the United States?' (2001) 19 Cardozo Arts & Ent L J 9; C Kendall 'Internet Censorship in Australia: The Broadcasting Services Amendment (Online Services) Act' (2000) 1 Cyberspace and Law 175; PL Loughlan 'Looking at the Matrix: Intellectual Property and Expressive Freedom' (2002) 24 EIPR 30. 43 JH Reichman and P Samuelson 'Intellectual Property Rights in Data?' (1997) 50 Vanderbilt L Rev 51; L Bently and B Sherman Intellectual Property Law (3rd edn OUP Oxford 2001) 301. 44 N Elkin-Koren and N Netanel (edd) The Commodification of Information: Political, Social, and Cultural Ramifications (Kluwer 2000); Y Benkler 'A Political Economy of the Public Domain: Markets in Information Goods Vs. The Marketplace of Ideas' in RC Dreyfuss, DL Zimmerman and H First (edd) Expanding the Boundaries of Intellectual Property : Innovation Policy for the Knowledge Society (OUP Oxford 2001); JH Barton 'The Balance between Intellectual Property Rights and Competition: Paradigms in the Information Sector' (1997) 18 European Competition L Rev; I Madieha Azmi 'Contract or Copyright? Software Licensing and the Control of Information Products: The Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; MJ Bastian 'Protection of "Noncreative" Databases: Harmonization of United States, Foreign and International Law' (1999) 22 Boston College International and Comparative L Rev 425; JC Ginsburg 'Creation and Commercial Value, Copyright Protection of Works of Information' (1990) 90 Columbia L Rev 1865; WJ Gordon 'On Owning Information: Intellectual Property and the Restitutionary Impulse' (1992) 78 Virginia L Rev 149. 14

Part C: Aspects of Copyright Law in Recent Research

In this part of the report, three aspects of copyright law which receive considerable mention in the contemporary IP literature are highlighted.

Public interest

The first aspect relates to the public interest. Copyright law has always tried to balance the need for incentives for creativity, on the one hand, and the need to enable society to access works which have been created, on the other.45 Broadening the protection provided by copyright provides greater incentives for authors, but narrows the public domain, that is, the common cultural resources to which the public has access. Finding the right balance between sufficient incentives for creativity and over-restricting the public domain has always been, and still is, one of the main challenges of copyright law.

45 B Kaplan An Unhurried View of Copyright (Columbia University Press New York 1967); P Goldstein 'Copyright and the First Amendment' (1970) 70 Columbia L Rev 983; RC Denicola 'Copyright and Free Speech: Constitutional Limitations on the Protection of Expression' (1979) 67 California L Rev 283; MJ Radin 'Property and Personhood' (1982) 34 Stanford L Rev 957; D Baird 'Common Law Intellectual Property and the Legacy of International News Service V. Associated Press' (1983) 50 Chicago L Rev 411; IE Novos and M Waldman 'The Effect of Increased Copyright Protection: An Analytic Approach' (1984) 92 J Political Economy 236. 46 Y Benkler 'Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain' (1999) 74 NYU L Rev 354; Y Benkler 'A Political Economy of the Public Domain: Markets in Information Goods Vs. The Marketplace of Ideas' in RC Dreyfuss, DL Zimmerman and H First (edd) Expanding the Boundaries of Intellectual Property : Innovation Policy for the Knowledge Society (OUP Oxford 2001); PA David 'A Tragedy of the Public Knowledge ‘Commons’? Global Science, Intellectual Property and the Digital Technology Boomerang' WP 04/00 Oxford Intellectual Property Research Centre Working Paper Series; RC Dreyfuss, DL Zimmerman and H First (edd) Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (OUP Oxford 2001); FW Grosheide 'Copyright Law from a User's Perspective: Access Rights for Users.' (2001) 23 EIPR 321; T Heide 'Copyright in the E.U. And United States: What "Access Right"?' (2001) 23 EIPR 469; F Macmillan 'Adapting the Copyright Exemptions to the Digital Environment' (1999) 1 Digital Technology Law Journal; RP Merges 'Who Owns the Charles River Bridge? Intellectual Property and Competition in the Software Industry' http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf; A Metzger and T Jaeger 'Open Source Software and German Copyright Law.' (2001) 32 IIC 52; M Pendleton 'The Danger of Protecting Too Much: A Comparative Analysis of Aspects of Intellectual Property in Hong Kong, Britain and the United States' (2000) 22 EIPR 69. 15 16

Economic Aspects

A second prominent aspect in IP literature is economic analysis. In this respect similar to the public interest issue, the economics of copyright has also been thoroughly discussed over the years.47 In economic terms, copyright is designed to correct a market failure of free access to public goods. Copyright enables its holder to charge a fee for the use of the work, and thereby recoup the holder’s investment in product creation and development. In other words, copyright enables potential authors to invest in creating works because they know that potential consumers of the works will be willing to pay for their consumption. However, the other side of the economic coin is that copyright provides a monopolistic right to its holder, thereby restricting competition. Copyright holders may use their exclusivity over their product in uncompetitive ways. Hence, the question has always been how to balance the power of copyright holders, so they would have an economic incentive to enrich society but would not be overly uncompetitive in the exercise of their rights.

Economics is often used to examine and evaluate developments in IP law.48 In recent academic literature, this approach applies to almost every possible aspect of copyright. Examples include compulsory licensing,49 derivative works and improvements in existing works,50 translations,51 academic work and publishing,52 freedom of speech,53 and even moral rights.54

In general, the economic aspect plays an important part in contemporary IP literature.

The question often asked is whether IP rules promote economic efficiency or rather are undue obstacles to efficient competition.55 17

47 S Breyer 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs' (1970) 84 Harvard L R 281; WJ Gordon 'Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors' (1982) 82 Columbia L Rev 1600; WR Johnson 'The Economics of Copying' (1985) 93 J Political Economy 158; WM Landes and RA Posner 'An Economic Analysis of Copyright Law' (1989) 18 J of Legal Studies 325. 48 See above, with respect to software, at page 7; with respect to the internet, at page 10; and with respect to information at page 12. 49 S Basalamah 'Compulsory Licensing for Translation: An Instrument of Development?' (2000) 40 IDEA 503; T Gallagher 'Copyright, Compulsory Licensing and Incentives' No 2 May 2001 Oxford Intellectual Property Research Centre Working Paper Series . 50 M Blakeney 'Intellectual Property and Economic Development' (1998) 4 Int Trade Law & Reg 1; SS Boyd 'Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work' (2000) 40 Santa Clara L Rev 325; WM Landes 'Copyright, Borrowed Images, and Appropriation Art: An Economic Approach' (2000) 9 George Mason L Rev 1. 51 S Basalamah 'Compulsory Licensing for Translation: An Instrument of Development?' (2000) 40 IDEA 503. 52 I Butterworth (ed) The Impact of Electronic Publishing on the Academic Community (Portland London 1998); R Downes Computing, Electronic Publishing and Information Technology : Their Impact on Academic Libraries (Haworth Press New York ; London 1988); T Dreier 'Copyright Principles in a Digital Scientific World' in I Butterworth (ed) The Impact of Electronic Publishing on the Academic Community (Portland London 1998) 48; D Lametti 'Publish and Profit?: Justifying the Ownership of Copyright in the Academic Setting' (2001) 26 Queen's L J 497. 53 AR Fox 'The Economics of Expression and the Future of Copyright Law' (1999) 25 Ohio Northern U L Rev 5; N Weinstock Netanel 'Market Hierarchy and Copyright in Our System of Free Expression' (2000) Vanderbilt L Rev 1879. 54 BS Hayes 'Integrating Moral Rights into U.S. Law and the Problem of the Works for Hire Doctrine' (2000) 61 Ohio State L J 1013; SK Kauffman 'Motion Pictures, Moral Rights, and the Incentive Theory of Copyright: The Independent Film Producer as "Author"' (1999) 17 Cardozo Arts & Ent LJ 749. 55 M Blakeney 'Intellectual Property and Economic Development' (1998) 4 Int Trade Law & Reg 1; T Gallagher 'Copyright, Compulsory Licensing and Incentives' No 2 May 2001 Oxford Intellectual Property Research Centre Working Paper Series; RJ Gilbert and WK Tom 'Is Innovation King at the Antitrust Agencies?: The Intellectual Property Guidelines Five Years Later' (2001) 69 Antitrust L J 1; MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; MA Lemley 'The Economics of Improvement in Intellectual Property Law' (1997) 75 Texas L Rev 989; MA Lemley 'The Law and Economics of Internet Norms' (1998) 73 Chicago-Kent L Rev 1257; RP Merges 'Intellectual Property Rights, Input Markets, and the Value of Intangible Assets' http://www.law.berkeley.edu/institutes/bclt/pubs/merges/iprights.pdf; R Van den Bergh 'The Role and Social Justification of Copyright: A 'Law and Economics' Approach' (1993) 102 Yale L J 1533. 18

International Aspects

The third dominant feature of copyright research is its international aspect.

Traditionally, national IP laws protected only works of local origin. However, as export and import became more common, it was realized that countries would be better off protecting foreign works and correlatively having their works protected abroad. Nevertheless, differences in IP standards between countries created difficulties in international co-operation.56 As differences existed in the criteria for protection, the scope of protection and what constituted infringement, finding agreed common standards by which all countries would protect the foreign works proved slow and difficult.

A significant international effort has occurred during the last few decades with the object of harmonizing international IP law and creating common standards. The

TRIPs agreement,57 WIPO’s Copyright Treaties,58 and the gradual implementation of the European Directive on the Information Society59 are just a few examples.60

In the light of such initiatives and other globalizing processes, adherence to international IP standards has become an issue of great interest. Examples where this aspect has been examined include the duration of rights,61 the originality requirement,62 and copyright in sound recordings.63

One particularly strong example of an issue with a substantial amount of literature on creating and adhering to international standards is that of moral rights.64 Although the international standard in this respect was set long ago by the Berne Convention,65 19 issues of compliance remain current. The recent enactment of the United States

(Moral Rights) Act 2000 are examples of recent national legislation that has attracted international academic attention concerning compliance with the Berne standards of moral rights.66

Finally, a totally different international issue relates to developing countries and aboriginal cultures. Recent literature argues that cultural aspects of indigenous people should be regarded as their intellectual property.67

56 P Goldstein International Copyright : Principles, Law, and Practice (OUP New York 2001); H Cohen Jehoram 'European Copyright Law - Ever More Horizontal' (2001) 32 IIC; JAL Sterling World Copyright Law (Sweet & Maxwell London 1998); S Ricketson 'The Boundaries of Copyright: Its Proper Limitations and Exceptions: International Conventions and Treaties' [1999] 1 IPQ 56. 57 Trade Related Aspects of Intellectual Property Rights (1994). 58 WIPO Copyright Treaty (Geneva 1996); WIPO Performances and Phonograms Treaty (Geneva 1996). 59 Directive 2001/29/Ec on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10. 60 Other examples are also Council Directive (Eec) No 91/250 on the Legal Protection of Computer Programs [1991] OJ L 122/42; Council of Parliament Directive (Ec) 96/9 on the Legal Protection of Databases [1996] OJ L 028/11. 61 Council Directive (Eec) 93/98 on Harmonizing the Term of Protection of Copyright and Certain Related Rights [1993] OJ L 290/9; RL Bard Copyright Duration: Duration, Term Extension, the European Union, and the Making of Copyright Policy (Sweet & Maxwell London (1999)). 62 T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39 Journal of the Copyright Society of the USA 289; S Ricketson 'Originality in Anglo-Australian Law' (1991-92) 39 Journal of the Copyright Society of the USA 265; G Schricker 'Farewell to the "Level of Creativity" (Schopfungshohe) in German Law?' (1995) 26 IIC 41; MJ Tawfik '"Aussie Rules" on the Boundaries of Copyright Protection in Factual Compilations' (2001) 2 Oxford U Commonwealth L J . 63 L Robinson 'The Global Response to Digital Music Piracy' (2000) 7 UCLA Ent L Rev 357. 64 MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; RR Kwall 'Preserving Personality and Reputational Interests of Constructed Personas through Moral Rights: A Blueprint for the Twenty-First Century' (2001) 38 U of Illinois L Rev 151; BS Hayes 'Integrating Moral Rights into U.S. Law and the Problem of the Works for Hire Doctrine' (2000) 61 Ohio State L J 1013; LA Pettenati 'Moral Rights of Artists in an International Marketplace' (2000) 12 Pace Int'l L Rev 425; L Nakashima 'Visual Artists - Moral Rights in the United States: An Analysis of the Overlooked Need for States to Take Action' (2000) 41 Santa Clara L Rev 203. 65 Art 6 bis. 66 For the American discussion see: RR Kwall 'Preserving Personality and Reputational Interests of Constructed Personas through Moral Rights: A Blueprint for the Twenty-First Century' (2001) 38 U of 20

Illinois L Rev 151; MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; JC Ginsburg 'Art and the Law: Suppression and Liberty Have Moral Rights Come of (Digital) Age in the United States?' (2001) 19 Cardozo Arts & Ent L J 9; LA Pettenati 'Moral Rights of Artists in an International Marketplace' (2000) 12 Pace Int'l L Rev 425; L Nakashima 'Visual Artists - Moral Rights in the United States: An Analysis of the Overlooked Need for States to Take Action' (2000) 41 Santa Clara L Rev 203. For the Australian discussion, see: J McDonald and T Catanzariti 'Australia: Copyright - Moral Rights' (2001) 12 Ent L Rev N29; A Fitzgerald and F Deffenti 'Australia: Copyright - Copyright Amendment (Moral Rights) Act 2000' (2001) 23 EIPR N35; K Gettens 'Australia Now Has "Moral Rights": Copyright Amendment (Moral Rights) Act 2000' (2001) 12 Ent L Rev 129; E Adeney 'Defining the Shape of Australia's Moral Rights: A Review of the New Laws' (2001) 4 IPQ 291. 67 M Blakeney 'Intellectual Property in the Dreamtime - Protecting the Cultural Creativity of Indigenous Peoples' (1999) WP 11/99 OIPRC Electronic Journal of Intellectual Property Rights; K Puri 'Is Traditional or Cultural Knowledge a Form of Intellectual Property?' (2000) WP 01/00 OIPRC Electronic Journal of Intellectual Property Rights; AR Riley 'Recovering Collegctivity: Group Rights to Intellectual Property in Indigenous Communities' (2000) 18 Cardozo Arts & Ent LJ 175; MT Sundara Rajan 'Moral Rights and the Protection of Cultural Heritage : Amar Nath Sehgal V. Union of India' 2001 10 International Cultural Property Society 79. 21

Part D: Future Possible Research Areas

In the light of the foregoing review of current IP research, the following suggestions may be made for possible future areas of research.

Creators–Consumers Conflict

It has been seen that copyright, as well as moral rights and other IP rights, is inherently caught between the interests of the creators, on the one hand, and the interests of the consumers, on the other. The need to resolve this tension is an issue which has received considerable attention in the past. It rightly continues to occupy the IP agenda.

Surveys to examine the creators-consumers interests may be useful to clarify specific issues. If an adjustment is suggested to some specific aspect of IP law, an examination of the interests of creators and consumers might precede any legal proposal for amendment or resolution. Any such survey should be conducted by an independent research body to reduce the risk of sectoral bias.

Empirical Research

Another aspect that deserves highlighting is that of empirical research. There is an extensive literature theorising on the impact of IP law on cultural, social, psychological and economic aspects of society. Contradictory claims are common. 22

For example, claims are made about how IP law is a prerequisite for the development of culture, counterpointed by claims that IP law in fact restrains cultural development.68 Claims are made that IP law restricts the practical freedom of speech, while other claims assert that copyright enables, in practical terms, free expression.69

Conflicting claims about the economic efficiency of specific IP regulations are also common.70

This report notes the lack of empirical research in this area. While some empirical research investigates the economic efficiency of patents,71 there seems little equivalent for copyright. This may be explained partly by the fact that patents are registered and appear in corporate portfolios, while copyrights are typically not so registered and may not appear on any balance sheet. Nevertheless, this phenomenon does not explain the lack of almost any empirical data.

An example of possible research is to compare the creativity of employees in the course of their employment with the creativity of freelancers producing similar works outside an employment relationship. So a comparison which could be made between the efficiency of the copyright software industry with that of shared open source software. More generally, research could be carried out to compare the productivity of creators who own their own copyrights and creators who do not. 23

Empirical research could also examine the psychological impacts of copyright-related creativity vs. non-copyright-related creativity. Such research might assist in verifying

(or not) recent trends in copyright theories claiming copyright to be essential to the personhood of authors.72 The theoretical interest of such claims would acquire a new dimension were they supportable empirically.

68 M Spence 'Passing Off and the Misappropriation of Valuable Intangibles' (1996) 112 LQR 472; PE Geller 'Must Copyright Be for Ever Caught between Marketplace and Authorship Norms?' in A Strowel (ed) Of Authors and Origins : Essays on Copyright Law (OUP Oxford 1994) 159; J Gaines Contested Culture : The Image, the Voice, and the Law (University of North Carolina Press Chapel Hill 1991). 69 RC Denicola 'Copyright and Free Speech: Constitutional Limitations on the Protection of Expression' (1979) 67 California L Rev 283; P Goldstein 'Copyright and the First Amendment' (1970) 70 Columbia L Rev 983; MB Nimmer 'Does Copyright Abridge the First Amendment Guarantee of Free Speech and Press?' (1970) 17 UCLA L R 1180; P Samuelson 'Reviving Zacchini: Analyzing First Amendment Defenses in Right of Publicity and Copyright Cases' (1983) 57 Tulane L Rev 836; N Weinstock Netanel 'Copyright and a Democratic Civil Society' (1996) 106 Yale L J 283. 70 See above at page 16. 71 See for example: P Geroski, S Machin and J Van Reenan 'The Profitability of Innovation Firms' [1993] RAND Journal of Economics; Z Griliches 'Market Value, R&D, and Patents' (1981) 7 Economic Letters; PA Hayward and CA Greenhalgh Intellectual Property Resreach: Relevant to Science and Technology Policy (Economic & Social Research Council 1994). 72 T Palmer 'Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects' (1990) 13 Harvard J L & Public Policy 775; L Becker 'Deserving to Own Intellectual Property' (1993) 68 Chicago-Kent L Rev 609; J Hughes 'The Philosophy of Intellectual Property' (1988) 77 Georgetown L J 287; MJ Radin 'Property and Personhood' (1982) 34 Stanford L Rev 957. 24

Criteria for and Scope of Protection

Finally, the lack of sufficient research on the criteria for protection and the scope of this protection should be noted.73

While contemporary literature is preoccupied by IP theory and the adaptation of IP law to the technological and international arena, perhaps more writing could deal with basic issues of criteria and scope of protection. For example, originality is an unclear concept in the present literature;74 other definitional criteria such as what is a “work” fare little better.

Such deficiencies may foster the feeling that copyright protects a wide range of products with little in common. A novel is a different kind of original literary work from a computer program. Yet both come under the same legal umbrella of “literary” and receive very similar protection. Should their term of protection be the same, or should their differences (in the process of creativity, economic shelf-life, etc.) imply that a different scope of protection should be provided?75

The aspect of IP law that differentiates protection according to the type of work deserves further consideration. While the trend in IP law until now has been to unify as many IP rights as possible under one heading, perhaps the alternative of specifying different rights for different works should now also be considered.

73 For references which do deal with these issues see, for example MJ Tawfik '"Aussie Rules" on the Boundaries of Copyright Protection in Factual Compilations' (2001) 2 Oxford U Commonwealth L J; NA Voegtli 'Rethinking Derivative Rights' (1997) 63 Brooklyn L Rev 1213; D Vaver 'Rejuvenating Copyright' (1996) 75 Canadian Bar Rev 69; S Ricketson 'The Boundaries of Copyright: Its Proper 25

Limitations and Exceptions: International Conventions and Treaties' [1999] 1 IPQ 56. 74 T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39 Journal of the Copyright Society of the USA 289; J Reytblat 'Is Originality in Copyright Law a "Question of Law" or a "Question of Fact?": The Fact Solution' (1999) 17 Cardozo Arts & Ent L J 181; S Ricketson 'Originality in Anglo-Australian Law' (1991-92) 39 Journal of the Copyright Society of the USA 265; G Schricker 'Farewell to the "Level of Creativity" (Schopfungshohe) in German Law?' (1995) 26 IIC 41; MJ Tawfik '"Aussie Rules" on the Boundaries of Copyright Protection in Factual Compilations' (2001) 2 Oxford U Commonwealth L J . The author of this report has written a Masters Thesis on this topic. See: Y Mazeh 'Originality as Source': Can the Cirterion for Originality in Copyright Law Be Justified? (M.Stud Thesis Oxford 2001). 75 T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39 Journal of the Copyright Society of the USA 289; S Breyer 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs' (1970) 84 Harvard L R 281; JC Ginsburg 'Creation and Commercial Value, Copyright Protection of Works of Information' (1990) 90 Columbia L Rev 1865; D Vaver 'Rejuvenating Copyright' (1996) 75 Canadian Bar Rev 69.

Selected Bibliography

Books and Reports

Websites http://www.law.cam.ac.uk/ipunit/home.htm http://www.oiprc.ox.ac.uk/. http://www.oiprc.ox.ac.uk/EJINDEX.html http://www.oii.ox.ac.uk/index.shtml http://www.ccls.edu/iplaw/ http://www.law.berkeley.edu/institutes/bclt/ http://www.kentlaw.edu/islt/ http://www.law.columbia.edu/centers/law&arts.htm http://www.fpc.edu/. http://navigation.helper.realnames.com/framer/1000/default.asp? realname=Intellectual+Property+Mall&cc=US&lc=en 26

%2DUS&frameid=1565&providerid=154&url=http%3A%2F%2Fwww%2Eipmall %2Efplc%2Eedu http://techcenter.gmu.edu/ http://www.law.gwu.edu/centers/dinwood.asp http://cyber.law.harvard.edu/ http://www.law.nyu.edu/ili/index.html http://law-science-tech.stanford.edu/index2.html http://ml.ua.es/ http://www.ndsge.ethz.ch/en/index.html http://www.ceipi.edu/cgi/index_gb.cfm?rep=leceipi http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM http://wwwlaw.murdoch.edu.au/apipli/main.html 1 This report will use the term ‘copyright’ in general to refer both to copyright and to moral rights.