Tag: creativity

Categories
Copyright Copyright Theory

Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Ryan Reynolds

In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute’s (ALI) Restatements have become an important tool for those in the legal community to better understand different bodies of law. Despite the success of the Restatements, however, their expansion into different areas of law has not always been received with open arms. Such is the case with the Restatement of Copyright. Since the project was revealed in 2015, many have voiced their skepticism of the project, questioning both its utility and whether its supporters truly want to restate the law or instead reform it. It is against this backdrop that Professor Justin Hughes’ forthcoming article, Restating Copyright Law’s Originality Requirement, finds itself situated.

In his forthcoming article, Prof. Hughes provides a detailed review of the draft Restatement’s treatment of one of the threshold requirements for copyright protection: the “originality” requirement. This requirement is established per §102(a) of the Copyright Act of 1976, which states that “[c]opyright protection subsists . . . in original works of authorship [emphasis added].” To determine whether a work is sufficiently original to be copyrightable, however, the Supreme Court created a two-pronged test in its seminal 1991 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. opinion. First, the work must be “independently created by the author,” which means that the author created the work without knowingly copying another’s work; second, the work must possess a “modicum of creativity”—which, by all accounts, is a very low bar.

Prof. Hughes concludes that, despite the inspiration for the project “by academics who felt the pace of reform of copyright law . . . has been too slow, [and] in the wrong direction,” the draft Restatement “stick[s] to a centrist, sometimes minimalist, narrative of Feist’s two-step framework.” This notwithstanding, Prof. Hughes notes that there are several “occasional missteps” and “a few points of genuine concern” with the current draft Restatement.

The Draft Restatement’s Treatment of The “Originality Requirement”

As noted by Prof. Hughes, the draft Restatement follows the general framework of Feist with § 5 “‘Originality: In General,’” stating in 5(b) that, “‘[f]or a work to be original, the work must be independently created by its author, as discussed in § 6, and must embody expression that is at least minimally creative, as discussed in § 7.’”

In his review, Prof. Hughes examines § 6 and § 7 respectively, beginning first with § 7’s treatment of Feist’s modicum of creativity requirement.

§ 7’s Treatment of the Modicum of Creativity Requirement

Describing it as the “true heart of the draft Restatement’s originality exercise,” Prof. Hughes commends the draft Restatement for what it does well while also criticizing it on several grounds. As for what he believes it does well, Prof. Hughes approves of the language shift from 7(a)’s, which focuses on “expression that is…minimally creative,” to 7(b) and 7(c)’s, which focuses on the author’s “choices.” While acknowledging that others have criticized the section for “this sleight of hand,” Prof. Hughes believes that this properly reflects the “shift from what courts are supposed to do to what courts actually do [emphasis in original].” As explained by Prof. Hughes, while Feist directs courts to look for a modicum of creativity, the Supreme Court’s 1903 Bleistein v. Donaldson Lithographing Co. decision prohibits judges from making “aesthetic judgments” on what is and is not creative. To resolve this tension, Prof. Hughes explains that courts look to the creative choices in the creation of a work to determine minimal creativity. Therefore, Prof. Hughes believes the draft Restatement’s focus on author’s “choices” accurately reflects the practice of courts; however, as it barely mentions Bleistein, it does not adequately explain to the reader what it is doing.

Further, Prof. Hughes criticizes § 7 for not following its treatment of author’s “choices” consistently where 7(c) is concerned. The relevant language of 7(c) says that “‘[t]he minimal-creativity requirement is not satisfied by choices . . . (such as . . . the tools used to produce the work . . . ).’” Prof. Hughes argues that this provision is incorrect, as “[t]he artist’s choice of which tools to use is part of the creative process. The sculptor’s choice of which chisel to pick up—width of blade, angle of blade, hardness of steel, etc.––may be an expressive choice.”

Another problem Prof. Hughes identifies with the draft Restatement of § 7 is that “Section 7(b) clearly seems intended to limit ‘selection, coordination, and arrangement’ as possible bases for original expression to ‘compilation’ works.” While the current draft of 7(b) states that, “In the case of a compilation [emphasis in original], choices regarding the selection, coordination, or arrangement of elements can satisfy the minimal creativity requirement even if those elements are not themselves original,” the 2018 version “did not have this limitation and was more open-ended.” As expressed by Prof. Hughes, “This intent to limit selection, coordination, and arrangement of bases for minimal creativity to the category of ‘compilation’ works is not an accurate reflection of case law [emphasis in original].”

Prof. Hughes also criticizes the draft Restatement both for what it chooses to say and chooses not to say about creativity. As to the former, while comments to § 7 do not provide a definitive definition of what is or is not original, they do provide a list outlining what minimal creativity requires. While to Prof. Hughes this list is helpful, it is also imperfect and raises concerns. One concern he highlights is its potential to raise the minimal-creativity bar, thereby narrowing copyright’s protections. To this point, Prof. Hughes highlights that, in the draft Restatement’s list, it provides that creativity must be “‘making non-obvious choices from more than a few options.’” As Prof. Hughes breaks down, “[t]hat appellate court dictum is directly contradictory to the Supreme Court’s statement in Feist . . . that the minimal-creativity requirement . . . can be met by ‘some creative spark, ‘no matter how crude, humble, or obvious’’[emphasis in original].”

As to what the draft Restatement chooses not to say about creativity, Prof. Hughes first believes that, to improve, the draft Restatement should “includ[e] . . . a discussion of how choices that manifest individual personality,” such as the decisions of photographers on how they take pictures, are “protectable original expression.” To this point, Prof. Hughes believes that “the most serious shortcoming” of § 7 is the Reporters’ decision not to address Bleistein—which, in the cited words of Prof. Barton Beebe, “‘directly connected ‘originality’ with personal expression.’” Second, Prof. Hughes believes that § 7 should acknowledge “‘intellectual’ choices” as “part of the minimal-creativity equation.”

§ 6’s Treatment of The Independent Creation Requirement

Moving onto his review of § 6, Prof. Hughes first points to its language: “A work meets the independent-creation criterion for originality if the author has contributed some expression to the work without copying that expression from any preexisting work.” While Prof. Hughes believes that the “formulation is ok,” he quickly points out issues he sees with the section’s comments and Reporters’ Notes. First, Prof. Hughes notes that Comment a’s statement “that ‘[f]or expression to be independently created, it must come from the mind of the author’ . . . arguably conflates the two Feist prongs”—a conflation he notes Comment b also likely commits. As Prof. Hughes explains, “the independent production requirement is that the expression be made or brought into the world by a person who had not experienced the same expression previously [emphasis in original],” and therefore “[i]t is not necessary that it ‘come from the mind of the author.’” As Prof. Hughes illustrates, “If a person throws a set of dice one hundred times and writes down the resulting dice totals from each roll on a list, that list was ‘independently-created’ under Feist.”

Prof. Hughes is also critical of the discussion of “novelty” in Comment b, which says that “‘the expression need not be novel or unique.’” While he believes the Reporters’ Notes make an important point, he sees the use of the word “novelty” as simply “too loaded with patent law baggage.” As he explains, the independent-creation standard for Copyright is different from patent law’s “novelty” standard, as “[c]opyright’s independent-creation requirement does not mean that the thing cannot already exist in the world.” Therefore, as there may be confusion in using the word “novelty,” Prof. Hughes recommends removing it altogether.

Lastly, Prof. Hughes also questions the amount of attention the Comments and Reporters’ Notes to § 6 dedicate to nonhuman authorship. After providing an overview of the current limited case law surrounding this issue, he concludes that, while “[t]hese issues are fun conjecture for academics, . . . [they] are so rarefied as to wonder why the draft Restatement discusses them at all.”

Categories
Copyright History of Intellectual Property Innovation Inventors Trade Secrets Trademarks Uncategorized

Strong IP Protection Provides Inventors and Creators the Economic Freedom to Create

Here’s a brief excerpt of a post by Terrica Carrington that was published on IPWatchdog.

CPIP went against the grain with this conference, and showed us, bit by bit, what our world might look like today without intellectual property rights. Music wouldn’t sound the same. Movies wouldn’t look the same. You wouldn’t be reading this on your smartphone or have access to the cutting-edge biopharma and healthcare products that you rely on. And some of our greatest artists and inventors might be so busy trying to make ends meet that they would never create the amazing artistic works and inventions that we all enjoy. In short, CPIP explored how intellectual property rights work together as a platform that enables us to innovate, share, and collaborate across industries to develop incredible new products and services at an astounding rate.

To read the rest of this post, please visit IPWatchdog.

Categories
Copyright Copyright Theory History of Intellectual Property Innovation Intellectual Property Theory Law and Economics Patent Law Patent Litigation Patent Theory Statistics Uncategorized

Intellectual Property, Innovation and Economic Growth: Mercatus Gets it Wrong

By Mark Schultz & Adam Mossoff

A handful of increasingly noisy critics of intellectual property (IP) have emerged within free market organizations. Both the emergence and vehemence of this group has surprised most observers, since free market advocates generally support property rights. It’s true that there has long been a strain of IP skepticism among some libertarian intellectuals. However, the surprised observer would be correct to think that the latest critique is something new. In our experience, most free market advocates see the benefit and importance of protecting the property rights of all who perform productive labor – whether the results are tangible or intangible.

How do the claims of this emerging critique stand up? We have had occasion to examine the arguments of free market IP skeptics before. (For example, see here, here, here.) So far, we have largely found their claims wanting.

We have yet another occasion to examine their arguments, and once again we are underwhelmed and disappointed. We recently posted an essay at AEI’s Tech Policy Daily prompted by an odd report recently released by the Mercatus Center, a free-market think tank. The Mercatus report attacks recent research that supposedly asserts, in the words of the authors of the Mercatus report, that “the existence of intellectual property in an industry creates the jobs in that industry.” They contend that this research “provide[s] no theoretical or empirical evidence to support” its claims of the importance of intellectual property to the U.S. economy.

Our AEI essay responds to these claims by explaining how these IP skeptics both mischaracterize the studies that they are attacking and fail to acknowledge the actual historical and economic evidence on the connections between IP, innovation, and economic prosperity. We recommend that anyone who may be confused by the assertions of any IP skeptics waving the banner of property rights and the free market read our essay at AEI, as well as our previous essays in which we have called out similarly odd statements from Mercatus about IP rights.

The Mercatus report, though, exemplifies many of the concerns we raise about these IP skeptics, and so it deserves to be considered at greater length.

For instance, something we touched on briefly in our AEI essay is the fact that the authors of this Mercatus report offer no empirical evidence of their own within their lengthy critique of several empirical studies, and at best they invoke thin theoretical support for their contentions.

This is odd if only because they are critiquing several empirical studies that develop careful, balanced and rigorous models for testing one of the biggest economic questions in innovation policy: What is the relationship between intellectual property and jobs and economic growth?

Apparently, the authors of the Mercatus report presume that the burden of proof is entirely on the proponents of IP, and that a bit of hand waving using abstract economic concepts and generalized theory is enough to defeat arguments supported by empirical data and plausible methodology.

This move raises a foundational question that frames all debates about IP rights today: On whom should the burden rest? On those who claim that IP has beneficial economic effects? Or on those who claim otherwise, such as the authors of the Mercatus report?

The burden of proof here is an important issue. Too often, recent debates about IP rights have started from an assumption that the entire burden of proof rests on those investigating or defending IP rights. Quite often, IP skeptics appear to believe that their criticism of IP rights needs little empirical or theoretical validation, beyond talismanic invocations of “monopoly” and anachronistic assertions that the Framers of the US Constitution were utilitarians.

As we detail in our AEI essay, though, the problem with arguments like those made in the Mercatus report is that they contradict history and empirics. For the evidence that supports this claim, including citations to the many studies that are ignored by the IP skeptics at Mercatus and elsewhere, check out the essay.

Despite these historical and economic facts, one may still believe that the US would enjoy even greater prosperity without IP. But IP skeptics who believe in this counterfactual world face a challenge. As a preliminary matter, they ought to acknowledge that they are the ones swimming against the tide of history and prevailing belief. More important, the burden of proof is on them – the IP skeptics – to explain why the U.S. has long prospered under an IP system they find so odious and destructive of property rights and economic progress, while countries that largely eschew IP have languished. This obligation is especially heavy for one who seeks to undermine empirical work such as the USPTO Report and other studies.

In sum, you can’t beat something with nothing. For IP skeptics to contest this evidence, they should offer more than polemical and theoretical broadsides. They ought to stop making faux originalist arguments that misstate basic legal facts about property and IP, and instead offer their own empirical evidence. The Mercatus report, however, is content to confine its empirics to critiques of others’ methodology – including claims their targets did not make.

For example, in addition to the several strawman attacks identified in our AEI essay, the Mercatus report constructs another strawman in its discussion of studies of copyright piracy done by Stephen Siwek for the Institute for Policy Innovation (IPI). Mercatus inaccurately and unfairly implies that Siwek’s studies on the impact of piracy in film and music assumed that every copy pirated was a sale lost – this is known as “the substitution rate problem.” In fact, Siwek’s methodology tackled that exact problem.

IPI and Siwek never seem to get credit for this, but Siwek was careful to avoid the one-to-one substitution rate estimate that Mercatus and others foist on him and then critique as empirically unsound. If one actually reads his report, it is clear that Siwek assumes that bootleg physical copies resulted in a 65.7% substitution rate, while illegal downloads resulted in a 20% substitution rate. Siwek’s methodology anticipates and renders moot the critique that Mercatus makes anyway.

After mischaracterizing these studies and their claims, the Mercatus report goes further in attacking them as supporting advocacy on behalf of IP rights. Yes, the empirical results have been used by think tanks, trade associations and others to support advocacy on behalf of IP rights. But does that advocacy make the questions asked and resulting research invalid? IP skeptics would have trumpeted results showing that IP-intensive industries had a minimal economic impact, just as Mercatus policy analysts have done with alleged empirical claims about IP in other contexts. In fact, IP skeptics at free-market institutions repeatedly invoke studies in policy advocacy that allegedly show harm from patent litigation, despite these studies suffering from far worse problems than anything alleged in their critiques of the USPTO and other studies.

Finally, we noted in our AEI essay how it was odd to hear a well-known libertarian think tank like Mercatus advocate for more government-funded programs, such as direct grants or prizes, as viable alternatives to individual property rights secured to inventors and creators. There is even more economic work being done beyond the empirical studies we cited in our AEI essay on the critical role that property rights in innovation serve in a flourishing free market, as well as work on the economic benefits of IP rights over other governmental programs like prizes.

Today, we are in the midst of a full-blown moral panic about the alleged evils of IP. It’s alarming that libertarians – the very people who should be defending all property rights – have jumped on this populist bandwagon. Imagine if free market advocates at the turn of the Twentieth Century had asserted that there was no evidence that property rights had contributed to the Industrial Revolution. Imagine them joining in common cause with the populist Progressives to suppress the enforcement of private rights and the enjoyment of economic liberty. It’s a bizarre image, but we are seeing its modern-day equivalent, as these libertarians join the chorus of voices arguing against property and private ordering in markets for innovation and creativity.

It’s also disconcerting that Mercatus appears to abandon its exceptionally high standards for scholarly work-product when it comes to IP rights. Its economic analyses and policy briefs on such subjects as telecommunications regulation, financial and healthcare markets, and the regulatory state have rightly made Mercatus a respected free-market institution. It’s unfortunate that it has lent this justly earned prestige and legitimacy to stale and derivative arguments against property and private ordering in the innovation and creative industries. It’s time to embrace the sound evidence and back off the rhetoric.