Tag: Kevin Madigan

Categories
Copyright Patents

CPIP Fall Conference Papers Highlight How Intellectual Property Rights Promote Global Prosperity

2016 Fall Conference flyerBy Alex Summerton

The George Mason Law Review has just published the papers from our Fourth Annual Fall Conference, Intellectual Property & Global Prosperity, which was held at Antonin Scalia Law School, George Mason University, in Arlington, Virginia, on October 6-7, 2016. The conference highlighted the importance of IP rights in the global marketplace and discussed how countries that leverage the availability of such protections enjoy creative, technological, and economic benefits far surpassing those that place less value on IP.

The newly-published papers are outlined below:

Kristina M. L. Acri, née Lybecker, Economic Growth and Prosperity Stem from Effective Intellectual Property Rights, 24 Geo. Mason L. Rev. 865 (2017)

Professor Kristina Acri of Colorado College discusses the importance of IP in incentivizing innovation by enabling firms to recuperate development expenditures. She explains how the static loss resulting from the patent system is far offset by the dynamic gains resulting from both increased innovation and public disclosure of knowledge. Acri identifies how countries employing strong IP regimes realize greater benefits in pharmaceutical innovations in the form of more available treatments and earlier implementation than countries with weaker protections. Furthermore, she highlights how robust IP systems encourage both revolutionary and incremental technology developments, promote domestic technology industries, and foster new employment opportunities for domestic labor forces.Key to this analysis are the fundamental economic forces that drive patented innovation. Acri discusses the importance of patents to innovator companies that must bear substantial fixed costs in the form of research and development, while generic competitors need only compete on negligible marginal costs with the innovators. She further explores how countries employing strong patent protections attract innovation businesses, as well as develop investment industries and educated workforces to support such innovation. Finally, Acri analyzes the positive correlation between a country’s rank as an innovative hot spot and the relative strength of its IP protections.

Walter G. Park, Averting a “Tripsxit” From the Global Intellectual Property System, 24 Geo. Mason L. Rev. 883 (2017)

Professor Walter Park of American University examines the benefits that developing countries can realize by implementing stronger IP right systems in the context of the globalized marketplace. He considers the effect the TRIPS Agreement has had on the relationship between developed and developing countries as a function of the grant rates for technologies originating from various countries and the balance of technology imports and exports. Park seeks to explain why certain countries have developed into technological powerhouses in the last few decades, while others have remained behind and lagged in technological production.Park looks at various factors that could have influenced, and in turn have been influenced by, these divergent development paths, such as trade practices, legal and sociological structure, and the flexibility that TRIPS gives member states to set their own schedules. He concludes that countries seeking to move themselves into modern economies can benefit greatly by examining and adjusting their IP regimes to encourage both domestic and foreign innovations and investment in the local territory.

Stan Liebowitz, The Case for Copyright, 24 Geo. Mason L. Rev. 907 (2017)

Professor Stan Liebowitz of the University of Texas explores several rationales for copyright, commenting on both economic and moralistic perspectives and discussing how, as a common misconception, many people fail to recognize that the property rights imparted by copyright truly enable economic returns. He focuses heavily on the economic case for copyright, seeking to dispel the myth that copyright is an economic monopoly. Liebowitz notes that popular works enjoy unusually high monopoly-like rents because they are uncommon and disproportionately successful as compared to unpopular works, not because they benefit from any economic monopoly imparted by copyright.Liebowitz discusses the concept of market-determined values of works in contrast to alternative systems such as centralized markets and patronage systems, and he concludes that these alternative systems lack the ability to incentivize the production of either high quality or high quantities of works. Finally, he explores the moral justifications for the remuneration of authors of successful works and discusses several alternative, although morally absurd, repugnant, or questionable, systems for securing payments for authors. Liebowitz posits that copyright enables markets to efficiently set the price of works and facilitates the determination of what society does and does not want produced.

Brett Danaher & Michael D. Smith, Digital Piracy, Film Quality, and Social Welfare, 24 Geo. Mason L. Rev. 923 (2017)

Professors Brett Danaher of Chapman University and Michael Smith of Carnegie Mellon University assess the impact of piracy of copyrighted works on the production, in terms of both quantity and quality, of artistic works, particularly films. They discuss the trade-offs of copyright enforcement versus piracy for consumers and producers, and they outline the expected welfare transfers that occur for both users who would and would not otherwise purchase the consumed media in the absence of piracy. Danaher and Smith also delve into the hidden impact that piracy and the non-enforcement of copyright laws have on markets that traditionally have relied on copyright.Danaher and Smith analyze the origination of high-quality works and examine how the rise of online piracy has caused a depression in the production of award-winning films in countries where copyright is laxly enforced. They further identify the collateral negative effects of the lack of copyright enforcement, including the frustration of attempts to secure funding for riskier projects. Danaher and Smith explain how this potentially robs the world of artistically meritorious, but financially unsafe, projects, thereby decreasing overall social welfare.

Kevin Madigan & Adam Mossoff, Turning Gold Into Lead: How Patent Eligibility Doctrine is Undermining U.S. Leadership in Innovation, 24 Geo. Mason L. Rev. 939 (2017)

CPIP Legal Fellow Kevin Madigan and Professor Adam Mossoff of George Mason University focus on recent developments at the Supreme Court that have made patenting high-technology inventions, particularly in the computer and biotechnology disciplines, more difficult and the consequential danger this poses to the United States’ position as a global innovation leader. They begin by reviewing the late-20th century jurisprudence that placed the U.S. in a position to be a technological force in the new millennium, especially with respect to the patentability of biotech and computer technology. Madigan and Mossoff then review more recent Supreme Court precedents that have led to a recession from a pro-patentability position while providing very little guidance on what could be patentable.Madigan and Mossoff go on to assess how this change in jurisprudence has resulted in a retreat from America’s position as a patent powerhouse. They point to cases where applications were rejected as unpatentable subject matter in the U.S. while the corresponding technologies were found to be patentable in Europe and China. Madigan and Mossoff also discuss the general trend of rejecting applications and invalidating patents with scant actual justification for why those applications and patents were patent ineligible. They conclude that data available from the last few years shows that the U.S. may be receding as a technological center since its patent laws have become unreliable for inventors and investors seeking protection.

Jiarui Liu, The Predatory Effects of Copyright Piracy, 24 Geo. Mason L. Rev. 961 (2017)

Professor Jiarui Liu of the University of San Francisco analyzes strategic behavior in copyright enforcement, particularly in countries that have not yet developed robust copyright industries and that have lessened incentive to invest in effective copyright policy. He discusses the phenomenon in China, where large copyright entities sometimes prefer pirating of their works to enforcement when they cannot expect any return for their work. As Liu explains, expecting the ability to develop a market and later determine how to recover payments for pirated copies, this lax enforcement of copyright policy results in a suppression of domestic industries that would compete with large entities.Liu outlines the reality of copyright enforcement in China, a lackluster effort on the part of the Chinese government that has led to rampant piracy of a wide range of copyrighted works. He explains how the piracy of software products, such as Microsoft Office, has stunted the development of new and competing technologies, a result implicitly approved by the market-dominant copyright owners. Liu compares this behavior of strategic non-enforcement to predatory pricing practices traditionally viewed as part of antitrust law, since it places the product into consumer hands at an initial loss in order to establish market dominance that will later enable the firm to exert monopoly power once its product has become the dominant force. Finally, Liu discusses possible mechanisms of corrective actions, both private and public, to combat non-enforcement as strategic behavior.

Categories
Copyright Infringement

Alliance for Creativity and Entertainment (ACE) Unites to Fight Online Piracy

hand holding remote pointed towards a TV screen showing a sports gameAs digital piracy shifts away from torrent downloads and towards unauthorized streaming and theft-based extortion, stakeholders from all parts of the creativity community are reassessing their efforts to fight online infringement. This week, a global coalition of creators and leading on-demand entertainment services joined forces to better address the ever-evolving threat that piracy poses not only to artists and copyright owners, but to consumers and end users. Named the Alliance for Creativity and Entertainment (or ACE), the group brings together 30 industry leaders—including Amazon, HBO, Warner Bros., Netflix, Disney, Hulu, and the BBC—to maximize consumer experience while ensuring the vibrant creative ecosystem they support is not undermined by piracy.

In an opening press release, the Alliance describes the recent exponential growth of digital distribution models and the development of nearly 500 online services that provide consumers with a legitimate on demand viewing experience. And while these platforms have revolutionized the way consumers watch TV and movies, they’ve also added great value to a creative sector that is responsible for $1.2 trillion and 5.5 million jobs in the US alone.

Unfortunately, illicit websites—which sometimes offer pirated works within hours of release—remain a burden to the creative ecosystem and the artists and platforms that drive it. Despite encouraging efforts both in the US and abroad to disable some of the worst offenders, the constant game of cat and mouse with mirroring websites and the emergence of illicit streaming sites continue to frustrate the fight against piracy. According to the press release, in 2016 there were an estimated 5.4 billion downloads of pirated films and television shows and 21.4 billion total visits to illicit streaming websites that profit from the theft and unauthorized distribution of creative works.

To combat these enduring acts of infringement, ACE brings together creative companies from all over the world to combine resources and work in concert with seasoned antipiracy experts at organizations such as the Motion Picture Association of America (MPAA). Specifically, “ACE will conduct research, work closely with law enforcement to curtail illegal pirate enterprises, file civil litigation, forge cooperative relationships with existing national content protection organizations, and pursue voluntary agreements with responsible parties across the internet ecosystem.”

By reducing illegal online piracy, ACE will also work to eliminate the risks to consumers that so often accompany the illegitimate distribution of creative works. A recent study by the Digital Citizens Alliance found that one in three pirate sites expose users to infectious malware and that visitors to these pirate sites are 28 times more likely to encounter malware than visitors to legitimate websites. The serious threats posed to consumers by malware and viruses include not only identity theft and financial loss, but the complete immobilization of entire computer systems, as seen in the recent Wannacry attack.

With pirate site operators finding new ways to profit from the theft and distribution of creative works, it’s encouraging to see a unified and global effort dedicated to reducing piracy, supporting creators, and protecting consumers.

 

Categories
Intellectual Property Theory

In Defense of an Inclusive IP Conversation

hand under a lightbulb drawn on a chalkboardIn a recent essay responding to a divisive critique of his book, Justifying Intellectual Property, Robert Merges makes clear from the start that he won’t be pulling any punches. He explains that the purpose of his essay, Against Utilitarian Fundamentalism, is to address the misleading and polarizing conclusions of Mark Lemley’s 2015 article, Faith-Based Intellectual Property, recapitulate the arguments he makes in Justifying IP, and show that those who approach intellectual property theory through a nonstrict empirical lens can still make meaningful contributions to the debate.

Merges exposes the key hypocrisy of Lemely’s article: By flippantly dismissing theories that deviate from his own, Lemley ultimately champions the same inflexible exclusivity he purports to condemn.

The underlying dispute between Lemley and Merges turns on what place nonstrict empirical research has in theoretical IP debates. Philosophical empiricism is the idea that experiment-based evidence is the best path to knowledge. Strict empiricists, such as Lemley, argue that hard data-driven evidence is the only evidence capable of supporting reasonable theoretical conclusions. (As an aside, Lemley’s insistence that strict empirical data is the only evidence worthy of scholarly discussion is curious given his vigorous promotion of theories that lack any empirical support. I should also note that his conclusions regarding the current state of the empirical evidence are controversial in their own right, particularly when combined with a willingness to make broad policy recommendations that ignore important empirical criticisms of the data supporting those recommendations.)

While nonstrict empiricism recognizes the importance of data-driven evidence, it allows for the inclusion of evidence-based investigations into human nature and the way people distinguish right from wrong. This research into the nature of duty and obligation—also known as deontology—is seen by nonstrict empiricists in the IP field as a significant supplement to data-driven evidence in reaching meaningful conclusions on theories of ownership and property.

Strict versus nonstrict empiricism debates—sometimes referred to as utilitarian v. deontological—are not new and are not confined to discussions of ownership and intellectual property. What makes the dispute between Lemley and Merges notable is that Lemley, in disparaging Merges’ approach to research, adopts a rigid position on what evidence merits consideration by IP theorists, making the claim that only hard, data-driven empirical research should influence scholarship. It’s a bold assertion that has led many to offer critical responses to Lemley’s essay (see here, here, here, here, and here), especially considering that the exclusive and narrow-minded approach to IP theory he accuses Merges of supporting is exactly what his essay ultimately promotes.

Lemley Misrepresents Alternatives to Strict Empiricism

Merges first takes issue with Lemley’s critique of nonstrict empirical IP theories as inherently suspect due do their basis “on fundamental commitments that are resistant to counterarguments, particularly empirically-based counterarguments.” Lemley contends that these theories operate with a bias similar to blind religious faith, have an intrinsic disregard for reason, and have no place in scholarly discourse. According to Lemley, they are unscientific and unpersuasive views that cannot be seriously considered in discussions of IP law and policy. In his provocative essay, Lemley uses highly-charged rhetoric to associate nonstrict empirical theorists with religious fundamentalists, resorting to ad hominem attacks and scare tactics to argue that his foundational beliefs are the “one true path.”

Merges points out that by relegating all non-empirical theories into a single, derogatory category, and raising his preferred empirical/utilitarian theory to a “true path to enlightenment” status, Lemley commits the fatal error of promoting an exclusive approach to scholarly discourse. Lemley’s argument has roots in the works of Oliver Wendell Holmes and Richard Posner, who dismissed non-empirical foundations as incapable of being influenced by reason. But Merges repeats that he is “not rejecting empirical evidence of all kinds, but expressing honest doubts about the adequacy of the available evidence,” and that Lemley’s mischaracterization of this skepticism is “more in the way of propaganda than scholarship.”

Research on People’s Moral Intuitions Reveals Significant Shared Judgments About IP

Lemley conflates that which is empirical with that which is rational, assuming there is no empiricism in the study of people’s moral judgments. But Merges notes that deontologists, or those who study the nature of duty and moral obligation are “interested in shared judgments about right and wrong, rather than a strict and exclusive interest in empirical data about the consequences of different courses of action,” and that studies in this field can reveal important theoretical foundations to IP.

Discussing the importance of empirical evidence derived from studies on moral obligations, Merges presents a hypothetical ethical dilemma that has revealed “universal morals” shared across cultures, age groups, and other demographic categories. In the “trolley problem,” a person is presented with the scenario of an out of control trolley headed for a group of five bystanders, and the only way to avoid the trolley killing the entire group is to activate a switch that will divert the trolley to a path that will result in the death of one person. Another variation involves pushing one person in front of the train to save the group of five. Merges notes that researchers found widespread agreement across ethnicities, ages, and backgrounds about which actions were right and wrong, and that rather than based on “irrational institutions,” these judgments are based on a “universal moral grammar” hard-wired in all human beings.

These inherent principles have been directly tied to shared ideas regarding both tangible and intellectual property. Merges describes studies in which children are exposed to a person handling an object, then putting the object down, at which point someone else picks up the object. The children not only routinely infer ownership of tangible goods with first possession, but have also been found to associate creative labor with ownership. As Merges explains, “there are strong regularities in people’s thinking about ownership, fairness, and the importance of creative labor,” and these regularities are “less due to socialization in a particular culture and more due to a basic shared moral sense.”

Though strict empiricists criticize these findings as non-empirical forms of evidence, Merges rejects the idea that strictly empirical studies are the only form of rational and practical investigation. He confronts this argument by showing that empirical evidence focusing solely on consequentialism, or the final net consequence of an action, is not only largely impractical, but often leads to morally reprehensible outcomes.

Illustrating the impractical nature of strict consequentialism, Merges fills nearly an entire page with the myriad potential consequences of both strict and liberal liability standards for internet service providers in identifying copyright infringement. What’s clear is that the vast and complex consequences cannot warrant a “net grand total” conclusion of any kind, and that exercises in attempting to draw causal connections are hopeless. Merges also invokes a hypothetical example of enslaving writers and forcing them produce original content to show that, while it may be the most efficient way to deliver works into the market, it’s a utilitarian approach to IP that’s contrary to the shared moral ideas of right and wrong that societies invoke to reject such operations.

IP Theory Should be Inclusionary and Diverse  

Merges dedicates the end of his essay to a summary and defense of his arguments in Justifying Intellectual Property, including the explicit assertions that his ideas do not “have any claim to exclusivity,” and that his book promotes a “public space” in which differing opinions are not only welcome, but essential to a meaningful debate. For Faith-Based Intellectual Property to insist otherwise leads Merges to question whether Lemley has any real awareness of the work he so vehemently criticizes.

Discussing his pluralistic approach, Merges identifies four “midlevel principles” that serve as a bridge between those with differing foundational commitments to IP. According to Merges, proportionality, efficiency, nonremoval or the public domain, and dignity make up these midlevel principles and create an “overlapping consensus” among scholars and theorists with otherwise conflicting views. Offering an example of this consensus, Merges discusses a recent amicus brief that both he and Mark Lemley cooperated and agreed on. Merges explains that the fact that the two authors could discuss and agree on case outcomes and underlying policy rationales directly refutes Lemley’s conclusion that the sides have “nothing to say to each other.”

Concluding his essay, Merges maintains that Justifying Intellectual Property seeks to formulate a liberal theory of IP while respecting all manners of approaches, and that the book “neither predicts nor expects universal agreement.” And while Merges accepts that some may accuse the book of being wrong, naïve, boring, or didactic, to accuse it of being resistant to inclusive discourse and reasoned arguments reveals an unawareness of its actual content. Lemley’s response is an unfortunate reaction to an open assessment of the ways those with differing views can come together. Ironically, Lemley promotes the very same exclusive approach to scholarly debate that he claims to reject.

 

Categories
Copyright Legislation

Register of Copyrights Selection and Accountability Act is First Step Towards a Modern Copyright Office

U.S. Capitol buildingThe House Judiciary Committee today overwhelmingly approved the bipartisan Register of Copyrights Selection and Accountability Act by a vote of 27-1. Introduced last Thursday by Chairman Bob Goodlatte and Ranking Member John Conyers, Jr.—with the support of Senate Judiciary Committee Chairman Chuck Grassley, Ranking Member Dianne Feinstein, and Senator Patrick Leahy—the Act is the first legislative effort to follow a four-year review of U.S. Copyright law and aims to kick-start an overdue modernization of the United States Copyright Office (USCO).

Focusing on the selection process of the Register of Copyrights, the concise bill requires the Register to be nominated by the President of the United States and subject to confirmation by the U.S. Senate, rather than appointed and dismissed at the pleasure of the Librarian of Congress. Today’s markup saw the inclusion of an amendment that would create a panel—made up of the Speaker of the House, President Pro Tem of the Senate, House and Senate Majority and Minority Leaders, and the Librarian of Congress—tasked with submitting a list of three qualified nominees to the President, who would then nominate an individual subject to confirmation by the Senate. The bill reflects the need for greater stakeholder and Congressional input in the selection of a leader Congress looks to for expert advice and analysis on the copyright system, and it represents the first step in an unquestionably necessary Copyright Office modernization effort.

In 2013, the House Judiciary Committee began a comprehensive bipartisan review of the copyright system that included 20 hearings, testimony from over 100 witnesses, and a listening tour that invited input from copyright stakeholders across the country. According to the Committee, the goal of the review was “to determine whether the copyright laws are still working in the digital age to reward creativity and innovation.” In December 2016, the first policy proposal to come out of the review focused on Copyright Office modernization and stressed the need for information technology (IT) upgrades, the creation of advisory committees and a small claims system, and overall decision making autonomy.

The Copyright Office is currently part of the Library of Congress, a legislative government agency and the main research arm of the U.S. Congress. The Office’s budget and leadership are determined by the Library, which is able to make important decisions independent of any outside review or accountability. It’s a curious arrangement, different from most other federal agencies whose leadership is subject to the checks and balances of an executive nomination and Congressional confirmation process.

As former Registers of Copyrights Ralph Oman and Marybeth Peters point out in a recent letter to Congress, the Copyright Office’s residence in the Library of Congress is a largely the result of a historical accident from the late 19th century. In 1870, Librarian of Congress Ainsworth Rand Spofford convinced Congress that copies of works submitted for copyright registration should be deposited to the Library to help build its collection, and thus the Copyright Office came under the authority of the Library. But nearly 150 years later, the Library of Congress—due to its own unique mission and approach to copyright law—is not best positioned to oversee the operation of an agency in need of reform.

There’s no dispute that the Copyright Office is in need of a facelift. For years, the Office has been underfunded, understaffed, and undervalued, making growth and development with the digital age all but impossible. Before her unexpected ouster, Register Maria Pallante provided Congress with a Register’s Perspective on Copyright Review that included a detailed list of deficiencies within the Office in need of improvement. While Pallante is no longer leading the Copyright Office, her concerns were echoed by stakeholders during the review hearings and listening tour, and Congress has recognized the need to begin an extensive modernization effort.

The copyright system is vitally important to the U.S. economy. According to a 2016 report by the International Intellectual Property Alliance, core copyright industries contributed over $1.2 trillion to the U.S. GDP and employed more than 5.5 million U.S. workers. Despite unfounded claims that its role is “mundane” and leader inconsequential, the Copyright Office plays a central role in the copyright system by providing expert reports and advice to Congress on a variety of copyright-related issues. Section 701(b) of the Copyright Act charges the Register of Copyrights with a number of meaningful duties, and Congress regularly looks to the Register and the Office for input on the development of copyright law.

Making the Register a presidential appointee with the advice and consent of the Senate is necessary to ensure that all stakeholder concerns are addressed prior to confirmation and that the Register remains accountable to Congress. Since the unprecedented removal of Register Pallante in October, there is no permanent Register of Copyrights in place, and the current Librarian of Congress is taking a highly unusual internet survey-based approach to determine the qualities of the next Register. The direct line of communication to the USCO that Congress enjoyed in the past has been disrupted, and consequential decisions are being made with little accountability or regard for Congress’s important role in the process.

These troubling developments are evidence that the system needs to change, and it’s imperative the next Register be subject to the same processes used to select the leaders of equally important government agencies. Only when the value of the Copyright Office is recognized and its infrastructure and operations updated can the system begin to modernize and keep up with the creative culture it serves.

Categories
Copyright

Kodi Software Enabling Widespread Copyright Infringement

hand holding remote pointing at television showing a sports gameAwards season always seems to arrive with new stories about how piracy is affecting the film industry and the way we watch movies. Whether it’s a promotional screener that was stolen and uploaded to a torrent site, or the latest software that allows users to download or stream pirated content, the tales are reminders of the enduring problem of online copyright infringement.

This year, when talking to people (outside of the copyright law world) about whether they’d seen certain Oscar-nominated films, the same name kept coming up: Kodi. Specifically, users described downloading the Kodi app to an internet connected device, then adding “plug-ins” or “add-ons” that deliver an extensive library of streaming TV shows and movies, including Moonlight, La La Land, and other Best Picture nominees. Though Kodi’s controversial popularity in the UK has been well-chronicled of late, the software is now becoming the preferred way to stream pirated content in the US, and it’s particularly discouraging because while Kodi is not in itself an illegal service, it is blurring the lines of accountability and contributing to massive IP theft.

Billing its product as “open source home theater software,” Kodi is a free media player application that allows users to view streaming media, such as videos, music, podcasts, and videos from the internet on a variety of platforms. Its open source, cross-platform nature enables interaction with third-party devices designed to facilitate infringement by including add-ons that deliver pirated content. Sales of pre-programmed “Kodi boxes” have become widespread in the UK, mostly because of their incorporation of the illicit add-ons. Kodi box popularity is catching the attention of rights holders and broadcasters such as the BBC, Sky, and the Premier League, and the UK’s Intellectual Property Office (IPO) just announced an investigation into the boxes.

The group behind Kodi recently acknowledged its connection to piracy, and pledged a renewed effort to distance itself from copyright infringement by going after unauthorized uses of its “Kodi” trademark. Unfortunately, they made the same promise in 2014, and Kodi-related piracy has grown exponentially. It’s also interesting that Kodi is threatening to enforce its own IP rights in an attempt to get people to stop “dragging our name through the muck,” while they simultaneously disregard the rights of the countless creators and copyright owners whose works their software helps pirate. In the same announcement warning of the plan to curb unauthorized use of its trademark, Kodi Product Manager Nathan Betzen displays a lack of concern for other victims of infringement.

“Team Kodi maintains an officially neutral stance on what users do with their own software. Kodi is open source software, and as long as the GPL [General Public License] is followed, you are welcome to do with it as you like.”

In the United Kingdom, a concerted effort was just announced to go after the source and target the servers feeding the illicit streams to the Kodi add-ons. Initially obtained by the English Premier League—the top-tier football (or soccer) organization in the UK—a High Court injunction will allow the League to compel the largest ISPs in the country to block the actual source of pirated streams, rather than engage in website whack-a-mole. The strategy involves going “up the content tree” to attack the servers where the streams originate, and for the moment, it seems that the ISPs are willing to cooperate.

In the US, in lieu of acquiring pre-programmed Kodi boxes, users are downloading the Kodi software directly to laptop computers, Amazon Fire Sticks, or smart TVs, and adding the illicit add-ons themselves. It makes going after Kodi for infringement difficult because its product is essentially a media player and is not actually distributing or making copies of the movies and TV shows it streams. Like the VCR thirty years before it, Kodi is capable of non-infringing uses and is likely to claim that it has no control over the bad actors using their product to infringe.

But liability for copyright infringement can extend to those who facilitate theft under the theory of secondary liability, which includes both vicarious and contributory liability. Just last year, in BMG v. Cox, a federal judge upheld a $25 million penalty against ISP giant Cox Communications for contributory and willful copyright infringement. Despite arguing that its Internet service is just like the VCR in Sony v. Universal, and therefore should not be liable for infringing acts of its customers, Cox was found to have made a material contribution to the infringement simply by providing the means—also referred to as the “site and facilities”—for a user to infringe, and to have had knowledge of repeated instances of infringement. This combination of material contribution and knowledge satisfies the test for contributory infringement, and the District Court’s finding represents a clear assignment of accountability to those that turn a blind eye to piracy.

While Cox’s failure to act in the face of blatant, repeated infringement may represent a more egregious example of contributory infringement, one could argue that Kodi is similarly exposing itself to secondary liability. By providing software that facilitates extensive piracy, Kodi surely makes a material contribution to infringement, and the Kodi group is well aware that its product “has grown to become one of the most-used pieces of software through which people can stream, download and otherwise obtain copyright infringing content.”

Though Kodi is different than Cox’s Internet service in that once the software is downloaded, its decentralized architecture means Kodi has no ability to monitor or control what it’s used for, the Supreme Court has made clear in MGM v. Grokster that the decentralized nature of software is not enough to escape contributory liability. If Kodi’s primary use can be shown to be streaming infringing content, it could face the same fate as some other illicit streaming services such as Popcorn Time. Those behind Kodi know that contributory liability for open-source software is somewhat of a gray area of copyright law that allows their product to exist, but as the Kodi name becomes more and more synonymous with piracy, it may become harder to avoid accountability.

Categories
Copyright

Trusted Notifier Program Defended Against Misleading Rhetoric

a laptop screenOne year ago, domain name registry Donuts, Inc. and the Motion Picture Association of America (MPAA) entered into an agreement termed the Trusted Notifier Program in a joint effort to combat piracy. The voluntary initiative “introduced a new way to work towards mitigation of clear and pervasive cases of copyright infringement,” and according to Donuts’ one-year summary, has been a success for “rights owners, registrants and the public at large.”

While the program and similar voluntary agreements are not without their detractors, it’s important to separate good-faith criticism from misleading rhetoric. In an article posted this week, tech pioneer and Internet security expert Paul Vixie responds to a recent paper criticizing the Internet Corporation for Assigned Names and Numbers (ICANN), trade associations, and standards organizations for implementing a “privately ordered online content regulation.”

The rebuttal deconstructs University of Idaho Law Professor Annmarie Bridy’s paper piece by piece, exposing many of the claims as unsubstantiated or misleading. Among other things, Mr. Vixie’s article provides the following evaluations:

  • No evidence is offered in support of the claim that the sole or primary purpose of voluntary efforts such as the Trusted Notifier Program has been to develop a “large-scale program of privately ordered online content regulation.”
  • Claims that “less sophisticated and economically powerful” ICANN stakeholders take a backseat to rights-holder organization influence have been demonstrated to be false by the existence of new generic top-level domain (gTLD) programs.
  • No evidence is offered in support of the claim that copyright owners “appear to be laying the groundwork for a broad program of DNS-based enforcement, with the long-term goal of implementing a UDRP-like procedure for claims of piracy and counterfeiting that are wholly unrelated to any bad-faith or confusing use of domain names.”
  • The unregulated nature of the Internet has acted as a “stay out of jail free” card for millions of criminals, and some redress and balance is both inevitable and necessary.

In conclusion, Vixie notes that the Trusted Notifier Program represents the engagement of Internet industry stakeholders with rights-holder communities to create efficient takedown-related activities, which is exactly what the Internet technical community told rights holders they should pursue instead of SOPA. The article advises that “asking interested parties not to cooperate on matters of their aligned interest will never be effective. Notice and takedown, at scale, without borders, requires mutual cooperation. And that’s what the Trusted Notifier Program is meant to effect.”

March 27, 2017, update: Bridy’s response to Vixie’s post can be read here.

Categories
Copyright Theory

What Would Judge Gorsuch Mean for Fair Use?

U.S. Supreme Court buildingOn February 1st, President Trump nominated Neil Gorsuch to fill the Supreme Court seat left vacant by the passing of Justice Antonin Scalia. The announcement opened the floodgates of prognostication as to how the appellate court judge from Colorado might sway the Court in the coming terms, with forecasters pouring over his past decisions in an attempt to get into the head of the potentially game-changing jurist. And while Gorsuch’s views on intellectual property remain largely unknown, a closer look at his track record provides some insight into his understanding of copyright law that should leave creators and copyright owners optimistic.

In the forty years since the Copyright Act was enacted, courts have expanded the “transformative” fair use doctrine to encompass a variety of uses whose original expressive contribution is difficult, if not impossible, to separate from the underlying work. In particular, courts have applied fair use to cases where the purported fair user merely transforms the purpose of an underlying work, without transforming the underlying work itself and without contributing any original artistic expression. This is a discouraging trend that disregards copyright’s promotion of creativity by encouraging the addition of new expression to old. Fortunately, this trend could be offset by lawmakers and judges with an understanding of the originality requirements of copyright law.

As a federal judge for the U.S. Court of Appeals for the Tenth Circuit, Gorsuch oversaw 14 cases concerning various forms of IP, four of which involved copyright claims. Despite finding for the accused infringer in all four copyright cases, one of those decisions stands out and reveals an appreciation for the originality and new expression required of copyright–a requirement often ignored by proponents of ever-expanding notions of fair and transformative use.

In the 2008 case Meshwerks v. Toyota, the plaintiff brought a copyright infringement claim against Toyota for the unauthorized use of digital automotive models in a television commercial. The works in question were computerized two-dimensional models created by Meshwerks and based on existing Toyota vehicle designs. Though the parties had originally contracted for the designs to be used on Toyota’s website, Toyota began running TV ads featuring the designs, and Meshwerks brought an infringement claim based on the unauthorized use.

The District Court in Utah granted summary judgment in favor of Toyota, finding that Meshwerks’ designs were not sufficiently original to qualify for copyright protection. Meshwerks then appealed to the U.S. Court of Appeals for the Tenth Circuit in Colorado, where Gorsuch had served since his confirmation in 2006.

Approaching the question of originality central to the case, Gorsuch agreed with the district court that the Meshwerks models contributed no new expression to Toyota’s preexisting designs and therefore were not eligible for copyright protection. In the opinion, Gorsuch refers to the “sine qua non of copyright” that requires at least a degree of originality in protectable works of authorship so that copyright will “reward[ ] (and thus encourag[e]) those who contribute something new to society.” The decision goes on to address Meshwerks’ depiction of Toyota’s three-dimensional physical objects in a two-dimensional digital medium, asserting that the “putative creator who merely shifts the medium in which another’s creation is expressed has not necessarily added anything beyond the expression contained in the original.”

Though Meshwerks didn’t involve fair use claims, Gorsuch’s focus on the lack of original expression in simply shifting mediums reflects the Supreme Court’s articulation of transformative fair use in Campbell v. Acuff Rose, a case that he experienced first hand as a law clerk for Justice Anthony Kennedy. Campbell involved the unauthorized parody of a popular Roy Orbison song, and in its fair use deliberation the Court focused intently on “whether the new work merely supersedes the objects of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” (emphasis added). The Court found that if the new work sufficiently transforms the original through the additional of new expression, it may qualify as fair use.

But the idea of what qualifies as “transformative” has come to include works of transformative purpose, which often are little more than extensive, for-profit acts of wholesale copying of entire works that merely offer the underlying works in a new context. The transformative purpose theory has been applied to the mass scanning and digitization of copyrighted materials for projects such as Google Books, where the creation of a searchable database is considered transformative, despite the fact that the underlying works were not transformed in any original or expressive way. This change in context is effectively the same as the shifts in medium denounced in Meshwerks, and Gorsuch’s ideas about the need for new and original expression not only echo the Supreme Court’s interpretation in Campbell, but also reflect an understanding of the core principle of originality in copyright law.

As the digital age enables copying at the click of a mouse, it’s important to recognize the limits of fair use and realize that while an argument could be made that some of these recent acts of copying are transformative, others are dangerously close to the mere shifts in medium Gorsuch warned against in Meshwerks. Some instances of format-shifting that have been found to be fair use—such as converting full-size images to thumbnails in a search engine—provide an example of unauthorized uses that could benefit from a Gorsuch-style analysis of originality. While few would argue that the owner of a legitimate copy of an album or movie shouldn’t be able to transfer the work to different devices, allowing for a broad fair use application to format-shifting creates a slippery slope for shifts in medium that add no original expression.

Fortunately, despite pressure from groups who would like to see an expansion of fair use that would effectively annihilate copyright law, the Copyright Office recently refused to adopt an exemption that would have allowed broad, noncommercial format-shifting of motion pictures distributed on DVDs, Blu-ray discs, and downloaded files. The Office’s final rule found that proponents of the exemption “failed to establish a legal or factual record sufficient to establish that the space- or formatshifting of audiovisual works, e-books, and other copyrighted works constitutes a noninfringing use,” and that “fair use, as it stands today, does not sanction broad-based space-shifting or formatshifting.” Notwithstanding its refusal to grant the exemption, the Copyright Office recommended that format-shifting policy judgments be left to Congress, further highlighting the need for leaders who understand the goals of copyright law.

As different–and often misguided–theories of what constitutes fair use flood the internet during Fair Use Week, it’s important to acknowledge the doctrine’s purpose as a tool to promote the combination of original expressive works and honor the goals of copyright law. As Gorsuch says in Meshwerks, copyright law intends to encourage those who contribute something new to society, “while also allowing (and thus stimulating) others to build upon, add to, and develop those creations.” Gorsuch’s words invoke the same principles endorsed in Campbell, which says, “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . .”

As copyright experts have pointed out (see here, here, and here), many of those celebrating fair use this week misunderstand the doctrine and want the public to believe that copyright law and fair use are at odds. It’s a false dichotomy that betrays the purpose of copyright law and risks devaluing the original works whose expressions truly enrich society. It’s a risk that could threaten both the quality of future works and the creative ecosystem they facilitate, but it’s a risk that can be offset by leaders, advocates, and judges with an appreciation for the true intent of copyright law and the fair use doctrine.

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Copyright

IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights

Washington D.C. at nightIn a letter submitted to House Judiciary Committee today, nine IP scholars (organized by CPIP’s Sandra Aistars) express their support for the Committee’s proposal to modernize the Copyright Office. The letter identifies three major challenges facing the Copyright Office, including “(1) insufficient funds, staff, and infrastructure to efficiently perform its core functions; (2) operational impediments stemming from its integration with the Library of Congress; and (3) potential risk of constitutional challenges to its decision-making authority should the Office take on increased regulatory or adjudicatory responsibility.”

The IP scholars laud the Committee’s recommendation that the Office be led by a principal officer of the government, nominated and confirmed like other senior government officials. The scholars also express their concern with the Library’s highly-unusual method of using a SurveyMonkey questionnaire to identify the knowledge, skills, and abilities required to run the Copyright Office.

On December 16th, the newly-appointed Librarian solicited the public to “provide input to the Library of Congress on expertise needed by the Register of Copyrights.” The survey consists of the following three questions:

    1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

 

    1. What should be the top three priorities for the Register of Copyrights?

 

  1. Are there other factors that should be considered?

The survey then provides an area to upload additional comments and assures that the feedback “will be reviewed and will inform development of knowledge, skills and abilities requirements for the position.”

While there may be benefits to soliciting public input on the knowledge, skills, and abilities a Register of Copyrights should embody, as the IP scholars’ letter points out, relying on a limited SurveyMonkey experiment discounts the guidance codified in Section 701(b) of the Copyright Act. Section 701(b) already lists the functions and duties of the Register of Copyrights, including:

(b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions:

 

(1) Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.(2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters.

(3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority.

(4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations.

(5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.

Rather than crowd sourcing the job description, the Librarian should review the Copyright Act and consider candidates that would be best qualified to fulfill the explicit and established standards of 701(b).

By handing this over to anyone willing to fill out a SurveyMonkey form, the Library of Congress is politicizing a process that shouldn’t be politicized. The letter warns that “[w]hile it is often laudable to seek public input on important issues of policy, an online survey seeking input on job competencies from any internet user is an inefficient and inappropriate approach for developing selection criteria for this important role, particularly where such minimal background is provided to survey-takers and where there appears to be no mechanism to encourage constructive comments.”

As recently as April of last year, Fight for the Future incited an effort to spam the Copyright Office while it solicited comments regarding the DMCA notice and takedown process. Engaging in a campaign of misinformation, the advocacy group flooded the Office with automated “comments” that crippled the regulations.gov website during the last 48 hours of an important collection period. The Register’s selection process should not be handed over to Internet bullies and trolls.

The next Register of Copyrights will have an immediate and lasting effect on the administration of copyright laws, and the Library of Congress should respect long-standing norms as well as Congress’s instructions as embodied in the Copyright Act. The IP scholars’ letter reiterates that the statutory obligations of Section 701(b) require certain competencies of a Register of Copyrights and ensures that “the successful candidate can meet the management and leadership expectations attendant to a senior executive officer position in the federal government.” This is an important process that deserves more serious consideration than a SurveyMonkey poll.

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Copyright Uncategorized

Librarians’ Contradictory Letter Reveals an Alarming Ignorance of the Copyright System

U.S. Capitol buidlingOn December 14th, a group of librarians sent a letter to Congress explaining why they believe the Copyright Office should remain under the control of the Library of Congress. Written by University of Virginia Library’s Brandon Butler, the letter is a self-contradicting and uninformed response to recent recommendations on reform of the Copyright Office offered by leading members of the House Judiciary Committee. While the lawmakers’ report proposes overdue, sensible reforms to the framework of a department in need of modernization, the librarians’ letter favors a one-sided approach to reform and reveals a gross misunderstanding of how copyright law and the Copyright Office ensure public access to creative works.

The Letter Embraces the Very Conflict It Claims to Reject

The letter begins by criticizing another recent letter to Congress from former Registers of Copyright Ralph Oman and Marybeth Peters in which they question the recent firing of Register of Copyright Maria Pallante and discuss the urgent need for an independent Copyright Office. Butler takes issue with the former Registers’ suggestion that the Library of Congress and the Copyright Office have different priorities and distinguishable missions, insisting that if any tensions exist, they are a result of bias at the Copyright Office. Alleging that the former Registers and the Copyright Office are “on the side of authors and media companies,” Butler proclaims that libraries “in all their richness and complexity” truly serve the interest of all. It’s a nice-sounding theory, but unfortunately it’s completely inaccurate and soon contradicted by a palpable disregard for the rights of authors and creators.

Claiming that librarians and the Library of Congress don’t subscribe to the theory of an adverse dichotomy between authors and the public, the letter then reinforces this theory by suggesting the scales should be tipped in favor of the public. In one paragraph, Butler endorses the “important balance between the short-term, private interests of authors and intermediaries, and the long-term interests of the public.” Curiously, just after he lauds this “important balance,” it is abruptly discarded as a reflection of “a narrow conception” and “inimical” priorities that cause an unproductive tension between the Office and the Library of Congress. Soon after describing libraries as the “fulcrum” upon which the balance of copyright and the public interest rests, the letter declares that “[we] reject this false dichotomy between copyright and the public interest.”

Regardless of this hollow denunciation, it’s clear that Butler believes there is a conflict between the interests of authors and the interests of the public, as he preaches to it throughout the letter. After paying lip service to rising above tensions between copyright and the public interest, Butler distinctly pushes for a system that values libraries over creators and the rights in their works. Describing the “crucial parts” of the copyright system embraced by libraries and librarians, the letter lists “fair use, first sale, interlibrary loan,” and claims that “without them libraries as we know them in this country could not exist.” One might argue that more crucial to the existence of libraries are the creative works that line their stacks, but this reality doesn’t seem worth mentioning. In fact, Butler asserts that copyright law has a “fundamentally public-serving character,” contrary to the letter’s earlier emphasis on serving copyright owners, authors, and the public equally. After praising the balance, then rejecting it, the letter unequivocally elevates the importance of the access libraries provide over the contributions and rights of creators.

The Letter Fails to Take into Account a Complex Creative Economy Based on Property Rights

James Madison observed in Federalist No. 43 that “the public good fully coincides . . . with the claims of individuals.” The Founders of our country recognized that creative economies are built upon the property rights of authors and artists, and as CPIP’s recent policy brief on creative markets explains, they “had the foresight to recognize that the public ultimately benefits when this protection is secured by law.” Promoting the public interest by recognizing the importance of individual interests was a theory drawn from Adam Smith and his seminal The Wealth of Nations. In it, Smith explained that concerted efforts to benefit the public are often less effective—and less helpful to society—than uncoordinated individual efforts to pursue private interests, and that society benefits the most when individuals are empowered to create valuable goods and services by pursuing their own interests.

Embodying these principles, copyright empowers authors and creators to pursue their own private interests by granting them exclusive property rights in their works. These same property rights support creative industries and provide significant benefits by playing a key role in facilitating the myriad transactions that contribute to a vibrant creative economy grounded in free market principles. Among other things, these property rights enable the division of labor, encourage product differentiation and competition, and spur investments in the development and distribution of creative works. Copyright not only incentivizes the creation of works, but also the commercialization of these works through further development, marketing, and distribution.

Copyright’s intricate ecosystems are based on incentives that ensure the continued creation and distribution of original works of authorship, yet the librarians’ letter doesn’t seem to appreciate their significance or how they function. Butler dedicates much of the letter to emphasizing the importance of public access to copyrighted works, but access is only the final step in a complex system of investment, commercialization, and distribution of creative works. The librarians claim to “understand that copyright is a complex ecosystem,” but nothing in the letter validates this assertion. The only part of the creative economy they deem worth discussing is the end result of access, with all other imperative stages either not realized or ignored.

The Librarians Are Oblivious to a Broken System

Ending with a plea to Congress not to interfere with the current “relationship” between the Library of Congress and the Copyright Office, the letter claims the Library is in the best position to lead a desperately needed modernization initiative at the Office. It’s a bold claim, given that the Library stood by as the Office’s infrastructure became embarrassingly outdated and underfunded over the past twenty years. Before her untimely ouster, Register Pallante provided Congress with a perspective on copyright review that included a detailed list of deficiencies within the Office in need of improvement. Specifically, Pallante cited the diminishing number of fulltime employees and inadequate budget that have made it all but impossible to support growth and development at the Copyright Office:

The Copyright Office budget is consistently in the neighborhood of $50 million, of which $30 million is derived from fees paid by customers for registration and other services. The Library’s overall budget for 2015 is approximately $630 million, inclusive of the Copyright Office. Without taking anything away from the important duties or funding deficiencies in the rest of the Library, the Copyright Office’s resources are inadequate to support the digital economy it serves.

Pallante’s report goes on to discuss the serious information technology (IT) problems facing the Office, and to question the Library’s plan to address IT concerns by exerting more control over the Office’s departments and decisionmaking. The former Register was wise to question a plan that would give more control to an organization that has consistently failed to value or support the Copyright Office and its mission.

Further demonstrating just how out of touch they are with the realities of the current copyright law landscape, an affiliated group of librarians recently professed their faith in the Digital Millennium Copyright Act (DMCA) safe harbor system that is undoubtedly failing creators, copyright owners, and the public. In comments submitted to the Copyright Office as part of its study on the effectiveness of Section 512 of the DMCA, the Library Copyright Alliance (LCA) makes the absurd claim that the “safe harbors are working exactly as the stakeholders and Congress intended.” But, just before this assertion, the comments accuse copyright owners of abusing the DMCA’s notice and takedown process, and suggest amendments to the DMCA are necessary “to curtail this abuse.” Not only are the LCA’s comments utterly contradictory, they ignore substantial evidence and testimony from dozens of interested parties that the DMCA needs to be reformed and updated.

As CPIP highlighted in a recent examination of the state of the DMCA, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy, and courts continue to diminish service providers’ responsibility to cooperate with copyright owners to detect and deter infringement. The constant game of whack-a-mole with websites offering infringing content continues, and platforms such as YouTube are teeming with unauthorized works. Artist, creators and copyright owners have loudly voiced their frustration with the current system and called for reforms that better respect their rights. In the face of such obvious evidence of a broken system, to claim the DMCA is working exactly as intended speaks volumes of the librarians’ inability to recognize the reality of the situation.

It’s Time for Change at the Copyright Office

The House Judiciary Committee’s proposal on copyright reform is a response to years of listening “to the views and concerns of stakeholders from all sides of the copyright debate,” and it identifies modernization efforts that address the concerns of these interested parties. Since 2013, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet has conducted 20 copyright review hearings on the current state of copyright law which included testimony from 100 witnesses. In addition to the hearings, Committee Chairman Bob Goodlatte and Ranking Member John Conyers brought a copyright listening tour to Nashville, Silicon Valley, and Los Angeles where a wide range of creators, innovators, technology professionals, and users of copyrighted works had the opportunity to tell the Committee directly what changes they believe are needed to ensure U.S. copyright law evolves with the digital age.

The resulting policy proposals reflect a broad acknowledgment by those who participated  in the review that the Copyright Office must be updated to keep up with the digital culture it serves. Two of the most important steps in this modernization effort identified by the Committee include requiring the Office to maintain an updated digital database and granting the Office autonomy with respect to the Library of Congress. If Brandon Butler and the signatories of his letter had their way, the Copyright Office would remain under control of an organization that has proven it is unable to help propel the Office into the 21st century. It’s not particularly surprising that librarians would want the Library of Congress to retain control over the Copyright Office, but an overwhelming majority of creators, copyright law experts, and lawmakers recognize that the Office needs to move forward, rather than remain trapped in the past.

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Copyright Uncategorized

Digital Single Market Must Protect the Rights of All Authors and Publishers

Cross-posted from the Mister Copyright blog.

a CD resting against a stack of booksIn 2015, the European Commission unveiled a plan to “create a free and secure digital single market” that would expand and standardize the EU’s digital economy for the benefit of consumers. The strategy was named the Digital Single Market and one of its objectives is to modernize the EU copyright framework to fit the digital age. But while the plan includes the preservation of the rights of creators such as film producers and musicians, publishers of scientific and academic materials are subject to a notable carve out that stands to rob them of the rights in their works. It’s a peculiar exclusion that has provoked both authors and publishers to demand a proposal that will ensure they receive the same treatment as their fellow creators, and it’s critical that the European Commission respond to form a comprehensive policy that upholds the rights of all authors and copyright owners.

The Digital Single Market aims to break down regulatory barriers and unite 28 national markets into a single one that will enhance access to protected works by simplifying and speeding up the process for clearing rights. Though it sounds like a practical goal, the directive plans to do so through an expansion of exceptions to copyright that arbitrarily neglect the rights of some copyright owners. And while there may be a need to update copyright regulations in other industries, publishers and authors believe that the current legislative framework already strikes a sufficient balance that allows them to prosper while giving consumers a choice of works, accessible in a variety of ways at different prices.

In a response to the Digital Single Market regulations, the International Association for Scientific, Technical and Medical Publishers (STM) notes that Recital 33 of the Directive on Copyright in the Digital Single Market expressly excludes scientific, technical, and medical publishers from a publisher’s related right. The protection granted by virtue of a new publishers’ related right in Article 11 also does not extend to STM publishers, an oversight STM calls “disappointing, unwarranted and potentially discriminatory.” STM also points out that the vague language of the Directive on Copyright fails to adequately recognize scientific publishers as rightsholders.

The exclusion of these publishers represents a growing conviction that because scientific publications are used for educational and beneficial purposes, they should be subject to a broad fair use policy that allows for their distribution and reproduction free from copyright limitations. It’s a popular yet curious opinion that has been bolstered by digitalization projects like Google Books, which misappropriates the works of countless creators while claiming to build a resource that will benefit the public. But while the proliferation of educational texts is certainly a noble pursuit, the works should not be valued any less than other published materials and creative works that are afforded protections under the new directives.

As the UK Publishers Association makes clear in its position paper on the Digital Single Market, publishers are essential to the “curation, presentation and dissemination of research, knowledge and teaching materials” that ensures present and future generations can learn from and build upon existing works. Publisher developed tools already enable efficient and speedy access to educational materials, and copyright directives that do not provide clear protection for rightsowners could upset the production and availability of these works. The authors and publishers of scientific, technical, and medical texts invest years of research and writing – not to mention money – to produce their work, and depriving them of the right to control and realize a return on their investment could threaten the creation of future works.

The Publishers Association also maintains that while the Digital Single Market should apply to every European Union member, there is still a role for national markets with developed copyright mechanisms. Warning that not all aspects of a market can be homogenized, the Association affirms that different national cultures and languages treat copyright in specific ways, and that well-functioning licensing schemes which can operate across borders already exist. Essential in the development of a Digital Single Market is acknowledgement and respect for the national differences and cultural diversity that are the foundation of the success of the European Union.

The inclusion of well-defined publisher’s related rights in the Digital Single Market directives is crucial to the protection of the rights of academic authors and publishers and to the overall viability of the market for scholarly works. Publishing has embraced the development of new technologies and platforms and already represents one of the success stories of the digital age. Any modifications to the copyright mechanisms that have allowed scientific, technological, and medical scholarship to flourish must clearly guarantee the rights of all authors and publishers, because without them, the future of the European creative culture is at risk.