This is part of the real irony of SOPA, the bill currently being considered by the House of Representatives that would fundamentally alter how the Internet works in the U.S. in order to protect the traditional entertainment industries.  Such a bill, which would kill innovation in the name of protectionism, may be unconstitutional. That it is a bad idea is especially clear when we look at how other countries are considering adjusting their copyright laws precisely to better support innovation and economic growth.

In Brazil, a third draft of proposed copyright legislation has recently been released.  As Pedro Paranagua, a Brazilian copyright expert, tells us, there is both good and bad in the bill, but as I read his list of incorporated provisions, I am jealous of the attention being given to the real purpose of copyright, which is economic development through innovation.  Exhaustion of rights, what we call first sale in the U.S., would be defined in a way to prevent the recent debacle in which Omega abused copyright, in my opinion, to suppress legitimate price competition for its watches.  Collecting societies would be overseen by government watchdogs, and contract principles about serving the public interest and avoiding undue burdens would be explicitly incorporated into the copyright law.  Compulsory licenses would be available for uses of orphan works, and creators would have the explicit ability to dedicate their work to the public domain.  Finally, there is a proposed set of exceptions that covers at a lot of the socially beneficial uses that are still unreasonably controversial in the U.S.

Even one of the things that Pedro is nervous about, ISP liability under a notice and take down scheme, seems like a good idea that the U.S. must fight to maintain.  The notice and take-down system under the DMCA has allowed a lot of innovative businesses to thrive (YouTube being the most prominent), and that system is under severe threat if the provisions of SOPA get enacted.  So while Paranagua worries about a DMCA-style regime in Brazil, I am desperately hoping that we can keep that regime in place in the U.S.

Brazil has also been at the forefront of the World Intellectual Property Organizations discussion of limitations and exceptions.  The resulting WIPO agenda, looking primarily at exceptions for libraries and for access for persons with disabilities, reflects many of the ideas mention above, including cross-border uses (the subject of first sale and the Costco dispute), a solution to the problem of orphan works, and the relationship between copyright law and private contracts.

This last issue brings me to the most detailed document I have been looking at recently, the “Consultation on Copyright” released by the British government.  The UK has undertaken a thorough review of their copyright law in the past couple of years, explicitly to address the places where copyright interferes with innovation rather than fostering it.  The consultation is seeking hard data about the impact of the changes that were proposed by the commission it set up, called the Hargreaves Commission.  Many of the provisions are similar to the ones I have already mentioned.  But here is the language the really caught my eye:

The Government agrees that, where a copyright exception has been established in UK law in order to serve certain public purposes, restrictions should not be re-imposed by other means, such as contractual terms, in such ways as to undermine the benefits of the exception.
Although contract terms that purport to limit existing exceptions are widespread, it is far from clear whether such terms are enforceable under current contract law. Making it clear that every exception can be used to its fullest extent without being restricted by contract will introduce legal and practical certainty for those who rely on them.

I have argued in the past that contracts should not be allowed to preempt copyright’s limitations and exceptions, at least in cases where the contract at issue is not subject to “arms length” negotiation.  Here the Conservative government seems to be embracing that position (not because I suggested it, of course, but because the Hargreaves commission did) and even carrying it further.  Recognizing that copyright exists to serve a public purpose, and that that purpose should not be undermined by one-sided private agreement, such a “click-through” contracts on websites, would be an important step toward providing the consistency and certainty that all law-making aims for.

The point of this very quick and cursory survey of international proposals for copyright reform is simple.  Throughout the world, even in those countries that, unlike the U.S., embrace a natural-rights account of copyright, reform is focused on supporting innovation and not allowing a system that worked in the past become an obstacle for the future.  Yet in the U.S. all of our copyright proposals, and even statements from our Registrar of Copyrights, seem focused on protecting the old ways and staving off as long as possible the innovation that provides our best economic hope.  If we cannot learn from our competitors and our trading partners, we will certainly be left behind.

A while back Kevin wrote a blog post highlighting the Ghanaian copyright law’s treatment of traditional knowledge and folklore. He pointed out two very basic ambiguities in Ghana’s domestic protections: (1) How exactly is “traditional knowledge” defined, and (2) who owns it?

These two questions are coming up again this week as a group of intellectual property delegates will meet at the World Intellectual Property Organization (WIPO) headquarters in Geneva to discuss a draft text for the international protection of traditional knowledge. As the WIPO meeting agenda indicates, the discussion will focus on a heavily annotated draft text produced at the last meeting of WIPO’s traditional knowledge working group.

First, delegates must address the contentious question of what, exactly, constitutes “traditional knowledge.” Although the working text of the agreement has more bracketed terms than anything else, it generally focuses on protecting three general classes of knowledge:  (1) knowledge created or preserved in a “traditional context,” (2) knowledge customarily recognized as belonging to traditional groups, and (3) knowledge integral to the cultural identity of a particular community. These definitions, while just as vague as those in the Ghanaian copyright law, are the subject of intense comment and seem likely to change.

What is more interesting is the discussion of who should be granted traditional knowledge rights—a debate which largely centers on the type of protection afforded by the agreement. Traditional knowledge protections can come in two basic varieties: “defensive” and “positive.” Defensive traditional knowledge protections ensure that rights to pre-existing content will not become restricted from use by the original community. This protection is typically achieved by instituting a registry or database of existing TK, providing prior art which will defeat future claims of originality or novelty by those trying to assert copyright or patent rights over TK content. Positive protections, however, grant exclusive rights over traditional knowledge that are analogous to the rights granted by copyright or patent law—rights that can be asserted to exclude, license, and profit from particular works. While the draft agreement certainly provides for some increased defensive protections, the bulk of the rights granting language focuses on positive rights.

The implications that this positive-defensive rights debate has on the scope of the global public domain is not lost on negotiators. While defensive protections essentially seek to document what should already be available for public use, positive protections seek to pull some works out of what, in the United States at least, would be considered the public domain. In the comments to the draft text it is clear that some delegates are resisting the push for strong positive rights. Norway and the United States, among others, are asking that the agreement find the “right balance between TK that was subject to protection and knowledge which was or had become part of the public domain.” The United States, echoing this concern, cited the WIPO Development Agenda’s call to “support a robust public domain in WIPO’s Member States” as reason to resist a broad positive rights framework.

On the other end of the spectrum, representatives from developing nations made the point that already  traditional knowledge—some of which would be thought of as in the public domain in the United States—is not freely available for anyone to use, and those given access should have responsibilities and obligations extending indefinitely into the future. The representative of one indigenous tribe made the following comment:

Public domain was a western concept that was designed for commerce and was a bargain that was set for a grant of private property rights for a limited amount of time after which knowledge would go into the public domain. Such a concept did not necessarily exist in indigenous knowledge systems.

True enough, but the underlying “commerce” concerns of the western public domain, in the United States at least, go to the very heart of its philosophy on the appropriate encouragement of the “progress science and the useful arts” and the scope of acceptable limitations on free speech.

As the draft text develops, it seems increasingly likely that this agreement will provide the first ever legal definition of the scope of the international public domain—something ACTA, TRIPS, Berne, and all other international IP agreements have thus far failed to do. While the move toward international protection of traditional knowledge has been a long time coming, this deliberate new focus on the scope of the public domain is, hopefully, a sign that that IP and trade representatives from the United States and Europe have (finally) come to acknowledge the importance of a vibrant public domain.

Bringing this back to the world of scholarly communications, positive protections that award rights over certain traditional knowledge works is somewhat worrisome because it is library collections that house some of the rare copies of expressions of traditional knowledge existing in the United States and other developed nations. Expanding international protections may severely curtail what academics can do with those works, and it will almost certainly limit their ability to collect some of these works in the future. The big picture impact of this traditional knowledge agreement remains to be seen, but the scope of the public domain is at play—for traditional knowledge specifically, but inevitably outlining its scope in general—and that is a concern which extends far beyond libraries and the scholarly world.

So when I saw this blog post about about Fair Usage in Caribbean Intellectual Property I saw an opportunity to consider alternative structures for copyright.  Ms. Inniss observes, in her brief discussion, that the Jamaican Copyright Act is “the most comprehensive piece(s) of copyright legislation which seeks to balance the interests of both the copyright holder and the end users.”  Since I have often commented on the imbalance of US copyright law, here was a chance, I hoped, to see how other decisions might make a real difference.  I was not disappointed.

My brief perusal of the Jamaican Copyright Act has not been either comprehensive or critical; I claim no expertise and nothing I write here should be taken as anything but one of those thought experiments.  With that caveat, here are some of the different choices made in Jamaican law, as opposed to that in the U.S., that seem sensible to me:

In its definitions section, Jamaican law defines an “arrangement,” over which the rights holder has control, in a much more exact and limited way than “derivative work” is defined in the U.S (section 2).  The Jamaican definition suggests how to protect the legitimate interests of a rights holder without choking off too many creative opportunities that could arguably considered derivative.  Most creativity, after all, is derivative of something, but the degree of dependence and similarity varies a great deal, so more nuance in a derivative works right would foster the goal of copyright.

The term of the Jamaican law is life of the author plus fifty years, and anonymous works are protected for 50 years from first publication.  Film and sound recordings are also protected for 50 years, from the time of their creation (sections 10-13).  In short, Jamaica has not followed the U.S. down the ruinous route of every longer terms, but stuck with the minimums required by international law.

Jamaica protects the moral rights of attribution and integrity of the work that are so important especially for scholars, but it subjects these rights to numerous exceptions to avoid preventing socially desirable reuse (sections 14-21).  These rights are co-terminus with the economic rights (some last a shorter time, in fact) so they protect significant authorial interests without tying the works on which culture is built to the personality of the author forever (J.D. Salinger, anyone?).

There are no statutory damages available for infringement in Jamaica, although a form of punitive damages are at the discretion of a judge (section 32).  This means that unscrupulous rights holders cannot threaten users with immense financial liability before even making their case to a court.  The need to prove actual damage is just one of several ways in which the Jamaican law roots copyright protection in unfair business practices, which is, in my opinion, where it rightfully belongs.  In this way, users of creative works who have no financial or competitive interest are not turned into targets for avaricious litigants.

It is important to note that the protection of moral rights in Jamaican law is a major reason that it is possible to make the economic rights more truly economic and focused on protecting real competition.  Because reputational issues are unbundled from economic ones, rights holders with very different concerns are not all directed down the same legal paths.

Finally, the exceptions to the economic rights struck me as clearer and more designed to promote the general progress of “science and the useful arts.”  There is a fair dealing provision applied to criticism, review and reporting that is exactly like the US four-factor fair use analysis (sections 53 & 54).  But there is also a fleshed-out educational exception, so that repeated and socially valuable teaching activities do not depend on the vagaries of a balancing test.  There are specific provisions that govern the creation of course packs and electronic reserves for teaching (sections 57 & 59).  In the latter case, I might complain that the limits are too strict — 5% of a work and only when no license is available — except for the fact that licenses are governed by a Copyright Tribunal (section 96).  Thus educational use is not left to the whims and profit motives of collective rights organizations that operate without oversight (as, for example, the Copyright Clearance Center in the U.S. does).  And when all else fails, the Ministry of Justice in Jamaica is empowered to prescribe new exceptions that are deemed in the public interest (section 86).

All these things seem like sensible decisions to me; I hope others will join me in looking at this and other national copyright laws to see what we can learn about how our own law works, fails, and might be improved.

This short blog post, with links to other stories, tells how the Colgate company has successfully patented, in the U.S., an herbal toothpaste recipe that apparently has been used for centuries by natives of India.  Needless to say, the Indian government is not happy, and the case seems to illustrate the potential abuse of traditional knowledge that the WIPO and other groups would like to remedy.

One question, of course, is whether a patent should be available at all for this product.  This is not just an abuse of traditional knowledge but also, from a different perspective, perhaps, an abuse of the public domain.  In the U.S., as in most countries, patents are granted only for inventions deemed “novel.”  If this mixture of common herbs has been used in India for centuries, where is the novelty?  Colgate simply wants to sell to Indians something they have been making for themselves for a long time.

But this raises the second question I want to consider.  Is it possible that allowing a patent for this product will actually have a social benefit by making the toothpaste more widely available to those who want to use it?  Many Indians probably cannot be bothered to make the paste but would be willing to pay a reasonable price for a pre-made version.  If there would, in fact, be a social benefit, perhaps the patent should be allowed.  This seems to be the position of the Indian government; their object seems to be to letting an American company make the profit more than it is to the idea of profit itself.

So if a patent is to be allowed, the next step would be to find a way to protect the legitimate interests of the inventors of this traditional formula.  That is where the problems really come up, in deciding what those legitimate interests are and whose they are.

For example, are there some groups in India who should be able simply to stop the commercial exploitation of this product?  If we determine that there is social value to the commercialization, then we face a situation where protection of traditional knowledge might cause social harm.  We might opt to make such a decision out of respect for native peoples, but it is a calculus that needs careful consideration.

If we allow the commercialization, equity suggests that profits should be shared with the native peoples who developed the product.  But just who are those peoples?  Who stands in the position of representing Indians who have made this dental powder for “perhaps 1000s of years?”  The Ghanaian solution is to let the government stand in the place of the indigenous creators of traditional knowledge, and in this patent dispute it sounds like the Indian government would like to follow the same path.  To me this question of “cui bono” is the most important and problematic aspect of the debate about protecting traditional knowledge.  If we could find a way — and it will be different in nearly every situation — to actually let the indigenous creators garner some benefit from their traditional knowledge, then I am all for doing so.  But letting contemporary governments profit from knowledge passed down for centuries amongst people who occupied the same territory that that government now rules — even if, as may be the case, the descendants of those peoples do not, in the current situation, feel well represented by that government — is a very imperfect solution indeed.

First, Cameron was very clear is stating that his attention was turned to this subject when he was told by “the founders of Google” that “they could not have started their company in Britain.”  One thing this remark does is remind us of how important short, compelling messages are in capturing the notice of lawmakers.  I often wish we could get legislators to pay enough attention to really understand what copyright is for and how it could be improved, but that is a foolish hope.  In reality, short messages that cry out for specific action – framing devices that state a clear reason why a politician should care – are vital.

Another thing we learn from this remark is how much Google sees itself as dependent on the U.S. fair use provision.  It is precisely a U.S.-style fair use clause that Cameron wants to consider for the U.K.  The Guardian newspaper immediately took Cameron to task for that suggestion, arguing that the government was too much “in the thrall” of “IT giants.” The Guardian went on to tell Cameron that there was little difference between fair use in the US and fair dealing in Britain, and that fair use “does not allow what Google does either.”

This latter statement is badly misguided.  It is very clear that the heart of Google’s business – the provision of Internet searching and indexing – is fair use and several courts have ruled that way.  Perhaps Mr. Arthur of the Guardian is thinking about the Google Books project, the fair use issue in regard to which has never been resolved.  The utility of fair use for supporting Internet innovation is really hard to dispute, although recent interpretations of fair use in some court cases have not always allowed it to live up to its potential.  It is worth taking a minute to see why fair use may be preferable to fair dealing for supporting innovation.

Fair dealing generally refers to a specified set of acts that will not be considered copyright infringement.  In the U.K, private and research purposes, educational coping, news reporting and library lending are all among the acts consider fair dealing (see item 8 in the linked document).  But these lists are exclusive; they do not offer the flexibility to encompass new uses and technologies not known when the law was passed.  Some of the items on the U.K. list of fair dealings are covered by specific exceptions in U.S. law — library lending, for example, is permitted by section 109 – while others are left to the broad but dubious embrace of fair use.  Fair use is an addition to the specific exceptions and is intended to provide exactly the flexibility that fair dealing lacks.

The irony here is that while I agree that Britain needs a fair use provision that would give them the flexibility to experiment and innovate in the knowledge economy, I also envy fair dealing provisions to some extent.  If the U.S. had the fair dealing exemption for educational copying, for example, we would be spared the battles over course packs and e-reserves, and education would be somewhat less expensive for our young people.  So I think it is a mistake to present fair use or fair dealing as an either/or choice; a balance between the flexibility offered by fair use and the certainty offered by specific exceptions for common and socially valuable activities is the goal our copyright reform should pursue on both sides of the Atlantic.

The final point I want to make about the BBC report is regarding the comment from the chief executive of the British Publisher’s Association, who warned that “The immutable fact remains that the people who generate and invest in creativity deserve and need to be rewarded.”  This comment is one of those bromides, often heard in the copyright debate, that really means “keep paying me and don’t make me change the way I do business.”  My real dispute is with the phrase “immutable fact.”  As the knowledge economy changes rapidly, few “facts” will really be “immutable.”  Indeed, they may not be facts at all; we desperately need better data to assess whether and how well copyright laws actually do provide incentives for authorship and creativity.  Certainly we know that there are broad swaths of creators (in academia, for instance) who create without regard for the economic incentives created by copyright.

And there are probably other “facts” we need to consider.  As a panel at a recent meeting of the World Intellectual Property Organization testified, the “Byzantine maze” of copyright regulations is “stalling monetization of new business models.”  This is the fact to which Prime Minister Cameron is responding, as well as to the charge to treat the need to reform copyright so as to support innovation with the same urgency that we fight piracy of copyrighted works.

Berlin 8 at the Chinese National Library of Science

The week that my colleague Paolo Mangiafico and I spent in Beijing for the Berlin 8 Conference on Open Access flew by, so my first impressions are actually being written after our return, based on notes I made during the conference.  This post is an attempt at a summary of the event, while later posts will address specific points that arose.

Towards the end of the Conference there was a brief debate between some panelists about whether progress on open access is too slow or “adequate.”  Perhaps it is merely indicative of my lack of awareness, but I spent much of the conference being amazed at how deeply the values of the open access movement have penetrated around the world.  As I listened to the debate, I was aware that progress on OA might indeed be called slow in the U.S., but that much of the rest of the world is moving forward quite quickly.

A telling sign of the growing influence of the open access movement was the overflowing venues for the meetings held at the Chinese National Library of Science.  In addition to the large number of Chinese researchers who attended the events, there were presentations by OA advocates from all over the world; I personally had in-depth conversations with librarians and researchers from Germany, Italy, Austria, Greece, Japan and Lebanon, as well as with a law professor working on open access issues in the Netherlands.

China was more than just a venue for this year’s Berlin Conference or even a symbol of the global reach of open access as a principle of scholarly communications, especially in the sciences.  The Conference was itself a significant step toward increasing the openness of scientific research in China, which is the fifth leading nation in its share of the world’s scientific publication.  As this blog post from InTech points out, OA is an important step towards increasing the impact of that high level of research.  In his closing remarks to the Conference, Dr. Zhang Xiaoling of the National Science Library reported on the significant attention that the Berlin 8 event was receiving in the Chinese press and also told us that a summary of the proceedings was being sent to officials in charge of the major research organizations and offices in the PRC.  Holding the Berlin Conference in China this year created an opportunity to make a much faster transition toward open access to scientific publications on the level of national policy then has occurred elsewhere.

The panel on which I participated, on legal issues and business models for open access, was indicative of the desire for detailed advice about how to do OA right that was a constant theme from our hosts.  We frequently heard that the thicket of licensing issues which can arise was a major obstacle for OA, and my own presentation provided, I hope, a framework for considering how to deal with multiple copyright interests.  Much greater detail, and more learned analysis, was provided by Wim van der Stelt of Springer and Lucie Guibault from the University of Amsterdam.

The most important impression that I came away from the Berlin 8 Conference with was about the depth of the conviction within the world-wide research community that open access is a major, and affordable, benefit for scholarship. For example, Wim van der Stelt reported on the SOAP project, a survey of attitudes toward open access among researchers.  The finding that 89% of the almost 40,000 researchers who responded to the survey expressed the opinion that open access would benefit their fields was startling to me.  Even more encouraging was that 62% said they had already published at least one article in an open access (“gold”) journal.  Finally, while 40% expressed the opinion that funding for open access publication was a problem, a larger percentage – 50% – said that OA did not need to cost the author anything.

On this point about costs, Alma Swan of Key Perspectives, Ltd in the UK reported on the economic analysis that she and John Houghton (Victoria University, Australia) have been doing regarding OA.  When the costs of OA are balanced against the savings it creates, including subscription savings, reduced transaction costs, and indirect economies based on saved time and effort for researchers, each scenario that was studied – self-archiving, “overlay” journals, and OA in parallel with subscription journals – showed substantial savings at a national level.  When the analysis is applied to specific universities it was found that all institutions would realize savings from “green” open access, which is self-archiving, while about half would also save money from gold OA.  These studies show the practical and localized value of open access that exists in addition to the large societal value, the dollar value of which is presumably also substantial.