It is the phrase “orphan works problem” itself that sparked terminological debate.  Several speakers were uncomfortable with that expression, and an alternative – “hostage works” – seemed to gain some traction among participants.  But the suggestion that really got to the root of the issue was that we should refer to the proliferation of works still in copyright protection but for which no rights holder can be located as the “Berne problem.”  This is appropriate because the problem was so severely exacerbated by U.S. adherence to the Berne Convention in 1988 and the legislative changes that that decision required.  Four steps contributed significantly to the problematic situation we are currently in:

1. The move to automatic protection, which often makes people into rights holders against their will and without their knowledge,
2. Copyright term extension, which inevitably makes heirs or successors-in-interest into rights holders, again often unawares,
3. The end of the renewal requirement, so that rights holders no longer have a chance to indicate their continued interest in a work; thus no “abandoned” works move any longer into the public domain,
4. The end of the registration requirement, which now makes locating rights holders so much more difficult.

The combined effect of these changes to U.S. copyright law, all accomplished between 1978 and 1989, has been to create a huge class of orphan works.  So it is not surprising that many of the suggestions for how to deal with the problem pushed toward reversing or mitigating some of these changes.  Registries, for example, were a common theme; under these various proposals to create registries to assist in finding copyright holders for different types of works, we would simply be recreating (hopefully more efficiently) the registration database of the Copyright Office, which once could claim mandated comprehensiveness but unfortunately can do so no longer.

The first observation from the conference is that nearly all of the speakers (except the industry representatives and Registrar of Copyright Maria Pallante) seemed to think that legislation to solve orphan works is probably impossible and likely a bad idea.  The political climate in Washington makes attention to copyright issues unpalatable, and the proposal we saw several years ago was unattractive to many of the speakers.  Instead of newly created legislative schemes, potentially with burdensome and impractical requirements, many of the speakers looked for small changes that could be accomplished either in common law – by action of the courts, that is – or by simple legislative amendments to portion of the law as it currently stands.  In our next post we will examine some of these more modest suggestions.

Closely related to this distrust of the legislative process as a path for solving orphan works was a clear distaste, again expressed by multiple speakers, for solutions that would create a regime of extended collective licensing (ECL).  Such ECL programs would, of course, require a complex legislative enactment, and examples where such programs are in place were widely considered failures on a practical level; a professor from Canada, which has such a plan, was especially clear that this is not a workable option.  On the level of policy, an ECL scheme, where potential users of orphan works apply to some government-authorized board for permission and pay a fee, was denounced as economically inefficient.  The purpose of legislative licensing schemes is to facilitate the transactions so that users can find owners and owners benefit from the uses.  With orphan works, of course, there is no owner to be found so no transaction like this is actually facilitated.  Instead, the fee that would be paid to some collective organization would amount simply to a tax on use, with no economic benefit or incentive for creators at all.  One speaker refer to this sort of approach as similar to the medieval practice of selling indulgences, based on a dogmatic conviction that all unauthorized uses are a form of “sin.”  Any program based on such a foundation, rather than on solid economics, incentives for creation and cultural development, would be bad policy from the copyright point of view.

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.