Enforcing scarcity

For those in academia who take comfort in the comparative dearth of copyright infringement lawsuits against professors, this news out of Argentina will come as a rude awakening.  Just as we have gotten used to the idea of academic presses suing academic institutions, as in the Georgia State University case, now we have a professor being charged with infringement in a criminal case (which is not really unusual in South American copyright suits).

So what did Professor Horacio Potel do?  He made Spanish language translations of some 20th century classic works in philosophy (Heidegger, Derrida and Nietzsche) available to his students.  He asserts that such versions simply are not available for purchase to his students.

Unfortunately for Professor Potel, lack of availability is not really a defense against copyright infringement.  In a country with a fair use provision (US, Japan, Israel), such unavailability might help with the forth fair use factor, the impact (or lack thereof) on markets for the original.  Rights holders, however, often point out that this factor includes potential markets, and asset that it should be their option whether and when to exploit a particular market.  Thus the answer to Professor Potel’s dilemma from those who hold the rights in these works is basically that his students are out of luck.  For those following the debate about whether copyright laws do more harm than good at The Economist, this instance where copyright is being used to enforce the unavailability of educational resource ought to weigh heavily on the harm side of the balance. (By the way, the voting on the motion showed 71% agreeing that the law did do more harm than good, while 29% felt it was more beneficial).

It is worth noting, while looking at an international infringement case, that the principle international treaty on copyright law, the Berne Convention for the Protection of Literary and Artistic Works, does not contain the same broad exclusive right for “derivative works” that is found in US law.  This is probably a good thing, since it is sometimes very difficult to define exactly what is a protected derivative work.  Leaving that definition up to individual countries seems like a good idea, but it really won’t help Professor Potel.  The Berne Convention does mandate that its members protect two specific derivatives — translations, in article 8 (sorry, Professor) and cinematic adaptations in article 14.  I have little doubt that Argentinian law includes those exclusive rights, so Prof. Potel must, I fear, base his defense on social utility and lack of market harm, two claims that don’t seem to carry much weight these days.