Examining the world through the values of individual, collective and professional empowerment, the constant questioning of authority and the promotion of innovation over wastefulness.
Orphan works - a Sterling solution? 4 December 2008 "Over the years, few members of the IP fraternity can have won as many friends as Professor Adrian Sterling, a distinguished international copyright lawyer and a dedicated teacher of his craft. Adrian's legendary kindness, the IPKat notes, extends beyond his students and colleagues and reaches as far as orphans and their copyright works ... [at this point Merpel interjects: "silly Kat! It's orphan works, not works of orphans! We're talking about works that are metaphorically orphaned because their 'parentage', in terms of authorship or ownership, cannot be traced"]. "As I was saying", continues the IPKat, "Adrian has been working on a scheme for resolving the orphan work problem, which traps many otherwise exploitable works in a sort of commercial limbo". This scheme has been adopted by the British Copyright Council in its Response on the Green Paper on Copyright in the Knowledge Economy, and the paper will be circulated tomorrow at the 8th IBC Annual Conference on International Copyright Law.
As a special treat, readers of this weblog, whether orphans or sufficiently parented, can get a preview all of their own, which can be read here. If you'd like to have a look at it and tell Adrian and/or the IPKat what you think of it, please feel free to do so. Comments to the IPKat can be posted below. Emails to Adrian can be directed here." [IPKitten]
Web Radio Royalty Battle Takes New Turn December 31, 2008 Wednesday “The battle over radio royalty rates will likely continue into 2009, with the latest issue tackling how and when cable, satellite, and Internet stations should report their playlists to copyright holders in order to determine payment.The Copyright Royalty Board, a government body that sets royalty rates, released a notice on Tuesday that suggests altering the reporting requirements for stations." [ContentAgenda]
"This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US proposals to enhance their international compatibility and to reconcile the interests of users more fully with those of the works' creators." [Isolum]
Considering the Risk Dimension in the Administration of Copyright "In the law and economics literature of copyright, the economic function of collecting societies has been principally treated as a way to diminish transaction costs. However, another possible function, the transfer of risk as a function of collective administration has been, relatively, ignored. Through risk analysis, an author will be able to determine which method of administration of protected rights is most beneficial to him. Due to information asymmetries, authors and users bear a number of risks. These risks can be transferred to a collecting society which is in a better position to bear them more efficiently and to better administer the protected rights." [SSRN]
Is the Copyright Monopoly a Best-Selling Fiction?
"This paper attempts to determine the impact of copyright on the prices of books, which is a task that has not, to my knowledge, been undertaken before. Recent prices of best-sellers written between 1895 and 1940, some with copyright and some without, are compared. One set of empirical findings based on typical regressions indicate that the prices of copyrighted works do not appear higher than the prices of non-copyrighted works. Another set of findings, based upon giving greater weights to books that have greater unit sales, implies that copyright raises price by up to 14.5%. This bifurcated result allows the contemplation of two scenarios. In the first, copyright does not raise price at all. This is explained by appealing to the nascent literature on uniform pricing. If books are best described by this model I show that increases in copyright unambiguously increase welfare. The increased-price scenario notes that authors appear to receive all the industry rents and examines the possible deadweight losses due to the higher price of copyrighted books. I calculate a range of deadweight losses based upon seemingly reasonable market assumptions and find the size of the deadweight loss is small compared to industry revenue. Importantly, the size of this deadweight loss appears to be much less than the deadweight losses from a leading alternative system that has been proposed for distributing creative works." [SSRN]
Restricting Access to Books on the Internet: Some Unanticipated Effects of US Copyright Legislation "One manifestation of the trend towards the strengthening of copyright protection that has been noticeable during the past two decades is the secular extension of the potential duration during which access to copyrightable materials remains legally restricted. Those restrictions carry clear implications for the current and prospective costs to readers seeking "on-line" availability of the affected content in digital form, via the Internet. This paper undertakes to quantify one aspect of these developments by providing readily understandable measures of the restrictive consequences of the successive modifications that were made in U.S. copyright laws during the second half of the twentieth century. Specifically, we present estimates of the past, present and future number of copyrighted books belonging to different publication-date "cohorts" whose entry into the public domain (and consequent accessibility in scanned on-line form) will thereby have been postponed. In some instances these deferrals of access due to legislative extensions of the duration of copyright protection are found to reach surprisingly far into the future, and to arise from the effects of interactions among the successive changes in the law that generally have gone unnoticed." [SSRN]
The Social Contract and Authorship: Allocating Entitlements in the Copyright System "Political and moral philosophy teach that there are norms governing how individuals and states ought to behave to ensure a well functioning society. This paper argues that authorship is essentially an activity that can only occur when other individuals in society are constrained by particular moral and ethical norms, and when the copyright system is built on a theoretical framework where individuals in society agree to waive certain rights in order that authors may have the incentive to produce literary and artistic works. The law as it presently stands allocates entitlements without ethical or moral restraints on the exercise of private individual rights. Considerations of fairness and justice ought to be serious considerations in deciding how entitlements in literary and artistic works are allocated, and this paper utilizes theories of moral and political philosophy as a normative model for how individual rights ought to be exercised. This paper concludes that the allocation of entitlements in literary and artistic works ought to be in accordance with the mutual agreement individuals in society enter to provide rewards to authors, and prescribes certain ethical and moral norms that ought to be incorporated into the copyright system to fulfill this agreement." [SSRN]
IFPI: "Three strikes" efforts hit worldwide home run 19/08/08 "The music business doesn't actually enjoy suing its fans, nor does it like being the worldwide target of scorn, wrath, calumny, disdain, rancor, and ridicule (did I miss any?). No, according to the International Federation of the Phonographic Industry, or IFPI -- the global music recording trade group -- the industry would much rather solve the P2P file-sharing problem through ISP partnerships rather than lawsuits.
We reported yesterday on Jim Griffin's work with Warner to make a voluntary blanket music license a possibility by partnering with ISPs and college networks. That's the "carrot" approach, but the music business wants some effective "sticks," too, and IFPI now believes it has found a good one: graduated response, also known as "three strikes" rules, which are being trotted out of regulatory dugouts around the world." [ArsTechnica] Small Business Administration Orphan Works Roundtable August 24, 2008 "The Small Business Administration Office of Advocacy held a roundtable on the economic impact on small business (every artist) of the orphan works legislation at the Salmagundi Club in Manhattan on August 8. A webcast is available. (The Salmagundi Club is a 137-year old institution to promote the visual arts, named after Washington Irving's Salmagundi Papers.)
The roundtable participants included a broad cross-section of the creative community all of whom objected to, and many outright opposed, the orphan works legislation." [MusicTechPolicy]
Bertelsmania comes to Luxembourg11 July 2008 "They don't come much longer and more complex than Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala, yesterday's decision of the Court of Justice of the European Communities in a case that, while not actually being an IP case, says a lot about how the ECJ views the concentration of IP rights -- even weak ones like copyrights.
The ECJ was asked to rule on an appeal against the decision of the Court of First Instance (CFI). That court, in a controversial decision, annulled the European Commission's approval of a 2004 merger between Sony Music and BMG. According to the CFI, the examination into whether there was already collective market dominance in the music industry, and whether that dominance might grow following the Sony BMG deal, was too cursory." [IPKitten]
Did MEPs vote to cut off copyright infringers' internet? "The Registry reports that Members of the European Parlioament (MEPs) may have accidentally included measures forcing ISPs to cut off internet access for those who infringe copyright through dowloading. The test calls for "cooperation" between ISPs and those "interested in the protection and promotion of lawful content". The trouble is, no one quite knows what "cooperation" means, including MalcolmHarbor, one of the MEPs responsible for the text." [IPKitten]
International Confederation Condemns U.S. Orphan Works Act "CIAGP is the visual arts division of CISAC. CIAGP collectively acts for over 100,000 artists, photographers and illustrators through artists rights societies in 31 countries. CISAC works towards increased recognition and protection of creators' rights. Founded in 1926, CISAC is a non-profit organization headquartered in Paris."
Well, well, well. Hundreds of thousands of artists around the world have come out against orphan works. And you know what? They managed to do it without taking money from Michael Petricone, Gary Shapiro, or the Digital Freedom Campaign. Or Google for that matter. In fact, these artists are probably the only ones who haven't taken the king's shilling." [MusicTechPolicy]
Play it again ... 22 June 2008 "Via the IPKat's friend Miri Frankel comes this feature on Wired regarding the Recording Industry Association of America (RIAA) and its litigation against file sharers (so far more than 20,000 copyright infringement actions have apparently been launched). This story involves a New York family accused of copyright infringement.
The RIAA initially identified the mother, Joan Cassin, as being the operative copyright infringer, but later dropped its action at the point at which which the judge was pondering a motion to dismiss the case based on the "making available" theory (see here, here and here). Two weeks later, the RIAA re-filed more or less identical allegations in a fresh action that was sent to another judge because the RIAA did not "relate" the cases. Discovery was immediately sought in order to find out whose KazaA file share folder was being used -- a share folder on the same Verizon internet account as was used at the Cassin household. Curiously the second lawsuit was filed as a John Doe case, without naming a defendant." [IPKitten]
A Performance Right for Recording Artists: Sound Policy at Home and Abroad "The recent introduction of H.R. 4789 and S. 2500, both titled the “Performance June 2008 Rights Act,”1 means that broadcasters, recording artists, and record labels may resume a recurring debate about whether copyrights in sound recordings should include a general public-performance right that would make their owners eligible to be paid when their songs are performed publicly on broadcast radio stations.History suggests that this debate may become heated and potentially protracted.
Nevertheless, from the perspective of copyright policy, this public-performance - right debate is simple.Denying a public-performance right in sound recordings is bad copyright policy and bad technology policy, and it undermines both the international and economic interests of the United States.Consequently, Congress should enact the Performance Rights Act: There is little to be lost and much to be gained." [PFF]
Did the Making-Available Debate End Before It Began 13 June 2008 Today, many courts are adjudicating copyright-infringement claims against consumers who used file-sharing programs like KaZaA to "share" copyrighted music and movies with thousands of strangers. These courts have been struggling with the question of whether the unauthorized "sharing" of a work infringes the rights of its copyright owner--in others words, whether U.S. law provides copyright owners with a so-called "making-available" right.
Recently, the Court hearing Capitol Records, Inc. v. Thomas posed a question about when appellate decisions are binding precedents for lower courts. The answer to this question appears to show that--at least in the federal district and circuit courts--the making-available debate ended seven years ago.
Stop Press Important Litigation Alert June 12, 2008
"The Electronic Frontier Foundation is crowing about a ruling they got that people who sell promo CDs--that the recipient is given with full knowledge that the recipient is not supposed to sell the disc--are permitted to sell their promos on eBay and presumably in bricks and mortar stores as well.Ah yes, a great victory for the EFFluviati. What does this mean exactly? It means that the EFFluviati once again have managed to screw artists and songwriters." [MusicTechPolicy] Orphan Works: No Copyright Infringement Litigation Says the Google Budget Office June 24, 2008 "Orphan works legislation is no problem, says the Congressional Budget Office because "[a]ccording to Copyright officials, there have been very few lawsuits against copyright infringers in recent years and the value of the awards in those suits have not been large."" [MusicTechPolicy]
"Prof. Lessig has an OP-ED in the NYT today about the orphan works bill rolling now in Congress. Among the important points mentioned there, here are my three favorites: (1) to the extent that foreign authors are substantially deprived of copyright protection as a result of the new rule, the amendment will probably violate U.S. international obligations, and it would take the E.U. exactly two seconds to file a WTO complaint. (2) It makes no sense to put so much weight on the issue of “diligent effort” if rightholders are not required to register works, as in the case of patents, for instance. (3) It would be somewhat unfair to apply the rule retroactively to works by authors who relied on full, automatic copyright protection upon creation/fixation." [CyberLaw]
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