Friday 9 September 2016

Optimal 21st Century Copyright?

This post is from our friend Amanda Harcourt, who updates us from the 11th Annual European Policy for Intellectual Property conference with a very interesting take on Optimal 21st Copyright Policy”

From Saturday 3rd until Monday 5th September a daunting array of academics from the world of global IP gathered in Oxford for the 11th Annual European Policy for Intellectual Property conference.  Presentations from the copyright world were what interested the author and there were some familiar faces:  Dr Nicola Searle from Goldsmiths (and IPKAT) delivered a sobering presentation entitled “Changing Business Models in the Creative Industries: Industry Response to Copyright Challenges in the Digital Era” where, inter alia, she mourned the absence of copyright in business model literature.  And JIPLP, 1709  and the IPKAT’s Dr Eleonora Rosati was considering international jurisdiction in the online infringement of EU trademarks.

Theodore Koutmeridis, from the University of Glasgow, presented a survey of evidence-based studies that examine copyright and digital innovation within the creative economy. The key, but gloomy, take away from his tour of the studies was the relative dearth of studies on the harmony between authors and producers.  Similarly he demonstrated, in tables of subject matter comparisons, the lack of studies on fair remuneration of authors and performers in this sector.  There is much to be done to support with evidence the writings about the losses suffered by creators form digital dissemination of their works.

The plenary session on Sunday morning boasted a panel entirely made up of women, who explored Copyright Policies: The Perspective from Europe, the US and the West Pacific”. And what women!  Here, it will be the content of only one of whom I plan to discuss in any great detail. 

Maria Martin-Prat, Head of the Copyright Unit in the European Commission Communications Networks, Content and Technology (DG CONNECT) made her remit clear at the outset.  She had agreed to speak before the Brexit vote and leaked EU proposals notwithstanding, she would not be commenting upon either.  She did however, note the limits as to manoeuvrability within individual EU member states and suggested she would be recommending “guided development” of the EU copyright landscape to promote EU harmonisation that is compatible with individual member states regimes.

Shira Perlmutter, Chief Policy Officer and Director for International Affairs at USPTO began by noting the rise of consumer influence on the IP debate, referring to the public effect via the SOPA/ACTA/PIPA debate on the US legislative initiatives.  Noting how technology overtakes policy, Perlmutter raised four areas as her focus: the adjustment of existing exceptions to accommodate technological advances; finding ways of dealing with works out of the copyright market system, and out of commerce; improvement of the licensing structures and enforcement  the latter two not requiring a legislative approach.  She drew attention to the 2016 Department of Commerce White Paper that followed on from the IPTF Green Paper and noted Copyright Office studies on safe harbour and notice and take down.  She made some “guesses” at what might be around the corner for the 2016/17 period as including music licensing, orphan works, small claims court for IP infringement, modernisation of the Copyright Office and a review of statutory damages.  Her allusion to the need to support standardisation of the labelling of copyright works spoke to a subject close to this author’s heart.

Kim Weatherhall (from Twitter)
But it was the third presentation from Kimberlee Weatherall, Associate Professor at the University of Sydney Law School, that led to this post.  In a presentation she entitled “Optimal 21st Copyright Policy” Weatherall suggested we all might benefit from a fresh approach. She proposed starting from the Aristotelian position of blind ignorance and then she hit the audience with 5 basic principles to guide our collective deliberations.  And here they are:

1.       Copyright should act in the public interest and this aspect of the new regime be subject to a collective and disinterested debate.  In pursuit of this she suggested we discuss this aspect from the perspective of being everyone in the value chain and considering how they might all be served by the new copyright regime.

2.        Copyright should consider the role/function and vital importance of the human author – recognise their interests and acknowledge their imbalance in terms of success of individual works; the imbalance negotiating strength.  She noted the poor organisation among creators (something that is improving given the growing strength of the CISAC Creator Councils and the launch of music organisations such the International Artists Organisation (IAO).

3.       Consideration should be given to a scheme of differentiated protection – laundry lists might not be entitled to the same level of protection as a novel.  Or, as Ms Weatherall put it “selfie protection for 70 years post-mortem auctoris?”. Examples might be core commercial exploited works, valueless marginalia, commercial works no longer being exploited and non-commercial works that do, however, have some value.  Maybe we could consider default exceptions to apply to older works out of commerce.  Or infringement remedies being adjusted where there is no competition from the infringement.

4.       Allow innovation from outside meant, she told us “can copyright owners, or even copyright scholars, determine the future of technology?  Indeed!

5.       Ask that copyright owners accept that in exchange for more or greater protection they should offer some concessions or flexibility. Here Weatherall stressed the balance between benefit and burden; the former should not be the exclusive preserve of right owners and the latter for everyone else.  A fair distribution of the burden and benefits of copyright protection would prevent the locking up of copyright works without commercialisation.

Now, ain’t she sensible?  And thought provoking?  Those of you that like what Ms Weatherall threw out to her fellow academics might want to read her forthcoming title  What if We Did Reimagine Copyright? Co-authored by Weatherall and Giblin and soon to be published by ANU Press

The full programme of EPIP 2016 can be found at

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