Law Commons^™

Real Copyright Reform, Jessica Litman

Jessica Litman

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright …

Decentralizing Culture: The Effect Of Digital Networks On Copyright And Music Distribution, Benjamin Gibert

Benjamin Gibert

The advance of technology profoundly impacts how people interact with culture as the proliferation of digital networks transforms the effects of copyright in modern societies. This paper argues that the oligopolistic conditions of content markets and the legal discourse of intellectual property law have historically enabled copyright holders to promote a limited conception of art and obscure the complexities of copyright theory. While conceptual ambiguity is inevitable in the construction of aesthetic legal categories, current practices impose too many restrictions. The practical choices made concerning copyright in cyberspace will determine the evolution of culture in increasingly networked societies. The music …

Barricading The Digital Frontier: Copyright, Technology And The War On Music Piracy, Benjamin Gibert

Benjamin Gibert

The Internet is changing the way vast numbers of people experience culture today. Providing tools to interact with, manipulate and freely redistribute content, technology is dissolving conventional divisions between creators and consumers of cultural artefacts. As new technological and legislative mechanisms are deployed to stop digital piracy, there is a need to reflect on the meaning of copyright, piracy and culture in the context of digital technologies. This paper discusses the relationship between copyright and cultural participation. It refers to the music industry in order to depict the changing patterns of consumption behavior precipitated by the rise of digital networks …

Civil Procedures For A World Of Shared And User-Generated Content, Ira Nathenson

Ira Steven Nathenson

Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them. Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature. This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program). Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (UGC). To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation …

Parallel Importation, Patent Right Exhaustion, And Strategies For Navigating The Evolving Landscape, Bryan J. Su

Bryan J Su

Parallel importation provides a means for purchasers and consumers of commercial goods protected by intellectual property law to acquire products for prices lower than the price set by intellectual property right holders. This form of “legal piracy” of grey-market goods is conducted by legally purchasing products in jurisdictions with lower prices, which allows distributors to import products into jurisdictions with higher prices, leading to a competitive advantage. The doctrine of patent exhaustion, especially when applied internationally, allows this practice by giving authorized purchasers of products unfettered ownership and control over the specific articles they acquire.

Analysis of how the United …

Fixing Ram Copies, Aaron K. Perzanowski

Aaron K. Perzanowski

Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the …

Reconceptualising Copyright Law For The Creative Economy Through The Lens Of Evolutionary Economics, Sampsung Xiaoxiang Shi, Brian Fitzgerald

xiaoxiang shi

Modern innovation theory posits the notion of “information flow” as a key ingredient of innovation. In turn copyright law is a key determinant of “information flow”. While copyright law is meant to incentivise creativity in order to promote the dissemination or flow of information - in recent years - copyright law has acted to inhibit information flow. In this chapter we argue that copyright law needs to be recast in a way that promotes information flow.

The Invention Of Common Law Play Right, Jessica Litman

Jessica Litman

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in …

An Australian Copyright Revolution And Its Relevance For Uk Jurisprudence: Icetv In The Light Of Infopaq V Danske, Justine Pila

Justine Pila

The purpose of this paper is to consider the High Court of Australia’s decision in IceTV v Nine Network (2009) and its relevance for UK copyright jurisprudence, taking account of the ECJ's decision in Infopaq v Danske (2009). The starting point for that consideration is the principle expressed by the Court of Appeal in Higgs v R (2008), that UK courts may rely on the reasoning of Australian and other foreign decisions when the logic of those decisions makes them applicable. On its face, IceTV seems an important decision, and a likely source of future reasoning for UK courts. Among …

Who Owns The Intellectual Property Rights In Academic Work?, Justine Pila

Justine Pila

In this Opinion piece the ownership of intellectual property rights in university teaching and research is considered against the backdrop of British university intellectual property policies and recent cases. Starting from the position of Lord Evershed that it is "just and commonsense" that academics own the copyright in their lectures, and by extension the copyright in their research, I consider the policy arguments for university claims of ownership in respect of such copyright and academic employees' inventions.

Copyright And Its Categories Of Original Works, Justine Pila

Justine Pila

In this paper the categories of original (literary, dramatic, musical and artistic (LDMA)) works in which copyright subsists are considered, and an argument made that the Legislature's division of protected works into categories is appropriate given the psychology of art appreciation, and the fact that in order to perceive a work qua work one must perceive it in relation to a category of work. Nonetheless, an argument is also made that the statutory definitions of LDMA works suffer from the defects of formalist theory. Those defects are outlined, and an alternative theory of works proposed, drawing on the work of …