Pluralism and Complexity in Copyright Law

Some Quotations to Begin With:Some Quotations to Begin With:

“A Real Copyright Reform: “Radical Simplification”:

“One important ingredient in such a reform, in my view, is simplicity…..The copyright law is long, complex, counterintuitive and packed with traps and pitfalls…..There are statutory sections so complex that even copyright experts claim not to understand them. Unless our goal is to make it impossible for creators, distributors, and readers to navigate the copyright system without representation, there's no excuse for that.” Jessica Litman, “Real Copyright Reform, 96 Iowa L. Rev. 1 (2010).

“Let’s BalanceLet’s Balance”

• The Contracting Parties: “Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possibleuniform as possible,…..Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation….RecognizingRecognizing the need to the need to maintain a balance between the rights of authors and the larger maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to public interest, particularly education, research and access to information……..”information……..”

• ““Contracting Parties may, in their national legislation, provide for Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author”.unreasonably prejudice the legitimate interests of the author”.

Why Complicate 1.0 ? “Normative” Pluralism

• Copyright Law – one legal framework that regulates and implicates creators, communities and corporate entities with different sources of incentives and considerations that guide their conducts both as producers/creators and as users of copyrighted materials.

• People may differ in their incentives to engage in creative activities, as well as in their capacities, resources and attitudes toward secondary uses of copyrighted materials.

• Authors’ and creators’ motives may vary significantly from those of producers and corporate entities that finance and bear the risks of creative industries.

• Unique groups – e.g. e.g. the open source communitythe open source community, , creative commonscreative commons, , amateursamateurs, , indigenous communitiesindigenous communities andand corporate mediacorporate media - may have different visions, understandings and expectations from copyright law and legal regulation of creative intangibles.

• Seemingly, such conflicting perceptions should result in different attitudes toward fundamental elements in copyright law such as copyright's subject matter (e.g. originality), first ownership rules, exemptions and limitations to copyright and others.

• Copyright law’s challenge is in designing and structuring legal regimes, schemes and doctrines that reconcile and correspond with the above-mentioned multi-layered nature of creative engagement and cultural production.

• Copyright’s subject matter (e.g. the originality requirement), first ownership and transfer rules, exemptions and limitations to copyright, third-party liability and moral rights are just several examples for stages and levels in which copyright law should undergo processes of reconciling and mediating conflicting visions of the creative process into [one][?][one][?] workable legal doctrine[s].doctrine[s].

• If copyright regulates a complex of diverse creators, communities, cultural institutions and corporate entities that may have different visions, understandings and expectations regarding their creative and cultural engagements then copyright law should account to the pluralistic and complex nature of its subjects.

• More particularly, copyright should function as a mediator and facilitatormediator and facilitator between different participants/concepts within the creative spheres.

• If Copyright is about forcibility, expectations and reliance, then the distinct particulars of industries, participants and individuals matter. They matter a lot.

• The concept of harmonizationharmonization reconsidered.

• “Soft” Legal Pluralism ?

Why Complicate 2.0 ? Practical Complexity • Subjects and objects regulated by copyright law compose complex realms

with webs of factors and elements that may differ from one realm to another. • Different Industries;• Different Participants;• Different Cultures;

• Together, they compose a complex web of cultural production and cultural distribution that interacts.

• Different driving forces – different expectations – and different social conditions.

• Copyright law functions as a currencycurrency for creative and cultural exchange/collaboration.

• Copyright law functions as an intermediary and mediator between distinct elements and groups. e.g - A2K. e.g – protection of A.V performers proposed treaty.

Back to Taking Stock – Recent Trends in Copyright Law/ResearchBack to Taking Stock – Recent Trends in Copyright Law/Research

• Enrichment and sophistication of copyright law’s theoretical and normative justifications. Traditional contours of copyright law are challenged by interdisciplinary and empirical research.

• International law making is undergoing major transformations in terms of its openness to new stakeholders, values and processes.

• Technological developments introduce new social, economic and cultural realms in which cultural production and cultural distribution take place.

• Yet - Where does all this take us?

• A contradiction between the advancement and sophistication of copyright research, on the one hand, and on the other hand, the tendency to choose, highlight and generally support a certain particular perception and narrative of copyright law. Everyone is “taking sides”.Everyone is “taking sides”.

• Recent academic discussions on a copyright reform call for a radical simplification of copyright law while focusing on general horizontal recommendations: creator empowerment; reader empowerment; disintermediation.

Against ReductionismAgainst Reductionism

ExamplesExamples

Libraries &Public institutions

Commercial Intermediaries

Dual Platforms Elements

Diverse & ConflictingEconomic Motives

Orphan Works

Different Categories of Works

Publishers

Authors

Mass DigitizationMass Digitization ProjectsProjects– –

““Google B.P”Google B.P”

Disintermediation in CopyrightDisintermediation in Copyright

“Cut the Middleman” – The Assumptions:

• Extensive copyright protection that supports producers and distributors may: (a) undermine cultural diversity and favor only certain types of media products; (b) disrupt active participation of amateurs, civic-engaged activity and end-users who face difficulties and barriers in accessing and utilizing copyrighted cultural materials; (c) destabilize authors’ and creators’ ability to get a fair share of returns on their investment by enabling corporate media to leverage their copyright control as means to control major distribution platforms as well.

• Findings reFindings re: (a) the fact that authors’ and creators’ incentives diversify and far range from copyright’s direct economic incentive; (b) the manners in which digitization and networked communication technologies significantly reduce the costs of producing, storing and distributing content and cultural products.

““Bingo” - DisintermediationBingo” - Disintermediation

• (a) Will decrease corporate media’s economic incentive to engage in disruptive practices.

• (b) Will make it easier for creators to reach audiences, as well as more easy for readers, listeners, and viewers to enjoy a diversified range of creative works.

So what we need is:

• A significant reduction in distributors’ and producers’ copyright protection.

• Reforms in the termination-of-transfers right in manners that would enable creators and authors further enhanced powers in exploiting, licensing and distributing their works (as well as getting a fairer share of long term revenues that are generated by their copyrighted works) (U.S).

• Eliminating the category of commissioned works made for hire under the second prong of section 101 of the Copyright Act (U.S).

• Locating more powers in the hands of originating creators in manners that will promote further distribution and utilization of their works, as well as more revenues to the originating creators. Copyright policy should support additional channels of distribution, which are not dominated by corporate media and their bias toward certain types of content.

• Proposals to legalize peer to peer file-sharing platforms because of their potential as alternative channels of distribution.

• Developing and supporting robust safe-harbors for internet intermediaries, including content sharing platforms (e.g. You-Tube), social networks, search engines and other sophisticated retrieval mechanisms for content provision such as indexes and linking web-sites.

• The logic and driving force underneath these proposals is that digital and networked communication technologies enable robust, diversified, decentralized and diffused forms of cultural production and cultural distribution, if only the hedges and obstacles of copyright as means of control over cultural production and distribution are lessened.

Bingo ?Bingo ?

• Intermediaries do not disappear in the absence of copyright protection.

• They just become a handful of meta-intermediaries (e.g. YouTube, Facebook).

• The true facts about monetization and creators’ bargaining position/financial rewards in a post-disintermediation copyright regime.

• The increasing scarcity of audience attention and its impact on the diversity of content production.

• From the “agency problem” of traditional intermediaries (e.g. record companies) to the disappearance of agents.

• What about concentration and centralization.

•

Back to Copyright LawBack to Copyright Law

• (a) Intermediaries’ & third-party liability;

• (b) Notice and takedown regimes;

• (c) Distributors’ and intermediaries’ rights.

Popular Culture/Appropriation Art/Fan FictionPopular Culture/Appropriation Art/Fan Fiction

Corporate Media Culture

Corporate Branding

Speech Interests

Traditional Culture Moral Rights

Appropriation Art

Fan Fiction

Popular Culture

A Media Product

Reality BitsReality Bits

Pluralism and Complexity are acknowledged to a certain degree – just Pluralism and Complexity are acknowledged to a certain degree – just a few examples:a few examples:

• Unique legal regimes for audio-visual works.

• Fair Use “common law” of technological devices.

• The laws of search engines.

• “De-facto” relational notions of originality.

Potential ImplicationsPotential Implications:

• The call for simplification of copyright law is overstated and may have a price of its own.

• Normative Pluralism + Practical Complexity must be taken into account, including in the international arena.

• The regulatory nature of copyright law justifies more focus on the study of particular industries, groups, communities and sectors, as well as their interactions and cross implications – Toward “Regulatory Copyright”Toward “Regulatory Copyright”.

• General balancing schemes between “authors”, “users” and “intermediaries” may not suffice because they do not reflect the complexities of cultural/information production. We need more and new “frames”.

• Developing modes of “mediation” into copyright law.

• “Harmonization” Reconsidered.

Questions and Counter-Arguments:

• Why not suffice with “private ordering” – large-scale contractual arrangements (creative commons, GPL, the [rejected] Google Book Library settlement (my approach: private ordering as inconclusive inspiration and signaling mechanism).

• The costs and impracticability of an approach that attempts to consider and reconcile multiple stakeholders.

• The costs and disadvantages of a casuistic approach.

• The costs and hazards of regulation.

• What about speech and content neutrality ?

• Isn’t it all about legitimizing rent-seeking ?