Copyright Law & Economics in the Copyright Directive: Is the Droit d'Auteur Passe?

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In continental Europe, copyright law is traditionally viewed as a so-called 'natural' right - briefly put: it is simply right for the author to enjoy the fruits of his labor. However, socio-economic considerations are becoming more in important in European copyright doctrine. One reason for this tendency is that more and more copyright matters are regulated at the EU level and that the European regulator explicitly adheres to the economic rationale for copyright law. In this contribution, it is investigated what the apparent economic policy goals are of the EU Copyright Directive of 2001 - which is by far the most ambitious piece of EU legislation in the area of copyright to date. The purpose of this article is not to set-out new, cutting-edge economic theories on copyright law, but merely to analyze what the explicit and implicit aim of the Directive is and to explore what, according to standard, mainstream and widely known economic theory, will be the likely result of the new regulations on copyright law. Will the Copyright Directive succeed in achieving its apparent goals? What does economic theory predict about its impact? The emphasis is on the most important and controversial changes that the Copyright Directive brings about. These are the introduction of a right of temporary reproduction, the limiting of the exhaustion of copyright, the abolishing of remuneration rights and, last but certainly not least, the broad protection of technological measures - i.e. DRM systems. The article concludes that the Directive appears to be based on a great belief in the beneficial effects of granting property rights in information products and in the ability of the market mechanism to achieve an optimal result. However, it may well be argued that apparent faith in the 'invisible hand' of the market is unjustified. Particularly, the public good character of information products is not taken into account. Moreover, the provisions of the Directive may hinder competition to a further extent than copyright traditionally did, which could have an undesirable result as well. Additionally, the apparent reliance on market forces to match the demand for uses with the offered technological usage restrictions may be unsubstantiated. There may be valid arguments for limiting the freedom of contract and the freedom to block any information usage technologically.

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... Both of these issues are not new, as both relate to the concerns raised with the deployment of technological protection measures (TPM) and digital rights management (DRM) systems, which have been criticised by many (Ginsburg, 2002;Samuelson, 2003;Erickson, 2003;Felten, 2003;Koelman, 2004) for introducing a new exclusive right over the mere access to digital content, in ways that often go way beyond the restrictions provided by default under copyright law. Yet, as opposed to these technological measures of protection, whose restrictions can nonetheless be circumvented by experienced users, in the case of cloud computing, users do not even have the ability to bypass the limitations imposed by the user interface, since they do not even have access to the files stored on the servers. ...
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p>Cloud computing technologies are commonly used for delivering content or information to users who no longer need to store this data onto their own devices. This is likely to have an important impact on the effectivity of copyright law in the context of online applications, insofar as the underlying infrastructure of the cloud is such that is allows cloud operators to control the manner in which and the extent to which users can exploit such content - regardless of whether it is protected by copyright law or it has already fallen in the public domain. This article analyses the extent to which the provisions of copyright law can potentially be bypassed by cloud computing applications whose interface is designed to regulate the access, use and reuse of online content, and how these online applications can be used to establish private regimes of regulation that often go beyond the scope of the traditional copyright regime.</p
... It is thus hardly surprising that economic objectives tend to predominate over other concerns in EU policy even when, as with the subject of this paper, there are strong cultural consequences. Accordingly, the EC's approach to copyright roughly resembles the traditional Anglo-Saxon perspective rather than the continental European droit d'auteur/authors' rights tradition (Koelman, 2004). While copyright is viewed in Anglo-Saxon terms as an economic property right, authors' rights law emphasises the non-economic role (moral rights) and the inalienability of a creative work from its author. ...
Nonostante le perplessità riportate sull’idoneità delle attuali regole, ancora legate a principi consolidatisi in un contesto pre-tecnologico, i detentori dei diritti ed i fornitori di contenuti non sono pronti a rivedere, nel mondo virtuale, l’ordine che nel mondo reale è stato plasmato a loro immagine per lungo tempo.1 L’industria dei contenuti si è comportata come qualsiasi, operatore economico al quale è concesso un privilegio predisponendosi a mantenere ed estendere il proprio status attraverso tenaci ed incisive azioni di condizionamento nei confronti delle Corti e dei legislatori.2
“Intellectual property“ has become the international household term denoting the rights addressed in Part II of the TRIPS Agreement. The term suggests that such rights grant their proprietor an entitlement to exclude others from using the protected subject matter. However, in reality, intellectual property has never been exclusive in a strict sense. Copyright, in particular, is relatively rich with examples of rules allowing third parties to use protected content under certain conditions, and against payment of a fair remuneration. In economic terms, this means that property is replaced by a liability rule. After explaining the basic tenets of property vs. liability rules and commenting on the factors informing the choice between the two types of rules, the article gives an overview on liability rules which can be found, or are under discussion, in the various fields of intellectual property. It is argued that although liability rules may pose specific concerns with regard to administration and efficiency, their fundamental rejection as regulatory model would have no rational basis. “Intellectual property” is a term of convenience rather than enunciating a truth cast in stone, and the practical relevance of liability rules is likely to increase in view of challenges by novel forms mass uses of protected content, and by growing sophistication of technology.
Economists are frequently involved in quantitative research (ex ante and ex post) on policy changes and it should be possible to apply this competence to copyright reform. However, aspects of the EU Directive, such as technological protection measures and digital rights management, present severe challenges to empirical economic evaluation.
Granulomatous processes can develop in bone which frequently give rise to great clinical and radiological difficulties. All granulomatous lesions have in common the fact that they appear primarily in the marrow cavity. From there they extend into the cortex, bringing about an erosion of its endosteal side which can be recognized in the radiograph. Usually, a local osteolytic lesion is involved, since the cancellous trabeculae in the neighborhood of the granuloma are destroyed. This leads to the appearance of a “bony cyst”. In the radiograph the peripheral reaction in the region around such an osteolytic focus provides a very important diagnostic criterion. In rare cases a circumscribed area of osteolysis in the cortex can also arise from a bone granuloma.
We stand at an unprecedented moment in the history of ex-clusive private rights in information ("EPRIs"). 1 Technology has made it possible, it seems, to eliminate to a large extent one aspect of what makes information a public good—its nonexcludability. A series of laws—most explicitly the Digital Millennium Copyright Act ("DMCA") and the Uniform Computers Information Transac-tions Act ("UCITA")—are building on new technologies for control-ling individual uses of information goods to facilitate a perfect en-closure of the information environment. The purpose of this Essay is to explain why economic justifi-cations interposed in favor of this aspect of the enclosure movement are, by their own terms, undetermined. There is no a priori theo-retical basis to claim that these laws would, on balance, increase the social welfare created by information production. The empirical work that could, in principle, predict the direction in which more perfect enclosure will move us has not yet been done. Empirical re-search that has been done on the effects of expanded EPRIs—in the * Associate Professor of Law, New York University School of Law. Thanks to Jamie Boyle, Mark Geistfeld, Neil Netanel, and Steve Shavell for helpful conversations and comments. The title is meant to recall the wisdom of Benjamin Kaplan's cautionary An Unhurried View of Copyright (1966) at the dawn of the enclosure movement. 1. I introduce here the term "EPRIs" to denote the panoply of rights we have been refer-ring to in the last decade and a half as Intellectual Property Rights or IPRs. The term "property" is so heavily laden with an intellectual baggage created for normal economic goods that it often obscures more than it reveals about the collection of complex rules that our society has adopted to harness some market actors to provide what is essentially a public good—information. "Ex-clusive private rights in information" is functionally accurate and more analytically neutral.
The purpose of this article is twofold. Firstly, to give the reader an outline of the proposed changes to the Technology Transfer Block Exemption (TTBE) and secondly, to focus on some of the more relevant changes and the policy reasons for the change.
I show that copyright law is intimately connected to price discrimination. First, price discrimination is common in markets for copyrighted works. Second, many features of copyright law affect resale or personal arbitrage and so influence the profitability of price discrimination. For example, the first sale doctrine and the fair use doctrine often facilitate arbitrage and discourage discrimination, while the derivative and public performance rights impede arbitrage and promote discrimination. Third, optimal copyright policy requires attention to the social costs and benefits from price discrimination. I use models of price discrimination to unify the analysis of a wide range of copyright policy issues. I argue that public performance rights are desirable because they support fine-grained price discrimination and displace other forms of price discrimination that have greater social cost. I argue against a broad definition of the derivative right that includes movie merchandise. Movie merchandising usually imposes allocative and implementation costs with little offsetting benefit in terms of creative incentive. I show that personal copying and other activities possibly covered by fair use have mixed effects on price discrimination and social welfare. Finally, I argue that the importation right should not cover gray market goods and should not be used to facilitate geographic price discrimination.
The classic prescription for economically efficient pricing - set price at marginal cost - is not relevant for technologies that exhibit the kinds of increasing returns to scale, large fixed costs, or economies of scope found in the telecommunications and information industries. The appropriate guiding principle in these contexts should be that the marginal willingness to pay should be equal to marginal cost. This condition for efficiency can be approximated using differential pricing, and will in fact, be a natural outcome of profit-seeking behavior.
Most innovators stand on the shoulders of giants, and never more so than in the current evolution of high technologies, where almost all technical progress builds on a foundation provided by earlier innovators. Most economics literature on patenting and patent races has looked at innovations in isolation, without focusing on the externalities or spillovers that early innovators confer on later innovators. But the cumulative nature of research poses problems for the optimal design of patent law that are not addressed by that perspective. The challenge is to reward early innovators fully for the technological foundation they provide to later innovators, but to reward later innovators adequately for their improvements and new products as well. This paper investigates the use of patent protection and cooperative agreements among firms to protect incentives for cumulative research.
A Political Economy of the Public Domain: Markets in Information Goods versus The Market Place of Ideas
  • Y Benkler
Benkler, 'A Political Economy of the Public Domain: Markets in Information Goods versus The Market Place of Ideas', in: R. Dreyfuss et al. (eds.), Expanding the Boundaries of Intellectual Property, Oxford: University Press 2001, p. 274 ff.
The US v. EU Anti-Circumvention Legislation: Preserving the Public's Privileges in the Digital Age?', EIPR 2002, p. 537; see also supra nt 16 and accompanying text
  • See T Foged
See T. Foged, 'The US v. EU Anti-Circumvention Legislation: Preserving the Public's Privileges in the Digital Age?', EIPR 2002, p. 537; see also supra nt 16 and accompanying text. 75
Stating that the copyright limitations are inserted: "to balance the incentives given to property owners against the harm experienced by consumers and next-generation competitors
  • M A Lemley
The Approach to Innovation under the Proposed Copyright Directive: Time for Mandatory Exemptions?', Intellectual Property Quarterly
  • See T Heide
One has to be cautious, however, in generalizing on this topic
  • R P Merges
unless such latter restriction is indispensable to prevent the disclosure of the licensed know-how to third parties
  • K J See
The use of antitrust law to correct the conceptual errors of copyright is in fact an inefficient (and costly) way of proceeding, and leads to a schizophrenic system that on the one hand encourages certain behaviors while on the other hand it punishes them
  • See Heide
The Economics of Copying
  • W R See