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Copyright Law & Economics in the EU Copyright Directive: Is the Droit d'Auteur Passé?
Abstract
In this contribution, it is investigated what the apparent economic policy goals are of the EU Copyright Directive of 2001. Additionally, it is explored what, according to mainstream economic theory, will be the likely result of the new regulations on copyright law. The article concludes that the Directive appears to be based on a great belief in the beneficial effects of granting to information producers broad property rights in information products and in the ability of the market mechanism to achieve an optimal result in the information market. However, it may well be argued that the apparent faith in the 'invisible hand' of the market is unjustified where information products are concerned. There may be valid arguments for the legislator to intervene by limiting the freedom of contract and by curtailing the freedom to block any information usage technologically.
How can documentary heritage institutions protect the rights of publishers and creators while archiving their digital works for future generations? Is such an intervention of collecting, archiving and making available digital work justifiable and, if so, why? A legal deposit system is implemented in most national libraries to balance protecting rights holders and guaranteeing public interest. However, the expansion of collection coverage such as e-books and social media content has resulted in legal and ethical conflicts. Legal and economic approaches can convert legal conflicts into analysable trade-off phenomena. Therefore, we explore whether and to what extent economic reasoning applies to the legislative process. This is primarily for electronic legal deposit systems, specifically focusing on copyright and privacy issues. For copyright, legal deposits serve a public domain function and a correction function for market failures. Preserving the function of legal deposits can mitigate legal and ethical risks over time. However, such risks remain, as long as privacy is subjective and contextual. Even if documentary heritage institutions are granted legislative authority to collect digital work mandatorily, they must pursue other methods to minimise such risks. This suggests that collection coverage diversifies between countries and regions.
This article clarifies the concept of remuneration rights and examines remuneration rights in EU copyright law. Specifically, the article examines the criteria for the calculation of remuneration under the different remuneration rights in copyright law and evaluates how they conform to the normative methodology based on Calabresi and Melamed’s distinction between property rules and liability rules. In the EU copyright acquis, in some cases remuneration reflects the market value of the use of the work, whereas in others it reflects the harm inflicted on the rightholder through use of the work. In spite of overlaps between harm and market value when used as the basis for the calculation of remuneration, the two criteria are fundamentally different. In yet other cases, remuneration is not closely tied to either market value or harm but is a means for the redistribution of surplus. The article concludes that a harm-based remuneration right is a young cuckoo bird in the nest of copyright law and that the calculation of remuneration ought always to be based on market value, unless the purpose of the right is to pursue specific policy objectives by redistribution of surplus. The article recommends that courts, de sententia ferenda, exploit the overlap between harm and market value and shift the focus of interpretation towards the latter.
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
The combination of tracking technology and online licensing on the one hand, and extra-copyright limitations based in privacy rights on the other, would in my opinion yield a better copyright regime than many national laws now afford with respect to the problem of private copying. Jane C. Ginsburg. Introduction: The quotation from Jane Ginsburg provides a useful entry point into the subject of this chapter: the relationship between copyright law, privacy laws and the emerging phenomenon of digital rights management (DRM). There can be little doubt that the production and distribution of copyright-protected material in digital form has created challenges for its owners, in particular new horizons for seemingly endless forms of infringement by users. These challenges have, in turn, spawned DRM systems and technologies that are designed to deter infringement and facilitate management of rights in new and different ways and which may well provide copyright owners with more control over their material and over users than was possible in the non-digital environment. The phenomenon of ‘digital lock-up’ and the restrictions that this may place upon users of copyright material has already received much attention from policy makers and commentators, but a matter that has received less consideration is the subject of the present chapter: the threat that the development of such systems may pose to the privacy of users. © Cambridge University Press 2006 and Cambridge University Press, 2009.
'The book is well provided with detailed references/bibliography for those who want to pursue the matter. . . The authors have effected a very thorough analysis of the moral issues and the book is strongly recommended for that reason. . .' © Richard A. Spinello and Maria Bottis 2009. All rights reserved.
Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope, and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. This book explores theoretical, normative, and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures. The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation, and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.
This book provides a comparative and comprehensive analysis of the current state of technical, commercial and economical development in digital media. It describes the impact of new business and distribution models, the current legal and regulatory framework, social practices and consumer expectations associated with the use, distribution, and control of digital media products. In particular, the author analyzes the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe, and their impact on consumer protection policy. The book concludes with an overview of the effects, and the possible solutions, under U.S. and EU law, posed by using contractual arrangements to expand intellectual property rights. © Springer-Verlag Berlin Heidelberg 2006. All rights are reserved.
This book offers an original analysis of private copying and determines its actual scope as an area of end-user freedom. The basis of this examination is Article 5(2)(b) of the Copyright Directive. Despite the fact that copying for private and non-commercial use is permitted by virtue of this article and the national laws that implemented it, there is no mandate that this privilege should not be technologically or contractually restricted. Because the legal nature of private copying is not settled, users may consider that they have a ‘right’ to private copying, whereas rightholders are in position to prohibit the exercise of this ‘right’. With digital technology and the internet, this tension has become prominent: the conceptual contours of permissible private copying, namely the private and non-commercial character of the use, do not translate well, and tend to be less clear in the digital context.
This chapter explores the current level of harmonisation in copyright and related rights law as resulting from the action of the European legislator in order to establish a legal framework fostering production and distribution of contents, and promoting the cultural industries growth. From the survey of the community directives constituting the current aquis communautaire and the analysis of their implementation emerging trends and pitfalls raise doubts as to the consistency of the assumptions underlying the current copyright law policy of the European Union (EU). The first part of the chapter surveys the process of harmonisation leading to the current legal framework and stresses its discrepancies in order to ascertain whether the current level of protection does create value and increase the EU's competitiveness. The second part of the chapter addresses the current European copyright law policy in respect of two relevant issues: first, the impact of such policy on the ways in which cultural goods are produced and distributed in the digital environment, and second, the emerging conflict between the proprietary regime that has been developed and the fundamental rights of freedom of expression.
“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.
Knowledge plays an increasingly important role in shaping the dynamics of an economy. A static Paretian welfare economics is therefore inadequate, and needs to be supplemented by a dynamic (Schumpeterian) welfare theory. A dynamic welfare economics acknowledges the role of knowledge and communication. As knowledge develops cumulatively in a social environment, knowledge may not be readily diffused or exchanged. Different costs of communication need to be considered, each affecting the creation of new knowledge. Recent developments in Intellectual Property Right (IPR) law are evaluated to determine the extent to which they affect communication costs and thus future economic welfare.
Copyright doctrine provides that copyright is available for expressive works. The doctrine Provides also that copyright is not available for functional works. There is a significant category of works composed of functional expression, the availability of copyright for which is problematic. In this Article, Professor Weinreb argues that the current uncertainty about copyright for computer programs and the user interface of programs brings the issue of copyright for functional expression into sharp focus and raises fundamental questions about copyright generally Traced to their source, the doctrines in question rest on nothing more than a conventional understanding that works of certain types are copyrightable. The justifications of copyright as an author's "natural right" and as a means of furthering the production and dissemination of authorial works are similarly dependent on the convention, which they purport to explain.
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.
To what extent are online intermediaries responsible for third party material put on the Internet by users of their facilities? The Directive on certain legal aspects of electronic commerce in the internal market, among other things, answers this question by establishing a liability regime for online intermediary activities.1 This article explores the anticipated liability standard and concludes that the right to freedom of speech and fair competition on the Internet has been ignored.
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.
This article examines three critical, interrelated challenges for reforming legal protection for computer software: (1) analyzing the market failures that might justify government intervention to define (or alter) the legal entitlements granted for software innovations; (2) predicting the likely path of computer technology; and (3) anticipating and navigating potential impediments to legislative reform of legal protection for software. It warns that patent protection for computer software poses serious potential problems and should be addressed before powerful economic interests vest in large software patent portfolios.
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.
This paper contributes to the economic analysis of copyright in three ways: first, it draws a distinction between the general purpose of copyright law and the administration of the royalty system of payment for the use of copyrighted material; this leads to the principal-agent analysis of modes of payment. Secondly, this approach is applied to a specific topic, the change in copyright law in the form of the introduction of a new property right for performers in the UK that has come about as a result of the harmonisation programme of the European Union. Finally, new data were collected to assess the likely impact this change in law would have on performers' earning using the music industry as a case study. This is novel because there has been no previous attempt to apply empirical evidence to the analysis of copyright law. The paper therefore provides a framework for evaluating changes to copyright law. Copyright 1999 by WWZ and Helbing & Lichtenhahn Verlag AG
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
- 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.
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