WIPIP SESSION 5.A. — Copyrights

Ned Snow, University of South Carolina School of Law

The Tension Between Science and Creativity in the Copyright
Clause

Fabrications: clearly creative, but contrary to the meaning
of “science.” Deceitful expression might provide knowledge about deception. CSAM/revenge
porn: no benefit to the public (evidence of crime is not purpose of creation). If
private originality suggests granting protection but public knowledge doesn’t,
which should prevail?

Jake Linford: Defining falsity is the challenge: is LoTR
false?

Sean Flynn: relevance of “arts”?

Snow: that’s for patents; though colonial statutes clearly
cover the liberal arts, the use of “useful” distinguishes the Constitution from
other formulations. Tam & Brunetti create issues for “discrimination” among
types of content, but if Congress wanted to come in and distinguish expression
that necessitated a violent crime that could work.

Stefania Fusco, University of Notre Dame Law School

The Enduring Value of the International Copyright
Harmonization: A Response to Professor Asay

Asay sees Europe as redistributing/attacking mostly US tech
cos. CDSM is super-Berne, driving regulatory lock-in. Argument: given the
pushback CDSM has received in Europe, this might be an opportunity to harmonize
down. Compare to Trump rollback of environmental rules.

Are overall US interests harmed? It’s rent distribution to ©
owners, including US © owners. However, the new link tax could be subject to
national treatment and Art. 17 is. Of course US companies could move to the EU
to take advantage. Royalties may offset US losses, hedging US against risk of
competition in EU market. [Not sure who the competition is going to be from—some
previously unknown source of tech innovation?] The US has benefited a lot from
harmonization of IP; reversing the process would cause the US to lose
credibility internationally [that ship may have sailed]. Not clear ISPs need
help from © to stay innovative. But serious concerns over freedom of speech
from Art. 17: those are the best argument for the need to harmonize down.

Glynn Lunney: should be honest about net loss to US b/c of
ISP dominance. Also note we’ve had more patent harmonization, to compare.

Sean Flynn, American University Washington College of Law

The Right to Research in Copyright: A Global Comparison of
Statutory Limitations and Exceptions

How open are © exceptions around uses of whole works for facilitating
research? We distinguish limitations and exceptions: defining use as not w/in
scope v. exceptions to scope; focus is latter. Most expansive: open exceptions,
as well as specific research exceptions that have the reproduction and
dissemination right in them, like Germany; next tier: countries that only offer
reproduction exceptions, not sharing, but for broad research purposes. Other:
authorize institution and not person or right version; limit types of works
(Hungary only allows books to be copied in full by hand or w/typewriter). Red:
no exceptions for whole works at all; just a quotation right, and text/data mining
is essentially prohibited. Created a map of the world, which doesn’t break down
on common law/civil law lines. Essentially everyone has a research exemption,
suggesting it’s part of the basic fabric of ©. Oceania: most open region
(though N Am, dominated by Canada/US, also); Europe: most diverse; Latin
America: most restrictive.

Akshat Agrawal: Paywalls affect how these exceptions work in
practice.

A: The research was looking only at the statutes, and not
even at interpretation—just took the words literally, so it’s possible that
interpretations are less liberal (when a statute authorized use they presumed
that meant all uses). See some noncommercial use restrictions—Asian countries
have been moving in that direction, maybe based in autonomy justifications.
There are patterns but nothing complete.

Lunney: are these recent v. historical?

A: Many of the most open countries have laws that are old.
Not all! The new laws are all over the map in breadth. France has a new and
tiny exception; Germany has a new and bigger one; the US has fair use. Many
Asian exceptions are newer—Thailand recently said that anything that complies
with the three-step test is lawful. Singapore is changing every five or six
years. It’s hard to have one story about time, whether that’s newer is better
or that colonial powers determined path evolution. Speculation: more amendments
in the last 30 years = more open, but hasn’t checked that against data. Another
project: the more open regimes are, the more published research a country produces,
even controlling for other variables.

Peter Mezei: Note that Hungary just announced new
amendments, including for libraries to reproduce/disseminate w/in closed
environments like universities.

Akshat Agrawal, judicial law clerk, Delhi High Court

Access to Culture Dialogues: Remodelling Copyright for
“Substantive” Equality in Cultural Discourse

Dominant narratives/coercion to participate in them.
Individuals should be able to use culture to foster self-determination, which
requires exposure to diversity/variety. Media conglomoration leads to
undemocratic bubbles. In India, this means skew towards urban, upper-class, upper-caste
depictions: Bollywood focuses on the elite, foreign locations, English
language. A Dalit character whose name in English means “garbage.” 65% of
directors in Bollywood are upper caste. Indian Performing Rights Society has a
database: 73% of the society are upper class, upper caste.

© incentivizes difference, but not necessarily diversity. It
incentivizes distribution, favoring aesthetic judgments of those who have the
distributive edge. Recommendation: disintermediation so that dissemination isn’t
dominated by urban profit-seekers. More chances for people whose motivations
for creation are not economic.

Victoria Schwartz: How to disintermediate? Not obvious to
her that © is driving these things.

A: Ban transfers of ©. Termination of transfer in the US is
unusual and doesn’t work well; should just ban transfers. This would prevent
vertical integration, decrease incentive to lobby for restrictive rules.

Lunney: how would that work for films/computer software?

A: would make that harder, but that’s ok; only big budget
films really need that.

Zvi Rosen, Southern Illinois University School of Law

Examining Copyright

There’s been substantive examination through US history,
though the meaning has varied. 20th ©, it was more about copyrightability;
19th c./pre 1909 was mostly about subject matter. C Office started
making rules before rulemaking. PGS works were rejected at a much higher rate
than other works.

The first examination? Conn., 1784, incomplete entry for
pamphlet/sermon: he believes it was a refusal.

1989-1904: lots of rejections for blank books, blank forms.
Stopped recording rejections in 1905, presumably distracted with drafting new
law. 1930s: courts reject Office authority to reject applications except on
statutory grounds. 1946: reorganized, began producing more internal reports
including of examinations. 10-12% required additional correspondence, 2%
rejected. But visual arts were the problem—rejected 10% of the time, everything
else 2% or less. Technical drawings were rejected at very high, patent like rates.
In 1960, ©Office found that notice problems accounted for 34% (mostly text); no
©able matter, 27%; manuscript/outline, 17%; blank forms, 5%. Average 557
rejections/month. Bi data 1978-1985. Number requiring correspondence hasn’t
gone down, which helps account for backlog. Percentage that registers varies:
between 90-98% with an outlier when they shifted to electronic application.

2000-2015: Most rejections are VA (visual art); there are noticeable
numbers of text (including computer programs) rejections but the numbers of text
applications are so large it’s not as significant.

Originality, common shapes, logos are big reasons for
rejections. We should consider reserving examination for PGS works, where it
would be required; other works would require only an affidavit that the
category was unproblematic.

Eric Goldman: are you seeing changes in registrants? are we
seeing gaming/trolling on the side of registrants?

A: do see substantial rise in per capita registrations of
graphical works.

Q: since many of these were category based were they fast?

A: yes, about two weeks.

RT: When asking if registration is necessary you can’t just
look at rejection rates. Liebowitz problem: the defendants can’t tell what is actually
at issue if he’s obscuring the matter sued over, and registration provides at
least some assistance.

A: Is Liebowitz a problem of registration system or
litigation system? He’s a symptom of a problem that it’s hard for a small owner
to get relief.

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