WIPIP: PLENARY SESSION 3 — Why American WIP’ers Should Care About International Law

Jerome H. Reichman, Duke Law School, Duke University

Until 1994, there weren’t many options when a nation didn’t
comply with IP treaties: complaints and retaliation against that country’s nationals.
Then came TRIPS. Arbitration, including damages, became available; winner can
also collect damages via tariffs. Hasn’t functioned recently because minimum #
of judges lacking due to Trump but Biden should fix that. New change:
compulsory patent license for export to meet the needs of a country that needs
the product (vaccine) but can’t make it. Threat of compulsory license for
export can often be enough. Regional pooling as a possibility using TRIPS

Jane Ginsburg, Columbia Law School, Columbia University

One can’t separate out questions of local import from
questions with international dimensions: was true before internet, even more
true now.

There’s a caricature of US v. French approaches to ©. But
going back to the sources, it’s much more complicated in motivations for ©–a
lot of utilitarian motivation in France and a lot of natural rights/ “you
create it, it’s yours” sentiment in America. That played out in case law as

Common wisdom was that printing privileges were about
publishers and incentives, not creativity. But Roman (Vatican) privileges were
more granted to authors than printers, and motivations expressed in requesting
and granting them were a mixture of incentive arguments, effort
arguments/anti-free riding arguments, and sentiments like “creativity should be

US termination system and EU contract regulations both try
to deal with authors’ vulnerability/failure to anticipate future forms of
exploiting work.

Rochelle Dreyfuss, New York University School of Law

Current regime started developing when nations were
convinced that interconnection would lead to wealth and peace, but Global South
has not become more wealthy; strong IP has contributed to inequality; we do not
have peace; Brexit and US rejection of TPP/implosion of WTO dispute resolution,
which actually began under Obama. Why move into a field that’s unraveling?
Pandemic has highlighted unique opportunities in this field. Current regime encourages
countries to engage in parallel play—rights in one’s own country—but it’s a
very territorial system. Covid shows territoriality makes little sense. Need
cooperative play/research/development; also should not ratchet up protection
but should focus on access and equity. IT/interoperability; cybersecurity;
other issues also require international treatment.

Scholarship wise, international comparisons provide
important insights, and can be very useful in teaching students as well. Also:
IP owners tend to take one win and try to export it, so you see what is going
to come next.

Jorge Contreras, S. J. Quinney College of Law, University of

Students often treat the results of court cases as the only
possible way the doctrine could have developed, and outside-US cases show that’s
not true. Lots of patent examples, from working requirements to different competition
law interface. Knowing the alternatives helps you argue more broadly both for
policy and for individual case outcomes.

Scholarship wise, you can become “the” expert even on a
small area—your views are important outside the US because you are often the only
US lawyer who comes to Shanghai, Bogota, etc., which magnifies your views and
enables you to disseminate your ideas. Outside US conferences: submissions can
be harder because their requirements are often more rigorous for methodology,
quality of abstract, etc. but it is worth it. Teaching LLMs is also a way to
reach out to foreign lawyers. LLMs can be high ranking officials in their own
countries; they have careers. International IP blogs like IPKat and SpicyIP are
read around the world: read it, write for it. There’s an appetite abroad for
those interested in sharing their knowledge; surprising how few US academics do

Moderator: Irene Calboli, Texas A&M University School of

Love and hate for US requires navigating some sensitive
issues. Open access is one way of reaching people we would otherwise never

Reichman: important to address problems w/US approaches.

Discussion of use of foreign precedents, much more common in
other countries than in US. Contreras suggests it’s legislators and agencies
that are the real laggards.

Ginsburg: Especially good for US students to learn that (1)
we aren’t completely on our own; we do have rules (even if US often doesn’t
care to follow them) and (2) there are often other ways of doing things.

Contreras: our students need to know that their practices
will have international issues; among other things, with eBay the US is a huge
outlier in patent remedies, which is why all these cases are going to be
brought in Germany!

Ginsburg: clients who have websites have to think about
non-US law.

Reichman: Harmonization got a bad name because it was ever upwards;
we have to think about compromise to protect the public interest.

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WIPIP SESSION 5.A. — Copyrights

Ned Snow, University of South Carolina School of Law

The Tension Between Science and Creativity in the Copyright

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

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

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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IP writing competition for law students

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WIPIP, SESSION 2.B. — Copyrights

Cathay Smith, University of Montana Blewett School of Law

Weaponizing Copyright

Pure suppression: Dr. Drew’s minimization of Covid;
YouTubers compiled these clips and he sent takedown notices. Lawyer asserted ©
over text messages to ex partner when they were published on a blog by the ex
partner to substantiate that she experienced abuse. Netflix v. negative tweets
of those who shared the trailer of its controversial film Cuties (but only
negative tweets). Religious © assertion to control doctrine. Suppressing
criticism, but not necessarily suppressing content. Finally, punitive
assertions: Hustler v. Moral Majority; Campos Santos v. Pewdiepie where a game
studio asserted © against Pewdiepie b/c of his racist comments in livestreams
of another game. Sony v Cohen: Sony says an artist who’s trying to terminate
transfers can’t use album artwork in advertising his work. And another
potential candidate: moral rights/no econ interest: Pepe the Frog v. Alt-Right,
Greenblatt v. McCloskey (the St. Louis gun couple who used photo of them);
musicians v. Trump, Success Kid’s mom v. Steve King; Anish Kapoor v. NRA (for
using Chicago’s Bean). To preserve privacy? Much scholarship on this—Hill v.
Public Advocate (engagement photos used in anti-gay political ad); revenge
porn; Monge v. Maya/secret wedding photos.

Copyright is asserted for personal interests, not market
exclusivity/economic interests in the work. “Weaponizing” can be good or bad—a
weapon can be in the hand of an aggressor or in the hands of
powerless/traditionally defenseless. But there are also abusive uses of © that
seem weaponized for economic purposes: anticompetive uses, abusive overclaims.
Those are excluded from her definition because they’re ultimately financially
driven and have money/market objectives.

Why ©? It’s better than other causes of action which are
limited by 1A and §230.

Blurry lines/overlapping objectives—erase information/bury
facts, suppress speech/criticism, punish/retaliate, protect
dignity/reputation/against tarnishment, preserve privacy—but the lines are
blurred and overlapping. Greenblatt says it’s not about the money when he
asserts rights against the gun toting couple, but is this about dignity, or
retaliation when they’re smugly handing out greeting cards with them pointing
guns, or punishing speech, or money, or all of these things? Hard to find a
line within © that will allow her to distinguish revenge porn victims from
Harvey Weinstein for purposes of identifying abusive claims.

Lemley: maybe this is more about how © has infiltrated our
lives so that we all exist in a field of uses and infringements—society couldn’t
exist if we stopped all that but it means there’s an ability to invoke the rule
“you’re all violating the law all the time” in order to achieve non © goals.
One way to deal with that is at the back end—weeding out bad uses—but maybe
this is more about the overall problem that too many things are ©able and too
many things are infringing.

Guy Rub: reminds him of Wendy Gordon’s anti dissemination
motives from the 1980s—sounds like manybe all of these would be washed away by
fair use.

Andrew Gilden: Note that trespass law is weaponized all the
time—who has the ability to get the cops to come harass their neighbors? What’s
the comparative power dynamic in ©? Is it more egalitarian?

Yvette Liebesman: the McCloskeys are suing Redbubble, the
photographer, and others for trespass, violation of publicity rights—for the
same images that they used to become famous. They are trying to get awarded the

Jake Linford: is there a way to structure this to allow
punching up but not punching down? Compare attractiveness of Simon Tam’s claim
v. that of the Washington football team. May be difficult to do.

Annemarie Bridy: Google sees a ton of DMCA abuse.
Intermediaries can sometimes step in where legislatures are paralyzed, though
laws against nonconsensual porn are now coming in. Now when we get a DMCA
complaint, we don’t take them down for © reasons but for violation of the
policy against nonconsensual images. A way to keep © more in its lane.

Xiyin Tang, UCLA School of Law

The Privatization of Copyright’s Public Law

Subtle but profound shift: shifting public-facing principles
to require/defer to private agreements. The old strategy: extending © by
statute: in the 90s, term extension, foreign works, anticircumvention, adding subject
matter. The new: contract around the statutory limits. Or get the statute to change—the
revision of music license ratesetting by wiping out public interest/access
considerations to be replaced by “willing buyer/willing seller.” Contracting
out of first sale by framing functional sales as licenses.

Although misuse isn’t new, the fact that it hasn’t much revived
in response to these changes shows something about deference to private markets.
Contracted to more antitrust-like situations. But misuse is important when,
say, © owners create tuggable blanket licenses that allow them to remove any
uses to which they object—super-moral rights. And while Art. 17 requires a
complaint/redress mechanism for material that is used lawfully in criticism,
review, pastiche, it doesn’t say anything about penalties for wrongful blocking.
They could just send multiple takedowns.

Lemley: what do we do about Content ID? The cops playing
music to prevent records of their behavior being shared are doing a bad thing.
Neither side should be able to demand perfection or the platform will have to
pay statutory damages.

Tang: statutory damages could be a sliding scale—an AI that
messed up could mean a few hundred in statutory damages. There is a deterrent

Andrew Gilden, Willamette University College of Law

Capacity and Copyright

AI and © discussion hasn’t discussed mental capacity at all.
Creative spark is required, but there is no additional threshold of capacity.
Example: Ron Swanson’s
, which he wrote when he was 8: it would not likely be probated, but is
almost certainly ©able. Children can’t execute a will, but they can create. But
note that both © and trusts/estates are supposed to structure rights for heirs.
If the dominant theory of © is that authors are rational actors, that’s difficult
to reconcile with not having a capacity requirement.

Capacity requirement protects individuals from exploitation;
the concerns are also present w/authors but not in expected ways. Authors who
lack ability to contract can be highly vulnerable to family members—example of
Britney Spears who can produce highly valued IP but is not allowed to control
any of it. If she were unable to author works during incapacity, perhaps there’d
be more incentives to work to restore her capacity. Parents’ decisions to
commodify children might be questionable.

However, capacity doctrines are discriminatory in application.
Burden people w/disabilities; insane delusion doctrine is applied to invalidate
people w/marginalized beliefs (such as a donation to the National Women’s Party
rejected for neurotic degree of feminism).

Also, perhaps capacity is in tension with ©–the cultural association
b/t creativity and madness is a long one.

What would a capacity requirement look like? Author should
have a general awareness of context in which they are creating; ability to
deliberate about creative process; voluntarily participates in fixation; be able
to connect these elements in a coherent plan. Perhaps an age limit, though not
sure what that would be.

Victoria Schwartz: © is about acquiring rights rather than
giving them away. Assignments/WFH agreements seem better candidates for
capacity requirements/analogies to wills.

Gilden: Agrees that giving rights away is an issue, but also
interested in why we give people © in the first place if they lack capacity.

Zvi Rosen: Coverture and ©. (I couldn’t find a book by that
name but this
looks interesting
.) Where would the © go with a capacity requirement: would
it dissolve? Or go to someone else?

Rebecca Curtin: note that the capacity to marry is lower threshold.

Gilden: what’s closer to the core of autonomy/human choice?
Interesting question.

Sean O’Connor, George Mason University, Antonin Scalia Law

Copyright, Science, and Federalism

Part of “Means of Innovation” project—trying to expand our
interpretation of the IP clause by showing how French philosophes were thinking
about it. Uncovering meanings of words before late 1800s that have very
different meanings today. Takes seriously that you look at writings, authors,
science v. discoveries, inventors, useful arts in the Clause. Art is the way we
do something in the world; science is the way we step back as an observer and
systematize. Title confusion: is this just a historical paper?

Covid brought new attention to ©’s role in science, not just
artistic expression. Premise: of standard IP justifications, no one has won
out. We have no real sense of © because of shift from protecting substantive
scientific expression to protecting artistic content.

Deep purpose of ©: to get things out of manuscript and get
them into circulation, even before the printing press. Publishing as a concept
goes back to Greco-Roman times: to make public statements. Censorship was
secondary; the idea was to control all fields through guilds, and printing was
thus a guild occupation. But the Enlightenment sought public availability v.
private hoarding of knowledge, especially among guilds. Desire: codify
knowledge in text and plates and put out there for all to access and learn
from. Statute of Anne flows from that background. Important that Statute of
Anne provides for library deposit. Notably, music was confirmed as statutory
subject matter on its basis as a science not an art: Bach v. Longman, 1777;
judge expressly compares mathematical and scientific notation to musical notation
and says former is ©able so latter is too. That’s why there’s no performance
right. Musical notation is a mode of analysis.

IP clause: in that reading, creative or fine arts appear
intentionally left out. Probably because that was all that was needed for
national economy/defense. An argument in favor of saying that the Constitution
only provided limited powers. Framers aren’t against © for fine arts, but they
were leaving it to the states. Unprotected subject matter like pre 72 sound
recordings were in fact protected under state law.

Confirmed by 1790 Copyright Act limited to maps, books, and
charts. Argues that we allowed new subject matter for sheet music—added again
in science mode—and engravings, because engraved plates are key for scientific
publications such as encyclopedias and Grey’s Anatomy, as well as official
documents like stock and currency. Thus, in early 1800s, expansion of © is
still for knowledge, not pure creativity.

It’s at the end of the 1800s that art and science start to
shift, and art shifts to meaning fine/decorative/creative arts, not just
artifice/manipulation of environment for functional purpose, while science gets
narrowed from generalizable knowledge to more tech-focus. We’re losing our mooring.
Nothing changed in the Constitution but the subject matter expanded without

So what? If we’re not going to roll back subject matter, and
he’s not advocating that, then what do we do about the expansion exceeding
Congress’s constitutional authority? Maybe we just give up on the IP clause as
a constraint. Or do we try to revise it? That’s probably infeasible. We just don’t
have a coherent account, and until we do we will be in a muddle. Even more
practically, if the protection is for creative works, then utilitarian justification
only probably does not work. Attribution/integrity would have to be brought in.

Tyler Ochoa: Malla Pollack’s article on meaning of progress
as dissemination is relevant/consistent. But on federalism: the Federalist
Papers say that states can’t do this effectively, and he’s seen nothing making
that distinction b/t creative arts and scientific knowledge—might just drag
creative arts incidentally along with it. 1802 protection for prints is only a
few years after the first © Act, but nothing in the Act says it’s limited to
scientific purposes even if that’s the core motivation.

Derek Miller: The Stationers/publishers are the other piece:
the authorial right arises out of opposition to the publishers, and your
account seems to leave them out. The Bach case is about what’s a “writing.”

A: read the case again—he reads it as being a scientific

Zvi Rosen: Ruth Shaw Leonard wrote a great dissertation in
the 1930s where she went through every registered Mass. ©, worth looking at.

A: Agrees that by the end of the 1800s it’s all fine arts,
but that’s the problem.

Rosen: to what extent is that about constitutional

A: Commentator at the time notes the shift in use of the
term: useful arts have become “technology,” and so they just ignore the word “useful”
and say the clause protects “arts and sciences.”

Peter Karol: Q about role of religion. So many engravings
were religious.

A: theology would be the related science. Even if I’m right,
there’s so much stuff that seems to be conveying wisdom/systematic knowledge of
environment. If you’re conveying substantive knowledge about the religion, then
it’s part of “science.” So the fundamental difficulty is: when does it cross
the line from knowledge to entertainment?

Tang: what did the Framers think the relationship b/t © and
patent was? What work was © doing that patent wasn’t already doing in this framing?

A: patents were still evolving at the time especially in
terms of what disclosure was required. Instructive that they don’t use those terms,
patent and ©, because they didn’t necessarily want to adopt the European
versions. But the paradigmatic way of scientific dissemination at the time was
treatises—think of Euclid etc.

Christine Farley: Invention of photography as changing how
we think of fine art: as representational and therefore a way to disseminate

A: you keep getting these dual use media where you can do
both; even the Greek plays were about teaching morality. The original system
keeps breaking down—the Enlightenment dream is about identifying knowledge, but
much creative expression conveys important info.

Graham Reynolds, Peter A. Allard School of Law, University
of British Columbia

Copyright as (Progressive) Property

Critique of IP as property: protects the power of the
already rich & powerful, especially people who are white/male/from the global
North. So could replacing the property concept make © more equitable?

Frequent references to © as property in courts,
legislatures, constitutions around the world complicate this effort. Building
on literature by exploring progressive property theory as a response: PPT
recognizes that common conception of property as protection of individual
control over specific resources is legally influential and intuitively
powerful. But inevitable impact of one person’s property on others make it
inadequate. Have to look at underlying human values and social relations. That
can help © theory, and it can also help PPT—which may need more attention to acquisition
of rights and redistribution, both of which © theory has explored. We can also
look into the back catalog of property theory more generally to find more
useful building blocks.

Lemley: Understands the desire to make the best of a bad
situation, but fears it’s still a rigged game. Adoption of property rhetoric
has not led us either in IP or in property law to progressive policies; the
instinctual/easy sell of “absolute despotic dominion” is powerful. What to do
about that? Maybe not talk so much about extending PPT from real property but more
about how we differentiate types of property.

Rub: the problem isn’t property per se, but what people
think property means! Let’s assume we can change people’s minds: does it solve
the problem that both “good” and “bad” people use © to further their interests?

A: might help in certain ways around how we define reproduction;
fair dealing/fair use; but not a total reconceptualization.

Tang: Note that © owners move away from property when it
helps them: characterizing sales as licenses, which doesn’t work in real property;
characterizing works as their “children” where it would no longer be acceptable
to say you own your actual children.

Carys Craig: Canadian SCt case accepting notion of © as
property was a throwaway sentence without debate; we do have to deal with it
strategically but may not need to be resigned to it. It’s not property that’s
the problem but rhetoric and imagination.

Bita Amani: Unjust enrichment as another relevant concept—uses
and abuses.

RT: Another variant of the worry expressed by some of the
comments: At least some defenders of expansive exclusive rights are presenting ©
as already progressive: CO educational materials trying to get students to
think of themselves as creators and therefore to refrain from what we call
copying, or infringement (compare to the quote from a progressive economist as
reported by John Maynard Keynes: “[w]hen he was asked if he favored private
property, Montgomery replied, ‘I do—so strongly that I want everyone in Texas
to have some.”’); claims that © is a way for members of marginalized groups to
build wealth without starting with other social capital.

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WIPIP, PLENARY SESSION 1 — Race, Gender, and IP

Dan Burk, University of California, Irvine School of Law

Racial Bias in Algorithmic IP

Unpacking bias: divergent meanings: statistical bias (sampling),
design (wrong type of model, model created for one purpose used for another), the
fact that “raw data” is an oxymoron, social bias (inappropriate social outcome—different
than the bias that designers often talk about, so they may talk past each other
even if there’s overlap). This can make some responses beside the point:
transparency, auditing, “human in the loop”—those are mostly attempts at better
technical accuracy. That’s a red herring. Example from criminal justice: parole
determinations. Zip code is a major factor in these, and that’s correlated with
poverty and race. It’s a really good predictor, but that’s the wrong question:
why do we put up with that connection/digital redlining? An AI patent examiner
that rejects/narrow claims based on race of inventor, that’s not inaccurate to
past practice. It’s wrong in the sense of being immoral and [supposedly]
socially unacceptable.

Machine bias may be the wrong question. Let’s deal with the
bias in the system; it doesn’t matter whether it comes from a human or from an
AI trained on the past practices of humans. But there are differences in
practice: Illusion of objectivity; humans put too much faith in numbers, Donna
Haraway’s “God trick” in which the human is no longer visible in the picture. E.g.
overweighting of numerical evaluations. Algorithmic performativity: they enact
what they assume and create their own social facts. The yearly ranking of law
schools by USNWR. Wendy Chun suggests: we should use these systems as
diagnostics. We don’t think a weather forecast is diagnostic or that it can be
used to create better weather; we can use AIs to find out what our biases are.

Ann Bartow, University of New Hampshire Franklin Pierce
School of Law

Ruth Bader Ginsburg’s Copyright Jurisprudence (with Ryan Vacca)

Strong copyright and liberal politics. As a DC Circuit judge
and SCt Justice, she authored sixteen opinions in © cases, ten majority, four
concurrences, two dissent, and joined 11 others, ten majority, five of which
were unanimous, and one concurrance. Mostly owner-favorable and Goliath over
David, which may seem surprising. Five opinions favor authors: Tasini, Eldred,
Golan, Reid (WFH), and arguably Muchnick, the followup to Tasini. Many were in
favor of owners: Petrella, Nat’l Cable TV Ass’n v. Copyright Royalty Tribunal,
Atari v. Oman (2x). Concurred in Grokster & Star Athletica; fiery dissent
in Kirtsaeng. But did favor accused infringers sometimes: Fourth Estate v.
Wall-Street.com & OddzOn v. Oman as well as concurring in Quality King. She
joined Campbell, Fogerty v. Fantasy, Feltner, and several others.

Unpersuasive explanations: widely known love of opera and
art (other Justices have those too); Jane Ginsburg’s uncontested expertise (Ginsburg
fille isn’t particularly highly cited by Ginsburg J. and Breyer cited her against
a Ginsburg opinion).

Better: Incrementalism—if judges reach unnecessary issues,
this creates instability/undue stress on judiciary. Evident in gender equality
work and critique of reproductive rights litigation based on lack of incrementalism.
Intergovernmental deference: evolution/interpretation of law shouldn’t be
diatribe against Congress, President, admin agencies, or states, but as dialogue.
Courts have instiuttional capacity constraints and must do this to be effective.
Lily Ledbetter Fair Pay Act after loss at Scotus; Petrella opinion recounts
back and forth with Congress and courts. Atari v. Oman: Sent it back to Office
twice and told them to look at Feist.

Eldred and institutional capacity: worried about whether the
courts were the right institutions to decide duration. How does Breyer know his
economic analysis is right? [Framed as “where is his economics degree from? And
Lemley in chat says “Oxford.”]

Some divergence in © jurisprudence: seemed to favor
alternative remedies in ©–In Tasini, suggested court shouldn’t issue
injunction preventing inclusion of the disputed articles, but instead compulsory
licenses/consent decrees. She was much more skeptical of alternative remedies,
like a lesser military school for women instead of VMI, for gender

Ryan Vacca: responding to chat point that citing Jane Ginsburg
isn’t a great proxy for being influenced by her, and they acknowledge this.

Dalindyebo Shabalala, University of Dayton School of Law

Solomon Linda, Traditional Knowledge Pirate? Mbube, “The
Lion Sleeps Tonight” and Traditional Knowledge

Challenging the originality of Linda’s work as potential cultural
threat. The story: popularized in the 1950s including by Pete Seeger from a pop
music record in South Africa. That song, story goes, was composed by Solomon
Linda, who died penniless while millions were made. 2000 article resurrected
the story of misappropriation and injustice; led to a suit against Disney.
Settlement elided the basic question of who really created it. He argues it
should be tested in court because it’s a key issue in TK: What happens when a
traditional piece of music gets translated, derived from, built on, recorded,
and moved into the © system? The classic TK story is an outsider coming in and
taking it into the © system. Story of Linda is, he suggests, a much more
traditional trajectory: an insider who traverses the boundary of the community
to the outside and acts as the translator, then lays claim themself to the TK.
Musicologically the origin story is more complicated, and the question of what
rights insiders should get is much more complicated than misappropriation by
record companies.

Linda was an originator of a style. Urban music/dance, built
on tradition of rural Zulu style. He took a wedding song sung by village girls.
Developed in a sharing/building/borrowing culture. How should that affect what
we think the world owes Linda? Community rules may continue to bind insiders
when they try to exploit works outside those communities. We should not think
of this as a new problem. © has always been bound up with nationalism. The
problem to be solved was misappropriation across borders. The problem for
traditional communities is very much the same. Should think about solutions for
insiders who flee.

Bita Amani, Queen’s University Faculty of Law

Law, Race, and Alchemy: Exclusion(s), Existential Crises,
and the Transformative Possibilities of Intellectual Properties

Operationalizing privilege through law presented as formally
equal. Curricula/cultural materials are an important part of naturalizing
privilege. “Exclusivity” of rights: IPRs are part of broader colonial legal
regimes, so why would we expect anything other than disparate impact in rights
acquisition and enforcement? Authorship in fact v. authorship in law is gendered/raced;
work v. play distinction means some of us are disenfranchised from labor/means
of production while others become owners.

Carys Craig, Osgoode Hall Law School, York University (with
Anupriya Dhonchak)

A Feminist Theory of Moral Rights: Creative Agency and
Voices from the Margin

Not surprising that feminism would have something to say
about a right conceived of as intensely personal. Dichotomies: public/personal;
economic/moral; rational/emotional; masculine/feminized; valued/devalued: so
moral rights are the feminized Other. Personhood rationales have therefore
tried to masculinize/propertize the justifications. The image of the artist is
that of the solitary male genius, individualized author. Hegel, proponent of
moral rights, held that women were not capable of art. Kant likewise thought
that knowledge unfitted women for their places. Not clear why a feminist would start
from Kant and Hegel! Moral rights rhetoric is also filled with references to
paternity; patriarchal metaphors of birth without women, right to control
offspring. We need a better ontology of authorship.

A feminist relational theory of authorship locates
creativity in cultural situations and social relationsh; creative capacity is
enabled by relational web. Relational autonomy, capacity to make meaning is the
foundation of authorial rights. Authorship as dialogue/relationships of
communication. Every text is multivocal; for feminists, this invites
exploration and activating of the unvoiced, exiled world of women (Mary O’Connor).

Could say that integrity right ensures dialogue is a real
one, but we think that clings to the romantic idea of there being a single
meaning bestowed on work by author, and dialogism refutes that at the core. Risk
of weaponizing moral rights against those who critique the dominant culture. Integrity
right misundersands relationship b/t author, text and public in way that casts
disruptive dialogic engagement as moral and legal wrong; not consistent
w/feminist politics of confrontation, resistance, and social reform. Example: Fearless
Girl attacked as violation of moral rights of bull sculpture’s sculptor.

But: attribution right deserves attention through feminist
lens. Tracing who is speaking, from where, on behalf of whom can be about
feminism and authorship. De-Kanting acknowledgement: Kant thinks that the harm
is compelled speech, but feminist theory is that the harm is the silencing, the
refusal to acknowledge that someone has spoken. The power to make knowledge
claims v. the people who have been erased from/made invisible in our narratives.
Attribution is a call against erasure.

Caveat: it doesn’t follow that © is the right space to
achieve political goal of amplifying marginal voices given the bluntness of
legal tools and power needed to wield them. Empowering communities of practice
is the goal. Moral rights don’t occupy a moral high ground; they’re based on
the same patterns of exclusion and control as ©, but can benefit from feminist

Moderator: J. Glynn Lunney, Texas A&M University School
of Law

Lemley: AI does expose some fundamental contradictions in
what we think of as inequality: a broader problem of how we measure equality
and how we want to balance procedure and substance. Making that explicit can be

For Bartow: Don’t shy away from the harm she did in throwing
out Sony in her Grokster concurrence, Petrella and its authorization of a wave
of © lawsuits forever, etc. There are interesting agency/courts/etc. metrics to
all of these, it is still worth noting that she ends up on the side of the ©
owner and he doesn’t think that’s a coincidence.

Burk: all human tech may be prosthetic: cars are feet
prosthetics; AIs may be cognitive prosthetics, but bring all human baggage.
Amplifying and disclosing may be the useful parts—using them as diagnostics to
figure out where we’ve been screwing up. But they are our messes to solve.

Bartow: yes, and that’s painful about this project.

Betsy Rosenblatt: For Shabalala: Norms are good at governing
in communities, but they are really bad at governing outside of communities.
Natural takeaway might not be that everyone owns TK but that no one does, but
that may be imposing a norm on the group from outside. Maybe that’s exactly
where we need laws (when it moves outside the community) but then whose rules
should we adopt as the law?

Shabalala: This is the key part of the project. The premise
has to be cultural sovereignty: the only communities with a strong claim have
to build on a preexisting political sovereignty, b/c the right to regulate
citizens’ lives is built on sovereignty. Rosenblatt says that’s a very American
way of looking at sovereignty, but Shabalala responds that African nations have
wholeheartedly adopted it, although there are sub-sovereign, sub-metropolitan
communities that are clearly left out of this formulation, and that is a real
problem. Reaching outside the community is required to regulate exploitation,
but TK may not be the answer.

Amani: Note that in the US the definition of an Indian comes
from the federal government; the problem is complementarity of structural
inequality that is imposed.

RT: for Craig: Is this a right/interest of the author or a
right/interest of the audience? Consider anonymity; women writing as men; whites
writing as natives.

Craig: it’s about
relationships, with text as vehicle for dialogic engagement. Ideally we’d know
who is speaking, but wouldn’t insist upon removing anonymity. Risk of silencing
voices with removal of anonymity matters. [RT: we valorize some kinds of
contestation, but there are situations where the speaker treats the audience as
marks to be exploited
—good to think about those situations when conceptualizing
moral rights.]

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unconscionability prevents enforcement of arbitration agreement for consumer claims

Cabatit v. Sunnova Energy Corp., No. C089576, —
Cal.Rptr.3d —-, 2020 WL 8365909 (Ct. App. Dec. 31, 2020)

California isn’t fond of mandatory consumer arbitration.
Here, the court finds the arbitration agreement unconscionable and refuses to
enforce it against a claim relating to the solar power lease agreement between
the Cabatits and Sunnova. The rule of McGill v. Citibank, N.A., 2 Cal.5th 945 (2017)—that
an arbitration agreement waiving statutory remedies under California consumer
protection law is unenforceable—was unnecessary to the decision. Because
Sunnova didn’t argue in the trial court that the arbitrator had to determine
the unconscionability issue, that issue was waived; the arbitration clause was procedurally
and substantively unconscionable under general principles independent of McGill.
Some details:

The salesperson said the Cabatits
did not need to read the agreement language because he would go over the
details, but the Cabatits would need to sign the agreement and initial certain
parts before any work could be done. The salesperson scrolled through the
agreement language quickly, indicating where signatures or initials were

Indiana Cabatit speaks and
understands English fairly well, but she does not understand complicated or
technical terms. As the salesperson scrolled through the agreement language,
Indiana Cabatit signed or initialed where the salesperson indicated, even
though she did not understand most of what he was saying. The salesperson did
not explain anything about arbitration.

The Cabatits had no computer and no
internet access. They did not receive a copy of the agreement until this
dispute arose and their daughter obtained a copy.

This was a procedurally unconscionable contract of adhesion,
with no opportunity to bargain over terms, which were not explained anyway. It
wasn’t enough that Indiana Cabatit signed a statement that she had read the
terms of the agreement, and even if the arbitration provision was “conspicuous”
in the abstract, the evidence was that the salesperson scrolled through the
agreement, and the arbitration clause was not called to the Cabatits’
attention. And any right to cancel within 7 days “was meaningless because
Sunnova did not give them a copy of the agreement during the relevant time
period and there is no evidence such a right was explained to the Cabatits.”
The context indicated oppression and surprise, resulting in “a high degree of
procedural unconscionability.”

Substantively, this was a one-sided agreement which required
the Cabatits to arbitrate their claims, but allowed Sunova to file in court if
the Cabatits defaulted (defined as failure to make a payment, failure to
perform an obligation under the lease, providing false information, or assigning
the lease without prior authorization). “In other words, Sunnova reserved the
right to take most of its claims to court but purported to deny the Cabatits
the same opportunity.” Although the Cabatits were allowed to go to court to
seek (1) injunctive relief for any threatened conduct that could cause
irreparable harm, (2) a judgment confirming the award, or (3) a small claims
judgment, that was still too one-sided given the breadth of “default” favoring
Sunnova. Sunnova didn’t show it had special need for this one-sidedness.

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survey sustains false advertising claim alleging misleading use of military imagery

Mahindra & Mahindra Ltd. v. FCA US LLC, 2021 WL 323253,
No. 18-cv-12645 (E.D. Mich. Feb. 1, 2021)

Plaintiffs sued FCA for a judgment of noninfringement of the
Jeep grille design in its Roxor vehicle (which dispute mainly took place in the
ITC), and FCA counterclaimed for, among other things, false advertising (over
which the ITC lacked jurisdiction). Here, the court denies plaintiffs’ summary
judgment motion on the false advertising counterclaim, which relates to an ad
that allegedly misrepresented plaintiffs’ vehicles’ history with the US

The Roxor’s design and construction is “based on a long line
of military-style vehicles that [plaintiffs] have been manufacturing and
selling in India and around the world for over 70 years, since the end of World
War II.” The 30-second
ad at issue

features Roxor vehicles of various
colors driving on unpaved mountain trails, along with various images of
individuals camping, hiking and chain-sawing logs. It also includes various
military imagery and references. According to Defendant, “more than 20 seconds”
of the 30-second Advertisement displays such military-inspired elements,
including the U.S. Army star logo, a vehicle operator wearing camouflage in a
camouflage vehicle, an Army green version of the Roxor, a man dressed in Army
green attire, and the Roxor logo on an Army green background. Plaintiffs
emphasize that the U.S. military “is never mentioned in the commercial.” 

The Advertisement’s voice-over
script is as follows:

When the mission calls for
military grade grit, call in an off-road vehicle built on more than 70 years of
hardcore heritage. The one that makes “there’s no way we’re getting out of
here” the best news you’ve heard all day, and answers menacing terrain with,
“Is that all you’ve got? Get out there in legendary off-road vehicle: Roxor,
from Mahindra. There’s plenty to be done.

FCA argued that this ad falsely evoked a connection with the
US military. (Twenty years ago, there were a handful of cases saying that
claims like this—the D’s ad falsely connected it to a third party—asserted
someone else’s rights and so the non-owner-plaintiff was not the right
plaintiff, but that reasoning probably doesn’t survive Lexmark.) (FCA
also argued that evoking the US military “suggests a shared-legacy between the
Roxor vehicle and the Jeep® brand and the Jeep® brand’s U.S. [mi]litary’s
heritage,” though that really seems a bridge too far—no pun intended—and the
survey, wisely, didn’t bother to test that idea.)

Hal Poret conducted a survey for FCA, which he concluded
found that: (1) at least 46.3% of respondents believe that the Roxor has been
used by the military or has a military history/heritage; (2) 70.4% of
respondents believe that the Roxor is connected to the military; and (3) 37.0%
of respondents believe that the Advertisement’s message pertains to the U.S.
military. In response, plaintiffs argued that “[t]here is no evidence in the
record that a single Roxor vehicle buyer saw the Advertisement.”

The court found that there was no literal falsity; the ad
was ambiguous in using the phrases “[w]hen the mission calls for military grade
grit”; “[c]all in an off-road vehicle built on more than 70 years of hardcore
heritage”; and “[g]et out there in a legendary off-road vehicle: Roxor, from
Mahindra” along with black-and-white footage of a Jeep during World War II.

This was not puffery. The statements and imagery were
neither “exaggerated, blustering and boasting” nor a “general claim of
superiority over comparable products.” The court would not equate “historic
military footage, a claim that something is ‘military grade,’ and a suggestion
that company’s 70 years of heritage is connected to the U.S. military” with “vague
phrases which are ‘nothing more than a mere expression of opinion.’”

The survey was sufficient evidence for a reasonable
factfinder to find misleadingness and deception, at least for purposes of
securing injunctive relief. Among the relevant responses:

[What was the main message or
message of the commercial we showed you?] Roxor is a new off road vehicle that
has a long history of being used in the military.

[What reasons, if any, did the
commercial give for choosing to purchase the advertised vehicle?] Military use
in World War Two; theyve [sic] been used in the military for years.

[What did the commercial say or
show relating to the history or heritage of the advertised vehicle?] It showed
pictures of it working in the military from many years ago; Used by our
military in the 2nd world war [sic]; That the military used this brand for its

Materiality: The court framed this as whether suggesting a
“connection” between the U.S. military and the Roxor was “an inherent quality
or characteristic,” which I find unhelpful for modern materiality analysis.  Plaintiffs emphasized that it was undisputed
that the “clip and reference to ‘military grade grit’ comprise a de minimis
portion” of the ad. “[A] rational trier of fact could conclude that the
disputed issues relate to the inherent quality of the Roxor,” since there was
testimony that plaintiffs’ history and heritage was useful to its brand story.
Even though the reference was short, length wasn’t required, given that FCA “pointed
to several instances where Plaintiffs considered the advantages of including
reference to the military grade, which concern the relevant consumer market..”

Causal link to the claimant’s injury: FCA only sought
disgoragement and a permanent injunction, not damages. (Only!) So it wasn’t
required to quantify its damages. Rather, “logical likelihood of damages is
sufficient.” FCA provided evidence that the ad was likely to cause harm,
specifically “causing it to lose singular control over its brand image and
diluting the distinctiveness of the brand, rendering its marketing messaging
less effective and causing it to have to spend more to communicate
effectively.” And: “[Plaintiffs] are trying to leverage the Jeep® DNA just as
we plan to. And based on my own experience, it appears [Plaintiffs are]
targeting people who are interested in the Jeep® brand.” Although some of the
evidence was about the Roxor generally, the Poret survey was sufficient to show
the requisite harm causation.


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Uber avoids taxi suit because of causation problems

Ezeokoli v. Uber Technol., Inc., 2021 WL 247975, No. A156445
(Cal. Ct. App. Jan. 26, 2021)

Plaintiffs, a putative class of taxi drivers, lost this
Lanham Act false advertising appeal because they couldn’t show that Uber’s
allegedly false statements harmed them (as opposed to Uber’s nonfalse business
model). Uber allegedly misrepresented the availability and proximity of rides
through cartoon images of cars displayed on its consumer app; (2)
misrepresented the safety of its service; (3) misrepresented the legality of
its operations at certain airports; and (4) made false and misleading statements
about driver gratuities.

Uber won summary judgment with “evidence that (1) the
plaintiffs could not show reduced income from driving taxis during the relevant
period; and (2) they could not show that any economic harm was caused by the
alleged misrepresentations.” In particular, “as to the challenged statements
related to safety concerns, only a very small percentage—fewer than 2.5
percent—of Uber users would have seen them.”

Plaintiffs could not succeed on appeal with deposition
testimony from individual drivers that they were working more, but earning
less, once Uber became a competitor. Their speculation that this was driven by
Uber’s false advertising wasn’t enough. Although the Lanham Act expressly
authorizes suit by a person who “who believes that he or she is likely to be
damaged,” standing requires “a real possibility of … being damaged and not the
mere assertion of a belief.”

Nor was an economist’s expert report that proposed a
methodology for estimating their damages plus a promise of survey data regarding
consumer deception. The damages estimate would have been based on the full
competition from Uber; it wasn’t enough to promise to sort out the impact of
false statements later.

No presumption of injury and causation applied because
Uber’s advertising wasn’t directly comparative. In a footnote, the court
endorsed the reasoning of Il. Transp. Trade Association v. City of Chicago, 839
F.3d 594 (7th Cir. 2016): People might prefer Uber’s “storage of payment
information, so that one does not need to be carrying cash or a credit card;
the ability to see a time estimate of how long a pickup will take and also a
driver’s rating by past users; and the ability to request a ride from wherever
one is (e.g., from the comfort of home, inside during the rain rather than by
hailing on a street).”

As to the comparative advertising point, the trial court
reasoned: “Plaintiffs do not show evidence that Uber made actionable
comparative statements in the context of advertising. ‘Statements made to the
media and published in a journalist’s news article concerning a matter of
public importance are not commercial speech and are protected under the First
Amendment.’ ” For example, an alleged statement by Uber’s Head of
Communications for the Americas to a local news affiliate that Uber was “
‘confident that every ride on the Uber platform is safer than a taxi’ ” hadn’t
been shown to have been “made as part of a coordinated advertising campaign or
with the intent to influence consumer opinion.”

Uber’s claims of, for example, the “ ‘safest rides on the
road’ ” and “ ‘always the safest experience,’ ” employed “ ‘an industry leading
background check process,’ ” and “ ‘thoroughly screen[ing]’ ” its drivers “ ‘through
a rigorous process we’ve developed using industry-leading standards’ ” weren’t
comparative in the way that would trigger a presumption of injury/causation
because this wasn’t a two-player market. The trial court found that Uber
“exists in a complex market for personal transportation, and taxis are not its
only, or even its primary, competitor” so any business gained by Uber did not
necessarily mean lost business for taxi drivers. The court of appeals pointed
out that “a survey that even plaintiffs’ expert relied on found that riders
chose Uber over taxis and other modes of transportation for a variety of
reasons, including safety, comfort, ease of use and payment, time savings, and
reliability.” [This reasoning shows the value of a regulatory state that can
act against false advertising that causes generalized risks to everyone in the
market. Also, frankly, saying that taxis aren’t the primary competitor is less
plausible than saying that it’s easy to not use Facebook.]

Plaintiffs’ proposed survey expert “failed to explain how
his survey design would eventually assess the impact of the alleged
misrepresentations on potential riders and distinguish it from other reasons
riders might choose one mode of transportation over another.”

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Videos in conjunction with my advertising law class

 In this pandemic year, I’m experimenting with short videos as part of the pre-class materials. They generally elaborate on a point to set up class discussion. I’m sharing them because, as Tom Lehrer says, they might prove useful to some of you someday perhaps in a somewhat bizarre set of circumstances.

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Book talk: global mandatory fair use via the Berne quotation right

Tanya Aplin & Lionel Bently, Global Mandatory Fair Use,
AU Book Talk.

Based on their new book.

Art 10(1) Berne Convention: It shall be permissible
to make quotations from a published work; mention shall be made of the source
and name of author if it appears. This constitutes global, mandatory, fair use.
Berne and TRIPS both require implementation of Art. 10. Meaning and purpose of
quotation is broad. Fair because of the requirements: lawfully made available
to the public, attribution, proportionality, consistent with fair practice.
Mandatory language can be contrasted with other exemptions, which say “it shall
be a matter for legislation in the countries” of the union. Drafting history
includes vote to reject making 10(1) optional rather than mandatory.

Scope: applies to all Berne works, not just literary works,
though optional for related rights b/c Rome Convention has no mandatory
quotation right. Also does not apply to moral rights, b/c travaux suggested
moral rights are reserved, and Art 10(3) provides different requirement for
attribution of source.

What’s the meaning of “quotation”? Proposal to limit
language by purpose were rejected; it was intention to leave language open
because couldn’t agree on purposes to which it should be limited. Aplin &
Bently argue: does not have to be short, can be of the whole work, need not be
distinct, need not be used in another work; need not support or further an
argument or critique. None of these individually are necessary conditions for “quotation.”
Many fields use “quotation” to include use of a full work, no requirement of
commentary, no requirement of “quotation marks.” Example: Cézanne’s Compotier, verre
et pommes, 1878-79, shown in Maurice Denis’ Homage to Cézanne, 1900: group of
painters standing around an easel representing the Cézanne: they’re admiring Cézanne’s
work. It is (all but) the whole work; it is not distinct from the rest of the
work; and one might question whether there’s any critique or dialogue: the
dialogue seems to be “isn’t this a great painting and aren’t all those people
admiring it.”

Similarly in architecture there is quotation: Konstantin Melnikov,
Rusakov Club; quoted in James Stirling, Leicester Engineering Building.
Architecture literature doesn’t hesitate to describe this as quotation w/common
trapezoidal forms. Not distinct from the rest but still described as quotation.
Similar examples from film, e.g., Francis Bacon, Study for the Nurse from the
Battleship Potemkin.

In literature particularly, “quotation” is used routinely
w/o any requirement of critique, which contrasts with EU requirement of
dialogue with work being quoted. That’s not the ordinary meaning of quotation,
which includes inscriptions on buildings that edify visitors.

Art 10(1) requirements help constrain the exception:
lawfully made available to public, attribution, quotation doesn’t exceed that
justified by purpose, and proportionality. Made available: wider notion than
publication under Art 3(3); covers making available via compulsory license.
Sticky issues about where the work has to be made available. Suggest that the
better view is that it should be judged according to place of first making
available. Not synonymous w/right of attribution b/c requires mention of the
source and author if the latter appears thereon. As a result, should be
viewed more flexibly, allowing attributions in abbreviated form, indirect,
implicit attribution, or easily identifiable.

Proportionality: “the extent of the quotation does not
exceed that justified by the purpose.” From human rights jurisprudence:
suitability: is quotation capable of achieving purpose claimed; necessity:
whether shorter quotation would be as effective in achieving the purpose and
less restrictive of author’s rights. Counterbalances the removal of “short” before

Finally, “fair practice” requirement gives a lot of scope
for considering fairness. Little guidance in the travaux. Reject of three
possible approaches: (1) solely determined by national law, given that it’s
mandatory and normative; (2) informed by relevant state practice; (3)
synonymous with three-step test. Clearly seen as important mechanism of constraining
exception. Fair practice should assess fairness, informed by notions of
economic and moral harm (which may involve considering amount quoted as well as
nature/purpose of quotation as well as size/proportion); freedom of expression
(expressive purpose of quotation, including political v. commercial; nature of
claimant’s work); distributive justice (educational uses, translations, poorly
financed creators); and custom, to a limited extent (drawing on Kenneth Crews
and Jennifer Rothman’s cautionary work on custom). Notions of bad faith wouldn’t
fall within our meaning b/c it’s too vague: manner of obtaining work is better
dealt w/ by other areas of law; commercial motive can be dealt with by
considering economic harm; failure to ask permission is circular.

Differences from WTO’s approach to the 3 step test, which is
very formalistic. 10(1) v. 3 step: latter is narrow in scope and reach, whereas
quotation can be interpreted broadly. Normative value: 3 step in WTO panel view
is fixated on rights holders interests, while fair practice brings a plurality
of interests into play. 3 step test doesn’t require availability to public;
doesn’t take moral rights into account. 3 step is cumulative in nature, while quotation
elements have some overlap, e.g. proportionality and fair practice. Royalty-free
exception while 3-step envisages paid but permitted exemptions. 3 step test is
not the only lens through which to see exceptions: a powerful force alongside
it. Despite TRIPS art. 13: TRIPS art 9(1) says that nothing in the relevant
provisions shall derogate from existing obligations, and 10(1) is an existing
obligation. Therefore TRIPS doesn’t override 10(1), though it can make 10(2)
and 10bis subject to the 3 step test. Similar argument with WCT, as well as
agreed statement to WCT which supports the argument further.

Consequences for US fair use: assessment according to 3-step
test becomes redundant, but would need to pay attention to making available,
attribution requirements, moral rights, and different emphasis for fairness
factors. Also provides occasion to revisit quotation exceptions where they fall
short by restricting purpose (Portugal), limited to types of works (Austria,
Zimbabwe), restricted to short quotations (France, Greece, Serbia), or require
dialogue/incorporation into other works (France, Germany). CJEU decisions are
also incorrect/inconsistent by requiring intent to enter into dialogue with
work, wrongly importing identifiability/recognisability requirement. Parody
exceptions could also be seen through 10(1) and not just three step test: lets
us worry less about definitional distinctions among parody, satire, pastiche,
though that might be relevant to fair practice rather to whether exception
kicks in at all.

Publisher guidelines could also be revisited through this lens;
many publishers are incredibly narrow and risk averse in acceptable quotation.

Peter Jaszi: mentioned questions in Salinger cases about
whether being made available in archives ought to count as available to public.

Bernt Hugenholtz: Shall is not the same thing as may, and it
ought to have consequences. But note that Berne allows different treatment of
nationals. Mentioned discussion in chat about the new EU snippet right as a
related right that could override the quotation right.

Discussion: Because of the mandatory nature of the quotation
right, it should override any related right where that’s necessary to exercise
the quotation right (e.g., a broadcast treaty or special rights for press
publishers that extend beyond the author’s right).

Discussion of what doesn’t count as quotation: perhaps intermediate
copying (though may be required to avail oneself of some kinds of quotation),
reverse engineering.

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