Framing the Public Interest Agenda in Copyright

Global Congress on IP and the Public Interest, Washington DC

August 25, 2011

Prof. P. Bernt Hugenholtz

Reasons for Copyright Reform

Legitimacy Decreasing costs of production and distribution Restore balance International ratcheting up Territoriality ‘Upwards harmonization’ Fundamental freedoms Role

of new intermediaries Term extension Enforcement Technological change Flexibility User-generated content Interoperability Unfair contracts Reward

authors Access to cultural heritage Because Larry Lessig Says So Digital

lock-up Lobbying Overprotection Propertization Social media

Complexity Search enginesVisually impaired Orphan

works Parody Private copying Development File sharing Distance learning

Transient copying Fair use Database right DRM

Copyright in the Constitution

“[…] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

United States Constitution, Art. I, S. 8, Clause 8

Copyright in the Constitution

“The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.”

Constitution of the Republic of the Philippines (1987), Chapter XIV, S. 13

Copyright in the Constitution

“Intellectual property shall be protected.”

Charter of Fundamental Rights of the European Union (2000), art. 17(2)

International Copyright Law

• Berne Convention: …• WIPO Copyright Treaty (Preamble):

– Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention,

• TRIPs (Preamble):– Recognizing the underlying public policy objectives of

national systems for the protection of intellectual property, including developmental and technological objectives;

Humans Rights Law

1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

Int. Covenant on Economic, Social and Cultural Rights, Art. 15

The Public Interest Rationales of Copyright Law

• Promote cultural production and participation• Promote freedom of expression and communication• Promote innovation and competition• Promote education and science

Building a Public Interest Agenda (1)

• Promote cultural production and participation

– Cultural heritage, orphan works– Private copying, format shifting, VIPs– Unfair authors' contracts

Building a Public Interest Agenda (2)

• Promote freedom of expression and communication:

– User-generated content/transformative useS– Social media: freedom to share and refer– Blogging: news reporting freedom

Building a Public Interest Agenda (3)

• Promote innovation and competition:

– Safe harbours for ISP's, platforms, search engines

– Caching, browsing, other transient copying– Interoperability

Building a Public Interest Agenda (4)

• Promote education and science:

– Distance learning, digital classroom– Data mining– Copying/sharing for scholarly use– Development issues

Reform is already happening on the ground

• Open source, open access• Best practices (PIJIP/Center for Social Media on

Fair Use)• Industry codes, ‘self regulation’ (e.g. Copyright

Alert System)• Collective rights management, Google Books

Settlement• Scholars: CPP, IPT, Wittem

25-08-11

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Copyright Reform: Substantive Agenda

• Subject matter– Raise threshold level of originality/creativity– Introduce formalities?

• Restrict scope of reproduction right• Reduce term of protection• Broaden limitations and exceptions

– Need for flexibility– Non-overridable exceptions