Fordham International Intellectual Property Conference, Breakfast Roundtable: Creativity and the Internet - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham International Intellectual Property Conference, Breakfast Roundtable: Creativity and the Internet

Fordham International Intellectual Property Conference, Breakfast Roundtable: Creativity and the Internet

– Not a verbatim transcription —

Andrew Bridges: We hear a lot about the damages to content creators through flouting of IP rights, but these damages are not usually actually proven. To the extent that they have been proven, those damages should influence the debate, but it is often less than claimed.

Lionel Bently: Are we talking about a “sustainable” ecosystem or an “optimal” one? The 1770s was actually the high water mark where too much copyright threatened the ecosystem. On the other side, you see historical moments when there are radical shifts in how people profit. In the 1850s photography ended the high rates that artists got from engravers. This was a change in the balance, but it did not lead to an unSUSTAINABLE system. So perhaps it was not optimal, but it the system prevailed in a new form.

[8:01] Reto Hilty (from the Max Planck institute) – Legislators tend to understand what happened yesterday and THEN intervenes. Instead we should observe market behavior and adapt to that. Right now, the EU is trying to pass a copyright extension. There are about 10 academic surveys saying that the extension would be bad for the economy and that the US system is different enough that it can’t be easily analogized. On the internet we try different approches that can coexists.
1) Open approach (free content)
2) Property approach (pay content)
Task of the legislature is not to choose one of these. It should instead simply create an environment where both approaches can coexist. So a legislature can’t just give more and more rights, but must also consider where rights should be limited. The open approach can often be a benefit to the property approach.

Moderator: Would argue that the open approach also benefits from the property approach.

[8:07] Shira Perlmutter: Not all rightsholders are multinational corporations. Many are mom and pop shops, or single proprietors.
1) Need a reasonable and understandable rule framework: We have a “pretty good” rights system in most countries. Right now we have a sustainable system vs. an optimal system. “There is no perfect balance.” We will always be adjusting and recalibrating the law. Recalibration is tougher the more dramatically that thing. Unless copyright can be enforced on the internet, then even the best copyright system in the world won’t help.
Efficient multiterritory licensing structures are needed.
2) Availability of legitimate offerings. Over the last 5 years there’s been an explosion of legit offerings. Many models. A la carte downloads (itunes); Subscription services; ad supported; music access (bundled with a device/service)

How are these connected? These new models will never get off the ground unless we can effectively enforce rights in some way.

Tilman Luder: Bifurcations between entertainment and science/research sector. EU copyright paradigm is based on protected against freeriding. In the US there is a countervailing concern of encouraging creativity etc. In the science/research sector, sustainability is more important, since we don’t want to lock up information. But normal exploitation of a movie is different from normal exploitation of a scientific paper (three step test is different in different contexts).

[8:17] Jerome Reichman: We do want to protect Europe’s comparative advantage in knowledge based economic activities. But we need to think about the INPUTS as well. We need to “open the locks” or we risk giving away comparative advantage in science to other countries.
EU perspective – maybe the old US private use doctrine should be adapted for Europe to create a non commercial use market. Bounded by contractural limitations defending the interests of professional content creators.

Use liability rules to compensate professional content creators when their works are infringed. Better than a property rule in that you more often actually get money for your IP and you don’t stop creative amateur use.

[8:24] Moderator – You are global copyright czar for one day. What would you do?
Andrew Bridges: End rule utilitarianism and go to act utilitarianism. “We can’t do that because of the Bern convention!”. Either something is a good law or not. Shouldn’t matter what prior treaties.

Chris Reid