Copyright and Trademark Laws

The European Commission announced last Wendesday that it has decided to open formal proceedings against CISAC (the “International Confederation of Societies of Authors and Composers”) and the individual national collecting societies that are members of CISAC and has sent them a Statement of Objections (SO).

The Commission doesn't question the practice of collective administration of performing rights. The SO concerns only certain relatively new forms of copyright exploitation: internet, satellite transmission and cable retransmission of music.

The LA Times yesterday published the following article:  How Piracy Opens Doors for Windows.  The article explains why some software publishers complain so much about piracy, but do very little to prevent it. Basically, it makes the same argument that I made in a paper published last year in the UTLJ.  What I especially liked (in addition to being quoted...) is a remark made by Bill Gates, which in an unguarded moment confrimed my point.  Here's what Gates said in 1998 to an audience in the University of Washington: 

Although about 3 million computers get sold every year in China, people don't pay for the software. Someday they will, though... And as long as they're going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.

I wish I had this qoute for my paper.  Thanks Bill.

I recently published an op-ed in the National Post called "Intellectual property laws need a rewrite."  It drew an unusual amount of interest, so I thought I would post it here (albeit one might have to discount the level of interest for the fact that the article discusses the Da Vinci Code).  Comments welcome.

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Writers and publishers have a problem; the very law that serves their business obstructs their business.  And no one knows what best to do about it.

All new works of authorship borrow from previous ones, taking characters, plot devices, abstract ideas or even quotations.  But common though such borrowings are, copyright law makes it very hard to know exactly which ones are without risk of legal liability.  Dan Brown, author of the popular Da Vinci Code, was accused of taking too much of another work's ideas and plot. He got away with it - after a very expensive court battle made necessary by the ambiguous law.  By the time a court renders a decision in a given case, far too much money and productive time have already been spent on it.  And so, authors and publishers make very cautious decisions or even try to obscure their sources.

Richard Owens aptly describes how the vagueness of the boundary between lawful borrowing and unlawful copying makes it difficult for creators who build upon others’ previous works. He urges us to develop intellectual property laws with clearer rules defining such boundaries.

While I agree with the motivation for the plea, I’m not sure that if the goal is attainable. Not, of course, that we couldn’t have clear rules. We could, for example, rule that any borrowing of any idea or any expression requires permission. This would be a clear rule, but one that would plague creativity with transaction costs and surely stifle it. We could have no copyright at all—again a clear rule—but assuming that copyright is important, not one that will do much good either. So I’m not sure if we can avoid Learned Hand’s challenge of fixing a boundary without ever knowing precisely where.