michal shur-ofry, 2008 michal shur–ofry hebrew university of jerusalem wipo sme seminar, may 2008...
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Michal Shur-Ofry, 2008
Michal Shur–Ofry
Hebrew University of Jerusalem
WIPO SME Seminar, May 2008
Standardization in Copyright Law
Michal Shur-Ofry, 2008
Does Popularity Matter?
• The Argument: the most popular literary, dramatic, musical and artistic works should enjoy narrower copyright protection.
• Standard Works – A Broad Perspective:
– Utilitarian (Microsoft’s “Windows”, IMS’s pharmaceutical database, Sony’s Playstation) and Cultural (canonical texts - “I have a Dream”, national anthems, graphic icons)
– Official (legislation, communication protocols, road signs) and “de-facto” Standards (Mickey Mouse, Barbie, “Windows”, “Happy Birthday to You” ;
– Patterns and formats (cultural genres, television formats; databases’ structures) and “Winner-Take-All” works
Michal Shur-Ofry, 2008
• “flipping copyright on its head” (J. Keeton - Lotus v. Paperback 1990-US)
• “It is fundamentally at odds with the scheme of copyright to accord lesser rights to those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike“ (Suntrust Bank- “Gone with the Wind”-2001-US);
• The fact that Donald Duck is “known to each and every child” does not turn it into a public domain” (Geva v. Walt Disney – Israel, 1992);
• The public importance and interest in a work “should not play a substantial role” in the copyright analysis (Estate of Martin Luther King, 1999-US)
• “This cannot be the law” (Engineering Dynamics-1994-US)
The “Official Position”
Michal Shur-Ofry, 2008
Yet the Picture is More Complex..
• Standard Works are sometimes afforded narrower protection (e.g. US - Veeck, Lotus, “Survivor” litigation, “Gone With the Wind”);
• lack of explicit recognition vagueness and lack of coherency (US - Veeck ; Bender v. West );
• a result which appears just and reasonable with respect to a Standard Work can have broader and problematic implications with respect to regular works (e.g. Lotus);
• confusing judicial rhetoric ;
• Standard Works are sometimes afforded full copyright protection (Israel - Donald Duck Case) various difficulties
Michal Shur-Ofry, 2008
Lessons from Network Science:
– Standardization and “Power Law” distribution characterize complex networks;
– Strong connection between a work’s success and the structure of the social network into which the work is released;
• Popularity is Popular;
• Extreme popularity does not necessarily imply superior quality tremendous success is – to a certain extent - arbitrary ;
• Popularity cannot be predicted
Probing Into Popularity
Michal Shur-Ofry, 2008
• Very popular works acquire communicative value, and become important vehicles in social interaction (“Network Value”);
– Communication protocols, operating software, computer-game consoles;
– Cultural Works – Smiley, Barbie, Statute of Liberty, “We Are the Champions” ;
– Genres and Patterns - Databases’ selection and arrangement; television formats;
“Network Value” of Copyright Protected Standards
Michal Shur-Ofry, 2008
The Tower of Babel – “one language and few words”.(The Confusion of Tongues ,engraving by Gustav Dore, 1865, Source: Wikipedia)
Justifications for Limiting Copyright Protection of Standards
Michal Shur-Ofry, 2008
• Access
– Economic Perspective
– Social Perspective
– Democratic Perspective
• Lock-In
• Copyright’s Rationales
– Incentive Theory;
– Labor Theory;
– Personality Theory
Justifications for Limiting Copyright Protection of Standards
(Cntnd)
Michal Shur-Ofry, 2008
A Proposed Model for Narrowing Copyright Protection of Standards
Works • A Flexible Model – enabling a range of outcomes
• Factors:
a) Network Value v. Inherent Value ;
b) Complexness ;
c) Nature of Standard Work (copyright protection more easily limited with respect to utilitarian rather than cultural Standards; with respect to official rather than de facto Standards, and with respect to Standards constituting patterns and formats rather than Winner-Take-All works );
d) Nature of Use of the Standard Work
Michal Shur-Ofry, 2008
Summary
In Copyright Law – Popularity Matters.
see also –Michal Shur-Ofry "Popularity as a Factor in Copyright Law” - http://ssrn.com/abstract=1120124
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