michal shur-ofry, 2008 michal shur–ofry hebrew university of jerusalem wipo sme seminar, may 2008...

Michal Shur-Ofry, 2008

Michal Shur–Ofry

Hebrew University of Jerusalem

WIPO SME Seminar, May 2008

Standardization in Copyright Law


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


• “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”


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


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


• 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


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


• 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)


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


Summary

In Copyright Law – Popularity Matters.

see also –Michal Shur-Ofry "Popularity as a Factor in Copyright Law” - http://ssrn.com/abstract=1120124

michal shur-ofry, 2008 michal shur–ofry hebrew university of jerusalem wipo sme seminar, may 2008...

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