PNC 2010 Annual ConferencePNC 2010 Annual ConferenceCity University of Hong Kong, Dec 1-3, 2010City University of Hong Kong, Dec 1-3, 2010

Intellectual Property and Free AccIntellectual Property and Free Access to Informationess to Information

Dr. Yahong LiDr. Yahong LiDepartment of LawDepartment of Law

The University of Hong KongThe University of Hong Kong

Is Is ccopyright opyright nneededeeded for creation for creation??

• Can copyright provide incentive to create?– “The Congress shall have Power ... 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, Article I, Section 8)

• Two camps: – “copyright optimists”:

• Believe in natural right theory: authors should be rewarded for whatever they create.

– “copyright pessimists”: • Believe in freedom to write and say whatever please.• Reward should only be given to provide necessary incentive.

Landes & Posner’s economic analysisLandes & Posner’s economic analysis

• High cost in initial creation and low cost in reproducing (or copying)

• The difference between the price and marginal cost of producing the works must cover the cost of expression and compensate for the risk of failure. In a world without copyright– Everyone can make copies and sell price do

wn to the marginal cost of copying none wants to produce.

– Uncertainty about demand additional disincentive to create works.

Landes & Posner’s economic analysisLandes & Posner’s economic analysis

• The arguments for eliminating copyright protection and Landes & Posner’s rebuttals – The copy is not a perfect substitute for the original– Copying may involve some original expression– Original publisher has lead time to recover his costs.– Copying can be limited by contracts.– Original author can charge for copies made.– Authors benefit substantially from publication beyond roy

alties. • “Copyright protection – the right of the copyright’s

owner to prevent others from making copies – trades off the costs of limiting access to a work against the benefits of providing incentives to create the work in the first place.”

Landes & Posner’s economic analysisLandes & Posner’s economic analysis• “Without copyright protection, authors, publishers, and copie

rs would have inefficient incentives with regard to the timing of various decisions. Publishers, to lengthen their head start, would have a disincentive to engage in prepublication advertising and even to announce publication dates in advance, and copiers would have an incentive to install excessively speedy production lines. There would be increased incentives to create faddish, ephemeral, and otherwise transitory works because the gains from being first in the market for such works would be likely to exceed the losses from absence of copyright protection. There would be a shift toward the production of works that are difficult to copy; authors would be more likely to circulate their works privately rather than widely, to lesson the risk of copying; and contractual restrictions on copying would multiply.”

Landes & Posner’s economic analysisLandes & Posner’s economic analysis

• But copyright protection exceeding certain level may be counterproductive – Borrowing is a norm in creating new works.– Too much protection will raise the costs of creati

ng new works.• Wait for the expiration of the copyright• Extensive research to disguise copying• Licensing or other transaction costs

– Each author is both an earlier author and a later author, to be borrowed and to borrow.

– It is in authors’ own interest to limit copyright protection.

It is all about balanceIt is all about balance• “Striking the correct balance between access

and incentives is the central problem in copyright law.” (Landes and Posner)

• “The protection and enforcement of IP rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

(TRIPS, Art. 7)

Fair useFair use doctrinedoctrine• Use for “criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or research”

• Factors to decide whether a use is “fair”(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or

value of the copyrighted work.(section 107 of US Copyright Act)

• Question: does “commercial” nature automatically render the use “unfair”? How about news reporting, comment, and criticism which are mostly conducted for profit?

““Fair use” industriesFair use” industries• “Industries relying on fair use”.• The industries grew faster than the rest of the

U.S. economy from 2002 to 2007 (CCIA report)– Accounted for 23% of real economic growth.– Generated revenue of $4.7 trillion in 2007.– Most significant growth: internet publishing and

broadcasting, web search portals, electronic shopping, electronic auctions and other financial investment activity.

– Employment in fair use industries: 16.9m in 2002 to 17.5m in 2007.

“We are only beginning to fully understand in the 21st century that what copyright leaves unregulated—the ‘fair use economy’—is as economically significant as what it regulates.” (CCIA report)

Challenges of Digital Tech to CopyrightChallenges of Digital Tech to Copyright

• Ease of replication• Ease of transmission and multiple use• Plasticity of digital media• Equivalence of works in digital form• Compactness of works in digital form• New search and link capabilities

(Pamela Samuelson, “Digital Media and the Law”, 1991)

LinkingLinking

• Direct link: – Shetland Times Ltd. v. Jonathan Wills and others ；

• In-direct link: – Bernstein v. J.C. Penney, Inc., – Intellectual Reserve, Inc. v. Utah Lighthouse Ministry,

Inc. The trend of court decisions are more sympathetic to

copyright owners.

• Criticisms: – Linking = footnotes or library call numbers?– blocking free access to the internet?

P2P technologyP2P technology• P2P is "A communications model in which each

party has the same capabilities and either party can initiate a communication session". (Whatis.com )

• Characteristics (Dave Winer):– User interfaces load outside of a web browser. – User computers can act as both clients and servers. – The overall system is easy to use and well integrated. – The system includes tools to support users wanting to

create content or add functionality. – The system provides connections with other users. – The system does something new or exciting. – The system supports "cross-network" protocols like SOAP

or XML-RPC. • Napster, Gnutella, Kazaa, etc.

P2P P2P cases: Westcases: West

• Napster: contributory infringement • Grokster: active inducement of infringement

– “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other  affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”--Justice David Souter

• Viacom v. YouTube: direct infringement, inducement, contributory infringement, vicarious infringement

• BMG et al v. John Doe et al in Canada– “I cannot see a real difference between a library that places a photoco

py machine in a room full of copyrighted materials and a computer user that places a personal copy on a shared directory linked to a P2P service.” (Justice von Finckenstein)

• Kazaa case in Australia: – merely providing facility not infringement, but encouraging,

promoting the use infringement• The Pirate Bay case in Sweden: infringement

P2P P2P cases: Eastcases: East

• Winny case in Japan: – software programmer: aiding and abetting, and fined.

• ezPeer case in Taiwan: ISP is neutral and not liable.• China: whether ISP is liable for infringement?

– Shanghai Busheng v. Baidu (2005)– Eleven music companies v. Alibaba (2007)– Music industry association IFPI v. Baidu (2009)

• BT case in Hong Kong– Issue: what constitutes a copy capable of distributi

on and what conduct amounts to distribution?

The United States v. ASCAPThe United States v. ASCAP• Arguments:

– Download = public performance of the musical work? Or– Download = reproduction and distribution?

• Ruling: “download of a musical work does not constitute a public performance of that work”– Not a public performance of a musical work embodied in a downloade

d sound or video file, unless the downloaded file is simultaneously perceptible and audible to the recipient during the transmission of the download.

– No public licenses are required for providing such downloading• S. 101 of the US Copyright Act:

‘To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.’– Download = “dance or act, recite, render, play”? – Can be “perceptible or audible?

• How about “streaming”?

Google Books Library ProjectGoogle Books Library Project

• The project• Copyright infringement cases

– The Authors Guild of America v. Google (2005) – Association of American Publishers v. Google (2005)– French publisher v. Google (2006)– Chinese author (Mian Mian) v. Google– Thomas Rubin (Microsoft) v. Google

• GB’s main defence is “fair use”, relying on Kelly v. Arriba Soft – 4 factor argued.– Snippets of copyrighted books = infringement or fair use?

Or “digital age equivalent of a card catalog with every word in the publication indexed”?

Legislative response: WIPO Internet TreatiesLegislative response: WIPO Internet Treaties • Defining ‘phonogram’ as “fixation of digital representation of

sounds”• Right of performers and producers of phonograms

– Right of reproduction: in “any manner or form”; storage of works in digital form in an electronic medium = reproduction

– Right of “making available to the public” of fixed performance or phonograms: “by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them”.

• The limitations and exceptions for other literary and artistic works are fully applicable in the “digital environment”– Posting a copyright work on a personal web-page = personal use? or

infringing reproduction right, distribution right or public communication right?

– “Time-shifting”: infringing or fair use?

• Technological measures and Rights Management Information

Legislative response: US DMCALegislative response: US DMCA • Protection of tech. measures and DRM info.

– Anti-circumvention provisions: criminalize• the circumvention of anti-piracy measures built into most commercial

software.• the manufacture, sale, or distribution of code-cracking devices used to

make illegal software copies.– Exceptions: Encryption research, library archive, ISPs transmit info.,

gov’ acts, protection for minors and privacy, etc.• Safe harbour for OSPs (s512(a)): Not liable

– if promptly block access to (or remove) infringing material upon “take-down” notice of copyright holder.

– if users sent a notice claiming non-infringing of the materials • Exemptions

– Granted by the Librarian of Congress– If access-control tech. has a substantial adverse effect on the ability

of people to make non-infringing use of copyrighted works.– Exemptions expire every 3 years

• Universal City Studios, Inc. v. Reimerdes, 273 F.3d 429 (2d Cir. 2001)

HK:HK: Copyright Protection in Digital Copyright Protection in Digital EnvironmentEnvironment

• November 2009 refined proposal– Right of communication: against unauthorized communic

ation to the public, in business for profit or prejudicial to RHs.

– Statutory limitation of liability regime for OSPs. • A Code of Practice will be drafted.

– Copyright exception for temporary reproduction, e.g., caching activities.

– Media shifting: one copy for personal and domestic use– Norwich Pharmacal order: same– Statutory damages: no– “graduated response”: wait and see

““Graduated ResponsesGraduated Responses””

• Countries that have adopted:– New Zealand, France and South Korea.– UK: In Jan 2009, the gov’t announced its plan to

legislate graduate response system through Digital Economy Bill.

• US’ DMCA: graduated responses?– 17 U.S.C s. 512(a): “notice and take down”– 17 U.S.C s. 512(i): “termination … the service pr

ovider’s system or network who are repeat infringers; …”

© Copyright v. Copyright v. CCopylefopylef

tt• Copyleft:– Licensing scheme allowing other people to rep

roduce, adapt or distribute a copyrighted work, and requiring that the author of a derived work only distribute such works under the same or equivalent licence.

• GNU General Public Licence:– Licence of Free Software Foundation– Freedom to use, to study, to copy and share, t

o modify and distribute the work.– Future works are bound by the same licence.

• What is CC?– “all right reserved” v. “some rights reserved”– “share, Remix, Reuse – Legally”– “free licences that signaled to the world the freedoms an author inte

nds his work to carry.” (Lessig)– CC “is helping to instigate cultural change: it is empowering rights h

olders with the knowledge and tools to decide under what terms they wish third parties to use their creations, whilst permitting users easy and user-friendly means to use content lawfully without the necessity of requesting permission.” (Naomi Korn and Charles Oppenheim)

• What problem CC tries to solve?– “offer a technology to make it easy to say what rights were reserved,

and what rights were not.” “digital rights expression” (Lessig)

• Licences– Attribution (by)– Attribution Share Alike (by-sa)– Attribution No Derivative Works (by-nd)– Attribution Non-Commercial (by-nc)– Attribution Non-Commercial Share Alike (by-nc-sa)– Attribution Non-Commercial No Derivatives (by-nc-nd)

• Licence deed and legal code• Who use CC licences?• Fair use?

– s. 2 of all licences: “CC licences do not modify or restrict fair use”.

• CCHK• Localization of the CC licences: legal issues:

– Derivative works v. adaptation– Fair use v. fair dealing– First sale– Voluntary licensing v. compulsory licensing– Moral rights– Distribution, reproduction and public performance

• Launching of the project• Development of the project

– By Aug. 2009, more than 260,000 internet works used cchk licences– Liberal studies creative archive: RTHK, Asia Weekly, Readers’ Digest– One-minute film festival – Users of HKCC: InMediaHK； Open Radio Hong Kong (ORHK) ；

MySinaBlog ； Snoblind ； CCmixter ； Magnatune; Foncept ；Deviant Art ； Flickr; A Map of Our Own: Kwun Tong Culture and Histories ； Hong Kong Stories; RTHK ； hk3teachers; philosophy; PSMSAR

IP and Data Sharing (Public Access)IP and Data Sharing (Public Access)

• Data protection: copyright and/or sui generis protection– e.g. EC Database Protection Directive 1996

• How about public-funded data or database?– “If the taxpayers funded the research on the front end, why should

they be subjected to the sky-high journal subscription prices necessary to read the research when it is published?”

– Stake of the scientific, tech. and med. journal publishing industry.• The NIH Public Access Policy 2008

– Every paper accepted for publication are required to be deposited into PubMed Central (PMC) from April 7, 2008.

• The Fair Copyright in Research Works Act (H.R. 801) 2008– Seeks to prohibit mandatory public access policies like NIH policy.

• Debates:– All NIH research grants are conditional on compliance with the

public access policy.– Does this constitute an involuntary transfer of IPRs, which is

prohibited by copyright law?

OECD Principles and Guidelines for Access to OECD Principles and Guidelines for Access to Research Data from Public Funding, 2007Research Data from Public Funding, 2007

• “Data access arrangements should consider the applicability of copyright or of other IP laws that may be relevant to publicly funded research databases.”

• Factors to consider:– “Private sector involvement in the data collection should

not, in itself, be used as a reason to restrict access to the data. Consideration should be given to measures that promote non-commercial access and use while protecting commercial interests, such as delayed or partial release of such data, or the voluntary adoption of licensing mechanisms.”

– “In those jurisdictions in which government research data and information are protected by IPRs, the holders of these rights should nevertheless facilitate access to such data particularly for public research or other public-interest purpose.”

Hong Kong’ public accessHong Kong’ public access• Heritage Museum

(http://www.heritagemuseum.gov.hk/english/main.asp)– Copyright Notice

The content available on this website, including but not limited to all text, graphics, drawing, diagrams, photographs and compilation of data or other materials are protected by copyright. The Government of the Hong Kong Special Administrative Region is the owner of all copyright works contained in this website. Any reproduction, adaptation, distribution, dissemination or making available of such copyright works to the public is strictly prohibited unless prior written authorization is obtained from Leisure & Cultural Services Department.

• Bilingual Laws Information System (http://www.legislation.gov.hk/chi/copyright.htm)– Copyright belong to HK government– Allowed for non-commercial and educational use– Other uses must get HK government special permission– Framing and linking allowed with proper attributions