[Cross posted from the DisCo Blog, Link] The second season of the gripping Washington drama House of Cards, starring Kevin Spacey and Robin Wright, will be available on Netflix in two weeks. But this post is about a different house of cards – the study released yesterday by the National Association of Manufacturers (NAM) on the Economic Impact of Global Software Theft on U.S. Manufacturing Competitiveness and Innovation. Although infringement of software obviously occurs throughout the world, the NAM report contains serious flaws.
Jonathan Band and Jonathan Gerafi
Notwithstanding the challenges of quantifying the impact of copyright infringement on particular companies or industry sectors, there is a useful neutral source of qualitative information on the likely impact of infringement: the reports prepared by investment advisors concerning publicly traded companies. These equity research reports make investment recommendations (e.g., buy, hold, or sell) based on the companies’ performance and the risks they face.
We have reviewed the equity research reports issued over the past 90 days for eight leading companies in copyright-intensive industries: two software firms (Microsoft and Adobe); two publishers (Pearson and Reed Elsevier); the owners of two major motion picture studios (Disney and Viacom, owner of Paramount); and the owners of two major record labels (Sony, owner of Sony Music Entertainment, and Vivendi, owner of Universal Music Group). In addition to Sony Music Entertainment, Sony owns Sony Pictures Entertainment (which in turn owns Columbia Pictures), while Vivendi also owns the Canal+ motion picture and television production and distribution company.
On March 4, 2013, the White House announced that it disagreed with the decision of the Librarian of Congress not to allow consumers to unlock their cell phones to access other mobile networks. The White House took this position in response to a “We The People” petition that gained over 114,000 signatures. With legislation to address this issue pending in Congress, the five largest mobile carriers on December 12, 2013, adopted a voluntary commitment to allow cell phone unlocking after the expiration of a service contract. While this voluntary commitment provides some benefit to consumers, a comprehensive legislative solution may be precluded by the free trade agreements to which the United States is a party. This paper examines the legal background of this matter.
[Jonathan Band and Jonathan Gerafi] In the copyright policy debate, proponents of strong copyright protection tend to be dismissive of the quality of freely available content. In response to counter-examples such as open access scholarly publications and advertising-supported business models (e.g., newspaper websites and the over-the-air television broadcasts viewed by 50 million Americans), the strong copyright proponents center their attack on amateur content. In this narrative, YouTube is for cat videos and Wikipedia is a wildly unreliable source of information.
Recent studies, however, indicate that the volunteer-written and -edited Wikipedia is no less reliable than professionally edited encyclopedias such as the Encyclopedia Britannica. Moreover, Wikipedia has far broader coverage.
[by Jonathan Band and Peter Jaszi] The Marrakesh Treaty, adopted by the World Intellectual Property Organization this past summer, provides Contracting Parties with great flexibility concerning the implementation of its obligations. Article 4(2) sets forth one way a Contracting Party may meet its obligation under Article 4(1) to permit the making and distribution of accessible format copies domestically. Likewise, Article 5(2) sets forth one way a Contracting Party may meet its obligation under Article 5(1) to permit the cross-border exchange of accessible format copies.
Jonathan Band and Jonathan Gerafi. Today we’re releasing a study on CEO compensation in copyright-intensive industries. We found that for the past six years, the CEOs of firms in copyright-intensive industries received significantly higher compensation than the CEOs of the firms in the other industries we used for comparison (construction, transportation, and mining). For example, in 2012, copyright-intensive industry CEOs received $22.9 million on average in compensation, while the CEOs in the other industries received $7.4 million. In other words, the 2012 compensation of copyright-intensive industry CEOs was more than triple the compensation of CEOs in the other industries.
[Reposted from DisCo, Link] Earlier this summer, I gave a talk in Seoul, Korea regarding how the United States actually has two copyright policies: one domestic and one foreign. These policies differ both in terms of how they are formulated, and what they say. Although these two policies have started converging, they still aren’t the same.
The talk occurred at a conference on “The Creative Economy and Intellectual Property” hosted by the Korean Institute for Intellectual Property and the Korean Intellectual Property Office. The conference reflected South Korean President Park’s initiative to promote a “creative economy” in Korea, which I suppose is an effort to distinguish Korea from the perceived “imitative economies” of other Asian countries such as China. At the conference, strong intellectual property protection was portrayed by the hosting organizations as critical to encouraging the development of a creative economy.
On June 27, 2013, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.” The Treaty is intended to promote the making and distribution of copies of books and other published materials in formats accessible to people with print disabilities. The Treaty would achieve this objective by obligating signatory countries (referred to as Contracting Parties) to adopt exceptions in their copyright laws that permit the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally.
One of the arguments used by rights holders opposed to the adoption of open-ended fair use or fair dealing provisions outside of the United States is that those jurisdictions would lack a body of case law to guide judges, and it would take decades for such a body of case law to develop. This argument overlooks the fact that those jurisdictions could look to decisions in other jurisdictions with open-ended fair use or fair dealing provisions, such as the United States and Canada, as they develop their own jurisprudence. (Courts in other countries often rely on U.S. decisions in areas where U.S. jurisprudence is very developed, such as software copyright.) Additionally, in cases that fall within the scope of traditional fair dealing, courts could consider decisions from jurisdictions with traditional fair dealing provisions. Significantly, many of the opinions in these decisions are available online.
Here are a few items of interest in the Intellectual Property Enforcement Coordinator’s Joint Strategic Plan issued yesterday.
Reference to Fair Use — p. 18
Effective enforcement is critical to providing meaningful protection of intellectual property rights, but enforcement approaches should not discourage authors from building appropriately upon the works of others. We recognize the work that agencies across the U.S. Government are doing in the area of intellectual property education, and their efforts to increase and improve this work in the digital environment. This work includes efforts at the USPTO and the U.S. Copyright Office to help the general public better understand the Constitutional purpose and value of intellectual property laws, and the scope of both protections and exceptions in such laws.
Firms in the copyright-intensive industries frequently complain that copyright infringement causes significant lost sales, lost revenues, lost profits, and lost jobs. However, as has been noted in numerous impartial studies, the actual impact of infringement on individual firms, on industry sectors, and on the U.S. economy as a whole, is extremely difficult to quantify.
In contrast, what can be quantified with relative ease is the performance of firms in the copyright-intensive industries in terms that matter to investors: revenue, profit, and most importantly, profit margin. Furthermore, the performance of firms in the copyright-intensive industries can readily be compared with the performance of firms in other industries.
[By popular demand, we have created a French version of the Fair Use/Fair Dealing Handbook] Plus de 40 pays, qui comptent plus du tiers de la population mondiale, ont inscrit des dispositions d’usage loyal ou d’utilisation équitable dans leur législation sur le droit d’auteur. Ils sont dans toutes les régions du monde et à tous les niveaux de développement. La vaste diffusion de l’usage loyal et de l’utilisation équitable fait qu’il n’existe pas de fondement pour bloquer l’adoption encore plus généralisée de ces doctrines, avec les avantages que leur flexibilité représente pour les auteurs, les éditeurs, les consommateurs, les sociétés de technologie, les bibliothèques, les musées, les établissements d’enseignement et les gouvernements.