Author: Jonathan Band

CEO Compensation in the Copyright-Intensive Industries

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. During the entire six-year period, copyright-intensive industry CEO compensation on average was 2.8 times higher than CEO compensation in the other industries. Moreover, between 2007 and 2012, CEO compensation in the copyright-intensive firms grew by 45%, while it increased by only 8% in the other industries. Additionally, CEO compensation as a percentage of revenue was more than twice as high in the copyright-intensive industries as in the other industries. CEO compensation as a percentage of revenue in the publishing industry was four times higher than in the transportation industry, almost three times higher than the non-copyright average, and twice as high as in the motion picture industry. In the copyright policy debates, the labor unions representing workers in copyright-intensive firms have joined with management in demanding greater intellectual property protection. Indeed,...

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The Domestic and Foreign Copyright Policies for Promoting the Creative Economy

[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. I was asked to talk about the U.S. government policy for promoting a creative economy. I explained that the U.S. actually has distinct domestic and foreign copyright policies, and explored how they have differed, both in terms of process (how they are formulated) and substance. My conclusion was that the domestic copyright policy promoted a creative economy in the United States, while the foreign copyright policy did not do so abroad. Process In terms of process, domestic copyright policy is the result of the interplay among the...

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Library Copyright Alliance User Guide to the Marrakesh Treaty

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. This memorandum explains the Treaty’s provisions. The memorandum concludes that Title 17 of the United States Code complies with the Treaty’s requirements, and thus that the United States could sign and ratify the Treaty without making any changes to domestic law. Overview The copyright law in many countries presents a barrier to the making and distribution of copies of works in formats accessible to the print disabled. The making of a copy in an accessible format such as braille, without the authorization of the rights-holder, could constitute an infringement of the reproduction right. The unauthorized distribution of the accessible format copies could constitute an infringement of the distribution or making available to the public right. Similarly, the export or import of...

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Global Fair Use and Fair Dealing Decisions Available Online

Jonathan Band and Deborah Goldman 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. The following tables indicate by jurisdiction the number of opinions discussing fair use or fair dealing that are available through online databases as of July 1, 2013.  (Click here for a printable PDF.) OPEN-ENDED FAIR USE AND FAIR DEALING Country Database Number of Cases United States LexisNexis 1541 WestLaw 1666 Canada LexisNexis 258 WestLaw 117 HeinOnline, Canada Supreme Court Reports 136 Hong Kong www.judiciary.gov.hk/en/legal_ref/judgments.htm 7 WestLaw 10 Philippines www.sc.judiciary.gov.ph 5 Israel LexisNexis 1   TRADITIONAL FAIR DEALING Country Database Number...

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Items of Interest from the U.S. Intellectual Property Enforcement Coordinator’s 2013 Joint Strategic Plan

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. The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists, songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair use is a core principle of American copyright law. The Supreme Court has repeatedly underscored fair use provisions in the Copyright Act as a key means of protecting free speech, and many courts across the land have upheld the application of fair use as an affirmative defense to infringement, in a wide variety of circumstances. In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible uses, and thereby encourage the production of a...

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New Study: The Profitability of Copyright-Intensive Industries

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. In this study, we have examined the performance over the past ten years of five leading firms in three copyright-intensive industries: motion pictures, publishing, and software. We then examined the performance of five leading firms in three other industries: construction, transportation, and mining. Finally, we compared the profitability of the firms in these six industries. We found that the firms in the copyright-intensive industries were significantly more profitable than the firms in the other industries in every period examined. Moreover, in this ten-year period, the copyright-intensive industries’ profit margins on average grew by 3.98%, while the other industries’ profit margins on average decreased by 0.75%. The high level of profitability of the copyright-intensive industries suggests that the copyright system serves these industries effectively,...

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A la demande générale, nous avons traduit en français le manuel sur l’usage loyal et l’utilisation équitable

[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. C’est particulièrement le cas lorsqu’on songe que la législation sur le droit d’auteur dans de nombreux pays de droit civil permet aujourd’hui à leurs tribunaux d’appliquer une exception spécifique dans un cas spécifique seulement s’il satisfait aux deuxième et troisième étapes du critère à trois étapes de Berne. Ainsi, le tribunal ne peut permettre l’utilisation que s’il établit qu’elle n’entre pas en conflit avec une exploitation normale de l’œuvre et ne constitue pas une atteinte déraisonnable aux intérêts légitimes du titulaire des droits. Ces étapes sont au moins aussi abstraites et difficiles à appliquer que l’usage loyal et l’utilisation équitable. Ce manuel renferme les lois sur l’usage loyal et l’utilisation équitable que nous avons pu trouver. Veuillez communiquer...

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Foreign Ownership Of Firms in IP-Intensive Industries

Today I’m releasing a paper on foreign ownership of firms in IP intensive industries.  Here is a summary of the paper: For decades, U.S. domestic and foreign IP policy has been predicated on the assumption that U.S. firms dominated both domestic and foreign markets for IP products. In an effort to evaluate the standing of U.S. firms in IP intensive industries, this paper identifies the “nationality” of the leading firms in several important IP industries. The paper finds that for many industries, this assumption of U.S. dominance is no longer correct.  This suggests that at times, IP policies adopted by Congress and the Executive Branch may benefit foreign corporations at the expense of U.S. consumers. Here are some of the paper’s key findings: Four of the “Big Six” publishers, the largest English language trade publishers, are foreign-owned. More than 80 percent of the global revenue of the Big Six is generated by these foreign-owned companies.  These foreign-owned companies published more than two thirds of the trade books in the U.S. Four of the five largest STM (science, technical and medical)/Professional publishers are foreign-owned.  More than 90 percent of the revenue of the five largest STM/Professional publishers was generated by foreign-owned firms. Only seven of the world’s 50 largest publishers of all categories are U.S.-owned. The book publishing industry in Europe has approximately twice as many employees as in the...

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SOPA and Its Implications For TPP

The controversy in the United States over the Stop Online Piracy Act (SOPA) has profound implications for the Trans Pacific Partnership (TPP) agreement. The SOPA debate underscores the importance of striking the proper balance in intellectual property laws to promote creativity and innovation. It demonstrates that over-protection can stifle free expression and the effective operation of the Internet as a medium of communication and commerce not only within a jurisdiction, but also extraterritorially. Additionally, the debate reveals the ability of the Internet community to mobilize quickly to defeat policies that it believes threaten its existence. TPP negotiators should understand the SOPA experience to avoid repeating its mistakes. [Click here to download this posting as a PDF] The SOPA Controversy SOPA in the U.S. House of Representatives, and its companion legislation in the U.S. Senate, the PROTECT IP Act or PIPA, attempt to address the perceived problem of non-U.S. websites engaged in infringing activity. Because these so-called “rogue” websites have domain names registered outside of the U.S. (e.g., “.uk” rather than “.com”) and are hosted on servers outside of the United States, they are beyond the jurisdiction of U.S. courts and the existing enforcement mechanisms under U.S. law. (SOPA and PIPA are part of a broader enforcement strategy, including the federal government’s seizure of hundreds of domain names registered in the United States and criminal prosecutions against the operators of...

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