WASHINGTON – Today, over seventy international copyright law experts called for NAFTA and other trade negotiators to support a set of balanced copyright principles. The experts urge trade negotiators to support policies like fair use, safe harbor provisions, and other exceptions and limitations that permit and encourage access to knowledge, flourishing creativity, and innovation. Signatories include preeminent intellectual property professors and experts from law schools, think tanks, and public interest organizations in the U.S., Canada, and Mexico, as well as Argentina, Australia, China, Ireland, and Switzerland.
Introduction: Copyright law is the subject of increasingly contested debates around the world. Much of this reform is being driven by a perceived need to adapt outdated copyright laws to the digital age. Copyright owners often advocate that these reforms should center on expanding the length, scope, and enforceability of exclusive rights. However, there is a growing recognition that the digital environment warrants expansions in so-called user rights – rights to use copyrighted material without the permission of owners to facilitate a range of modern activities from social media to Internet search.
Few empirical studies analyze the impact of different ways to expand user rights for the digital environment. Should we designate specific digital activities – like indexing, or linking or forwarding an email – that are lawful? Alternatively, should we adopt broader principles of fairness that can be applied to new uses over time? Some theories suggest the second option – adoption of user rights that are more open to unforeseen purposes subject to a flexible test of the fairness – is better for enabling innovation and many modern creative practices. But the existing empirical literature on copyright says little about whether more open and flexible or closed and narrow user rights are in fact better for the core purposes of copyright such as promoting innovation and creativity.
One reason for the lack of empirical research on the impact of more open and flexible user rights has been the absence of a tool to measure changes in this variable of the law. To promote additional and enhanced research into the impact of user rights, we created the User Rights Database. The User Rights Database is an open access repository of coded data showing how and when copyright user rights have changed over time in a representative sample of different countries. The twenty-one countries in our database thus far (with more coming), are split evenly between developing and wealthy countries and are representative of every major region and copyright legal family. The data documents changes in user right openness and flexibility in each country over a period stretching from 1970 to 2016.
We have begun to use the User Rights Database in empirical research projects. The first insight we draw is that there is a general trend toward more open user rights over time in all of the countries. Civil as well as common law systems, for example, have ample experience with exceptions that are openly applicable to any work, for any use, and by any user subject to a flexible “fair use” or “fair practice” balancing test. It is not true that only common law countries can or do implement open and flexible exceptions. That is not to say all countries are the same. More exceptions that are open are unequally distributed. Developing countries in our sample are now at the level of openness that existed in the wealthy countries about thirty years ago.
Another insight from our data is that very few countries have sufficient user rights most needed to support creativity and innovation in the digital economy. These crucial digital exceptions include those permitting transformative and non-expressive uses, including for text- and data-mining. Countries with an open general exception, such as the U.S. fair use right, have been quickest to authorize these new uses.
We used the database in a series of econometric tests. Our data supports the existing theoretical literature that suggests that more open user rights promote innovation and creativity. Namely, we find:
- More open user rights environments are associated with higher firm revenues in information industries, including software, and computer systems design.
- More open user rights environments are not associated with harm to industries known to rely upon copyright protection, such as publishing and entertainment.
- Researchers in countries with more open user rights environments produce more scholarly output and more high-quality output.
The rest of this paper describes our hypotheses, methodologies and results in more detail. Section II surveys the existing theoretical literature that suggests that more open user rights promote innovation and creativity. Section III describes the methodologies we used to construct the User Rights Database. Section IV reports the findings of our econometric analysis.
Abstract: In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the U.S. fair use model. Thus far, Israel, Liberia, Malaysia, Singapore, South Korea, Sri Lanka, the Philippines and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption.
Written for a special issue on “Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?”, this article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model.
William Cross, Director, Copyright and Digital Scholarship Center, NCSU Libraries
Association of Research Libraries Issue Brief (CC-BY)
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Government Information at Risk
Access to government information is a fundamental principle in a democratic society. Particularly in the digital environment, government information is a driver for economic and social progress as well as a predicate for an informed citizenry. From 2009 through 2016, open government was a hallmark of the Obama administration, which observed that, “openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth.”
[Originally published in South Africa’s Business Day, Link] Over the past two weeks, I have been participating in a series of events and workshops explaining copyright “fair use” rights to South African stakeholders and officials. This week, Parliament has been hearing about fair use while it considers the Copyright Amendment Bill, part of which includes the introduction of a fair use right.
Rights management organisations, which collect royalties from schools, venues and other organisations that use copyrighted works, are up in arms. A collection of these organisations and foreign media companies such as Sony Pictures, calling itself the Copyright Alliance, has claimed that fair use means:
PIJIP has created a table of comments submitted to the South African Parliament’s Portfolio Committee on Trade and Industry regarding the Copyright Amendment Bill. It was last updated on July 19, 2017.
Please send additional comments to firstname.lastname@example.org, and I will them to the table
The AU Program on Information Justice and Intellectual Property has been working over several years on empirical research pertaining to the impact of balanced copyright systems on trade and economic development. One key element of an adequately balanced copyright system is having sufficiently “open” limitations and exceptions for the digital environment. We refer to “open” limitations and exceptions for the digital environment as those that are open to the use of any kind of work, by any kind of user and for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author. Such openness is the hallmark of the U.S. fair use clause. These “open” aspects are crucial because the digital environment creates new opportunities to use different kinds of works, by different users and for different purposes than were envisioned in most copyright statutes. An open statute is a flexible one – and flexibility is needed to accommodate and encourage innovation in the digital environment.
All over the world, copyright regimes have figured out how to write exceptions that don’t hurt the market for creators’ work but permit new work to be made without strangling costs. But Australia has one of the most rigid copyright regimes in the world. What happens here to creators who have to work under those conditions?
A team at the Queensland University of Technology, for which I am principal investigator, has been tackling that question. I’ve been talking to Australian creators – writers, filmmakers, musicians, visual artists, curators and more – and conducting a survey to find out how they deal with Australia’s copyright rigidities.
We are only asking questions about creators’ own practices, and we are still collecting data. But we’re already seeing patterns. And so far they are concerning for Australian national creativity, culture and identity.
Computer & Communications Industry Association, Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use (CCIA: 2017), available online at ccianet.org.
Executive Summary: In 2007, CCIA released a report prepared by Capital Trade, Inc. that was the first comprehensive study quantifying the U.S. economic contribution of industries relying on fair use and related legal provisions. The current report is the third update of the size and performance of the fair use economy. This study finds that in 2014, value added by fair use industries was 16 percent of the U.S. economy, employing 1 in 8 U.S. workers, and contributing $2.8 trillion to U.S. GDP. Meanwhile, the combined value added by industries that are the most reliant on fair use and other limitations and exceptions to copyright protections has more than tripled in size over 2002. From 2012 to 2014, the real output of these primary core industries accounted for 6.7 percent of real GDP growth, six times their current weight in the U.S. economy.
South Africa has released the 2017 Copyright Amendment Bill for public comment. The Portfolio Committee on Trade and Industry will accept written comments from the public through June 19, and will hold public hearings on the legislation June 27-29.
Six legal scholars from the Global Expert network on Copyright User Rights have sent an open letter to Parliamentarians to applaud the government for the Bill’s strengthening of user rights, and to make two suggestions.
Abstract: This study tracks changes in behavior and attitude among visual arts professionals after the development of a code of best practices in the copyright doctrine of fair use. A survey of 2,400 professionals fielded only months after its publication demonstrated broad awareness of the code, informing practice and inspiring efforts to spread awareness. The greatest degree of awareness and change was among editors, several of whose publications altered their copyright policies.
[ReCreate press release, Link (CC-BY)] As the Trump Administration notifies Congress of its intent to negotiate changes to NAFTA, the Re:Create Coalition today issued a statement urging the Office of the United States Trade Representative to include language on copyright limitations and exceptions, including fair use, if copyright law is part of the negotiations: