I. |
Introduction: Intellectual Property
in National Law............... |
188 |
II. |
The United States and European
Intellectual Property Regimes..... |
191 |
|
A. The U.S. Regime.................................................. |
192 |
|
1. Public Domain.................................................. |
192 |
|
2. Fair Use........................................................ |
193 |
|
a. Epistemological and
Methodological Considerations: Is Fair Use Possible? ........................................................................................................ |
195 |
|
b. An Economic Analysis of Copyright
and Fair Use: Is Fair Use Desirable?......................................................................................................... |
199 |
|
i. Justification of the Fair Use
Doctrine via Economic Analysis of Law......................................................................................................... |
199 |
|
ii. The Chicago School's Efficient
Capital Market Hypothesis........................................................................................................... |
202 |
|
iii. Customary Law and Public Domain
of Information Published Via Internet........................................................................................................ |
203 |
|
iv. Proposed Standard: Rebuttable
Presumption of Public Domain Over Information Published
on the Internet.................................................................................................. |
204 |
|
B. European Regime.................................................. |
206 |
|
1. Points of Convergence in
Anglo-American Law vis-à-vis the Continent.......................................................................................................... |
206 |
|
a. Historical Origins.......................................... |
206 |
|
b. The Idea/Expression Dichotomy.............................. |
206 |
|
2. Points of Divergence in
Anglo-American IP Law vis-à-vis the Continent......................................................................................................... |
208 |
III. |
The International Intellectual
Property Regime..................... |
210 |
|
A. Berne............................................................. |
211 |
|
B. TRIPs............................................................. |
214 |
|
1. TRIPs' Stated Telos........................................... |
214 |
|
2. TRIPs' de facto Telos......................................... |
215 |
|
3. TRIPs' Methods of Enforcement................................ |
216 |
|
C. Anarchic Polyphony............................................... |
216 |
IV. |
Areas of Conflict in International IP
Law........................... |
217 |
|
A. TRIPs............................................................. |
217 |
|
1. Reverse Engineering........................................... |
218 |
|
2. Software Patents............................................... |
220 |
|
3. Plant and Genetic Data ....................................... |
221 |
|
4. Place Names.................................................... |
221 |
|
B. Fair Use.......................................................... |
222 |
V. |
Conclusion: Can Fair Use and TRIPs Be
Harmonized?.................. |
224 |
*188
I. Introduction: Intellectual Property in
National Law
Transformations in technology have radically
reduced the cost of production and dissemination of information.
The explosion of information technologies exemplified by photocopy
machines, cassette recorders, computers, fax machines, and Compact
Disc Read-Only Memory (CD-ROM) burners present serious challenges
to copyright law
1 both nationally and
internationally.
2 These transformations
have created a global market in information. The international
system has accordingly created legal structures to govern that
market, notably the World Intellectual Property Organization
(WIPO) and Trade-Related Aspects of Intellectual Property Rights
(TRIPs). However, those structures are not always adequate to
govern the new technological realities because they often depend
on legal concepts which predate the era of instant world wide
information, specifically the Berne system of Conventions. The
“new” structures thus merely incorporate the existing national
standards. These facts create the potential for abuse by the
creation of “double standards.”
TRIPs' reliance on national standards cannot
create a unitary intellectual property (IP) regime because the
common law and civil law systems are based on different rationales
and presumptions which lead to legal plurality--and conflict.
*189 Differing systemic rationales of IP in the
United States (U.S.) and the European Union (E.U.) are not
necessarily contradictory and could be reconciled. However, TRIPs'
stated objectives of open trade and universal IP standards are
also hindered by economic nationalism which results from
competition and leads to the misuse of IP law as a form of veiled
protectionism. Therefore, despite the practical reality of
technological convergence--the blurring of boundaries between
telecommunications, multimedia, cinema, television and internet
and the theoretical possibility of a convergence of common law and
civil law--trade tension and legal conflict are inevitable.
The fact that trade law is abused to achieve
protectionist ends, whether expressed legally as a fraud on the
law or abus de droit, stands in fundamental contradiction to the
free trade rationale on which international IP law is founded.
Further, the protectionism that contradiction presents is bad for
the aggregate global economy. As has been shown, open trade
benefits society as a whole but is also detrimental to certain
elements of society, notably inefficient, uncompetitive, and
protected businesses. This is illustrated in the table below:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Inefficient domestic industries do better under
closed trade (“protectionism”), though society as a whole does
better under open trade (“free trade”). Hence, open trade, while
socially beneficial, is resisted. Yet, overt protectionism is
theoretically indefensible, and so it is often masked either by
“cultural,” “environmental,” or even “developmental” claims. While
“environmental” and “ecological” concerns are legitimate in their
own right, they are generally used as facades for trade
restrictions in the name of sub-optimal protectionism--and reduced
social wealth. From a perspective of global wealth, the optimal
trading system would be a generalized regime of free trade with
specific exemptions to encourage third world economic development.
For these reasons, the divergent and
asymmetrical national rules in IP law present another instance of
veiled protectionism. IP law is one more tool for consolidating
U.S. global hegemony and the dominance of U.S. businesses in the
fields of software, biotechnology, and cinema through the creation
of a global trading system, open in appearance, yet based on
closed proprietary information. To achieve this end, the United
States has adopted a two-pronged strategy of information: freedom
in the United States (the defensive prong of the strategy) and
strong proprietary information overseas (the offensive prong of
U.S. strategy). This two-pronged strategy tends to favor large
companies generally,
*190 particularly U.S. companies, and disfavors their
competitors. This two-pronged strategy goes too far, however, and
will call into question the very hegemony that the United States
seeks to consolidate.
Nevertheless, this strategic error of
“overreach” can be corrected by a simple tactical retreat: the
United States merely would have to abandon its domestic defense of
information freedom exemplified by the fair use doctrine. This
tactical retreat would mean the end of the United States as a
“data haven,” and the failure of the “defensive” domestic/consumer
arm of the United States' IP strategy. Yet, that tactical defeat
would preserve a U.S. strategic victory: even if higher standards
of IP protection are imposed within “data havens” such as America
(or China) via TRIPs, U.S. companies will still maintain their
dominance because of the stricter global IP regime created by
TRIPs. The U.S. strategy to consolidate its hegemony via open
trade will only fail if domestic populist forces in the United
States force the U.S. government to reject the WTO-TRIPs--for
example, following a condemnation of the double information
standard. Such an outcome would of course indicate a strategic
defeat of U.S. efforts to consolidate a global free trade regime
and even the collapse of the WTO--and is thus entirely unlikely.
Therefore the U.S. strategy really cannot lose: even if the United
States is forced to reject the “defensive” free information arm of
its strategy (the U.S. as a data haven), more restrictive IP laws
abroad will remain in force guaranteeing the dominance of the
United States' IP industries. The costs of tactical retreat would
thus be borne not by U.S. transnational companies, but by
consumers.
This raises a threefold criticism of TRIPs:
First, and most problematic, is the fact that TRIPs will lead to
proprietary data monopolies at the expense of consumers. Second,
TRIPs may help to establish a double standard of information
protection which favors U.S. consumers generally, and large U.S.
corporations particularly. Third, TRIPs will confirm and maintain
U.S. dominance in IP markets. This last and admittedly weakest
critique is contingent on the second, and depends on a price model
of monopolistic firms which is outside of the scope of this paper.
This author hypothesizes that entry costs and
economies of scale indicate that the natural tendency of capital
is to tend towards monopoly. This author also adopts as a
hypothesis that monopoly pricing is determined by the threat of
competition and the desire to have the highest price possible:
monopolies price their product in direct consequence of
competition or lack thereof. In other words, a monopoly or near
monopoly will sell at the highest price possible which will not
incite competition, but in the event of competition will reduce
price as needed to eliminate competition. Through price
manipulation and legal double standards, the U.S. dominance of IP
fields in culture and software and biotechnology will be able to
eliminate competition.
Still, these hypotheses do not lead to the
self-evident conclusion that monopoly is inefficient. Monopolies,
according to this hypothesis, are not inevitably inefficient with
respect to consumers, but can be contingently inefficient.
Monopolies will only sell at prices favorable to consumers in the
*191 event of the threat of competition. Without at
least the threat of competition, monopolies will behave as
rational economic actors and maximize profits by increasing
prices. This is one of the many reasons to oppose the monopoly
right granted by the state, which is the essence of every IP
claim. The necessity of competition and fairness argue against
double standards, and in favor of a unitary IP standard based on
open information.
To be sure, there is an easy method to defuse
this unfair system which imposes monopolistic proprietary
information
3
and double standards at the expense of the consumer. As noted
previously, U.S. and continental European perspectives on
intellectual property law are not necessarily nor inevitably in
conflict. By expanding common law conceptions of intellectual
property to include the moral rights of authors it would be
possible to transpose the common law doctrine of “fair use” into
the international arena. Such a transposition would better serve
the interests of consumers, and at the same time eliminate unfair
double standards in IP law. A global fair use regime based on a
reinterpretation of the fairness doctrine to include authors'
moral rights would be seen as more legitimate, and thus would be
more likely to successfully consolidate the liberal global trading
regime. In contrast, the current U.S. strategy seeks to impose a
double standard and will necessarily be met with resistance strong
enough to undermine systemic legitimacy. Thus, not only questions
of justice, but also questions of realpolitik lead to the
conclusion that the better way to forward international IP law is
to reinterpret the fairness regime to account for author's droit
moral, and to transpose the reinterpreted regime to the
international arena via TRIPs.
II. The United States and European Intellectual Property
Regimes
Although there is some commonality between
Anglo-American common law and continental civil law conceptions of
intellectual property, there are also a number of striking
divergences. Differences occur not only at the level of positive
law (object and duration of protection) but also in theory.
However, these theoretical divergences are not irreconcilable. On
the other hand, there are also many common points between the two
legal systems. These common points form the basis of integration
of the global intellectual property regime as implemented under
TRIPs. Certainly, comparing and contrasting the common law and
civil law IP systems will explicate the tensions in the global
intellectual property regime as manifested in TRIPs and the WTO,
their causes, and their possible solutions.
Historically, the common law provided limited
protection for authors. Copyright was a monopoly, limited in time,
granted to protect authors in the exclusive exploitation of their
creative works. Thus, at common law, the general rule was that
there was no legal protection, with the exception of works which
were both published and listed a copyright notice.
4
Even then the work had to be creative and original, and the
duration of the copyright was limited to fourteen years.
5
By statute in the United States, this
presumption is reversed.
6 There is a presumption of
protection. Notice of copyright and publication are no longer
required.
7
Furthermore, the duration of protection has been extended in time
to the life of the author plus seventy years.
8
1. Public Domain
Although the general rule today, unlike the
past, is that creative writings are automatically protected under
copyright without the requirement of copyright notice or filing,
there are, of course, exceptions to the general rule of
protection. First, and most importantly, is information in “the
public domain.” When a copyright on a work expires, the work is
said to enter into public domain. Works in the public domain are
not subject to copyright. U.S. government publications are
considered in the public domain, and as such, can be freely
reproduced without cost or permission by any person.
9
Although copyright of derivative works of works in the public
domain is permitted, the underlying source remains in the public
domain.
While the public domain seems clear as a
concept, there are some ambiguities. Often this is due to
under-litigation--because the public domain is “free” there are no
battles over it. So, the question of whether public domain is
defined as all that which is not subject to copyright (that is a
definition in the negative),
10 or is an emanation of
the common law conception of “res nullius”
11
*193 and ultimately Roman law appears to be
unanswered.
12 Ambiguity also appears
in the court's case law doctrine (later incorporated into the
copyright statute) of public domain in that the term has two
different significations: “public domain” can signify either
public lands, or works which are owned by no one and which may be
used by anyone.
13
Under-litigation also leaves unanswered the
question whether an author can donate his work to the public
domain. One theory argues that works can be “donated” to the
public--and donation in the common law is irrevocable. Another
theory argues that the copyright is in fact maintained, but that
the author has given an unlimited license to the work. This
question is relevant for derivative works because a public domain
donator might later wish to revoke that donation to prevent
derivative works. Under the former theory, revocation of the
donation would be impossible; and under the latter theory, it
might be impossible if, for example, the license was at the will
of the licensor.
2. Fair Use
Another major exception to the presumption of
copyright is the “fair use” doctrine.
14 The doctrine of fair
use is not a recent development in U.S. law. In fact, the fair use
doctrine in the United States was first elucidated by Justice
Story and definitively traces its roots to British common law.
15
Fair use, like copyright, is predicated upon an economic
rationale:
16 fair use exists to
remedy market failure;
17 and new technologies
make mass copying inexpensive and represent a potential market
failure.
18
*194 The fair use doctrine can be expressed most
simply in terms of an economic equilibrium analysis: when the
benefit to society of the breach of the authors' monopoly
outweighs the benefit of the author's monopoly, the information
may be used despite the fact that it would otherwise exclusively
belong to the author.
19 This fact normatively
describes the position of law and economics and empirically tends
to demonstrate that position--that law is developed as a function
of its tendency to maximize social wealth.
20
In other words, the fair use doctrine is both
more necessary and more contentious in the contemporary global
market than it was in the past when markets were still national or
regional and copying was costly. This is because the internet is
driving down the cost of copying information, and the cost of
diffusing such information is quickly approaching zero. Therefore,
information can now be diffused instantly and globally at almost
no cost. This is, in fact, common practice. With the internet,
images or sounds are downloaded and uploaded, sometimes edited,
21
sometimes commented, and sometimes linked back to their source or
to other works. Are such derived works or links permissible?
According to fair use, possibly. Internet authors who “borrow”
images without permission, but then “link” the image back to the
source would be more likely to be considered as “fair users” as
would editors or commentators about images. Perhaps citing or
advertising that source can weigh in favor of finding a use
“fair.”
22
The fundamental principle, that fair use
consists of a balancing of economic interests, is expressed by the
court more precisely. Case law has developed and defined the four
factors which determine whether a use is fair as follows:
Factor
#1: Purpose and character of use. The courts are most likely to
find fair use where the use is for noncommercial purposes, such as
a book review.
Factor #2: Nature of the copyrighted work. The
courts are most likely to find fair use where the copied work is a
factual work rather than a creative one.
*195 Factor #3: Amount and substantiality of the
portion used. The courts are most likely to find fair use where
what is used is a tiny amount of the protected work. If what is
used is small in amount but substantial in terms of
importance--the heart of the copied work--a finding of fair use is
unlikely.
Factor #4: Effect on the potential market for
or value of the protected work. The courts are most likely to find
fair use where the new work is not a substitute for the
copyrighted work.
23
a. Epistemological and Methodological Considerations: Is
Fair Use Possible?
The fair use guidelines are flexible--if not
indeterminate. This flexibility, while it permits the court to
decide cases on their individual merits, can also be criticized as
capricious, unprincipled, and prone to abuse--a critique which can
be leveled at balancing tests generally.
24
Is that critique valid? In other words, is fair use fair?
To answer that question, one must understand
the epistemological foundations of fair use. That will also allow
us to determine the possibilities and limits for fair use as a
solution to the problem facing global IP law via incorporation
into TRIPs.
TRIPs' multivariate balancing test is, like
many other balancing tests in U.S. law, founded upon the legal
realists' rejection of binary “bright line” categorical analysis
in favor of multivariate balancing tests. Though the realists'
rejection of bright line categorical analyses is not in fact well
founded, fair use is still epistemologically solid. The fact that
the realists' epistemology leads them to a general methodological
rejection of categorical analyses is not equivalent to finding the
methodology proposed by realists, interest balancing tests, to be
necessarily or even generally ill founded. Balancing tests, like
bright-line categorical analyses, are only contingently well
founded, but can be well founded depending on terminological
certitude and empirical verifiability.
Current legal epistemology incorrectly rejects
“bright line” categorical tests (e.g. “copyright” /” not
copyright”) on the following grounds: while categorical analyses
are unambiguous, they are at best teleologically blind, and at
worst, teleologically vicious. When teleologically vicious, formal
manipulations are
*196 nothing more or less than the mask of class
dominance. When teleologically blind, formal manipulations ignore
whether substantive outcomes are in fact just, and elevate the
procedural form over the substantive result. The realists'
conclusion is a methodological rejection of categorical bright
line analysis, such as “copyright/no copyright,” in favor of
“balancing tests,” such as fair use. Their rejection is, however,
ill founded.
Categorical analyses require an exact
methodology, i.e. terminological and empirical certitude, and
strict application of formal logic. Since the realist revolution
of the 1930s, those methods are criticized and generally rejected
as rigid formalism. However, the realists' rejection of formal
logic is overly-simplistic: the realists ignore that formal logic
and empiricism are perfectly compatible as methodological tools in
the search for truth. If balancing tests, favored by the
teleological interpretation realism prescribes, can be evaluated
and determined according to objective empirical evidence, then so
too can “bright line” categorical analyses. There is no empirical
difference between determining the “weight” to be assigned to a
“factor” in a multi-variate balancing test and determining whether
a “bright-line threshold” has been crossed. At the empirical
level, the realist argument that flexible “balancing tests” are
better than “formalist bright-line tests” is empty.
This line of reasoning shows why the realist
critique is overly-simplistic. Further study reveals why that
critique overstates its premise. The realists argue that formal
logic is at least abused if not misused. Logic can of course be
abused. However, the realists ignore that formal logic is only
contingently, and not necessarily, manipulable.
25
The manipulability of formal logic is contingent upon a
combination of terminological inexactitude--which can exist--and
intellectual dishonesty: it is not inevitable. If all formal logic
were merely a manipulation designed to mask the raw exercise of
power, then no logical argument would be admissible.
26
That premise, however, is self-contradictory
and leads to a conclusion which voids most nihilist discourse. It
is also empirically untrue: even tyrannies seek to justify their
exercise of power, and in some cases, the justification is valid.
Just as no regime is entirely just, no regime is entirely unjust.
The above described logical contradiction
defuses most nihilist discourse whether such discourse is
presented as legal realism or post modernism. Many post-modernists
raise irrationalist arguments similar to the realists: members of
both those schools of thought assert that there is no truth or
that all truth is relative. That position leads, however, to the
conclusion that one must reject logical argument! The antinomy in
either case (legal realism or post modernism) is that it is
illogical to use logic to argue that one cannot or should not use
logic.
*197 If there is no truth, or if all truth is
relative, then statements such as “there is no truth” or “all
truth is relative” are logically empty of meaning. The antinomious
conclusion is, however, the necessary and inevitable conclusion
which most post modern and realist epistemology leads to, and must
lead to, if we take their assertions of truth nihilism or
relativism seriously--and not as a mere sensationalist foil for a
healthy truth skepticism which they generally are.
Although the position of realists and
post-modernists taken to its logical conclusion does in fact lead
to an impermissible antinomy, a qualified realism is admissible.
The statement “the abuse of formal logic leads to some injustice”
is perfectly admissible--and is in fact empirically true and
possibly even necessarily true. The statement “the use of formal
logic always leads to injustice” is: (1) empirically untrue and
(2) logically antinomious. The first, a qualified realism, is
admissible and does not overstate the realist critique. The second
is not: it goes too far.
27 Truth skeptics and
realists have some points--logic can be, and sometimes is,
manipulated. But truth skeptics and realists should be careful not
to take their points too far, lest their nihilism also annihilate
their own discourse via the antinomy described. That annihilation
necessarily occurs whenever realists or post modernists assert a
truth statement purporting to negate the existence of truth
statements. This annihilation happens for example when they
attempt to simultaneously assert that: “all moral values are
relative” and “no truth exists.” Those two statements are in fact
logically incompatible. They cannot be asserted simultaneously in
logical discourse. They are antinomious--the former
heterologically the latter autologically.
Consequently, this leads to the conclusion that
the linguistic indeterminacy and supposed flaws of formalism which
led to the replacement of “bright line” categorical tests by
interest balancing tests, such as fair use, were not as grave as
realism proposes. Thus, realism is an imperfect solution to an
ill-defined problem: interest balancing is just as manipulable as
“bright line” categorical hermeneutics.
Despite flaws in the relativists' positions,
their arguments are so successful that contemporary axiology
generally limits itself to market values and ignores “subjective”
moral values. Economic analyses are ascendant because they can
claim scientific objectivity and thus legitimacy. Economic
arguments are, or at least appear to be, empirically quantifiable,
and therefore verifiable, and thus objective. Thus, in the search
for substantive justice, legal realism has given judges the
necessary tools to allow the deployment of their subjective
will--without however any moral telos to guide that will. So the
realist critique, which
*198 is ultimately a critique of formalism's
supposedly absent teleology, falls apart for lack of foundation.
The teleological critique of formalism presented by realism
depends upon an objectivist axiology which realism itself helped
to destroy!
28 If all moral values are
merely subjective, then only economic values are scientifically
objective, i.e. quantifiable and verifiable. Thus, the judicial
willpower realism unleashes is now exercised to serve the
interests of the wealthy.
How is this epistemology relevant to fair use?
Contemporary legal epistemology generally is at least skeptical
toward the existence of truth and rejects the existence or at
least the cognizability of objective moral values. If “no truth
exists” or “all values are relative”--statements which we have
shown to be logically void, but which are nonetheless in vogue
because they are shocking and their less extreme versions are well
founded--then economic empiricism is the only remaining scientific
argument, which explains the contemporary ascendancy of economic
analyses. Thus, in anglo-saxon copyright law, the subjective moral
rights of authors have little “weight” in the face of “objective”
economic considerations. Correcting a flawed methodology would be
one step toward harmonizing fair use and droit moral.
Rather than arguing within the presumption that
economic value is the only value or the only objective value,
methodological critiques of fair use would best question the
epistemology upon which balancing tests such as fair use are
founded. An epistemological critique of the realists and post
modernists is possible because truth negationist epistemology is
incorrect. True statements do in fact exist. It is true that not
all arguments are verifiable, and that not all arguments are
falsifiable. It is also true, however, that some arguments may be
verified, or at least falsified, and that not all arguments which
are falsifiable necessarily imply a verifiable contrary position.
Having established the objectivity of its epistemological
foundations, the best critiques of fair use will then attack the
methodology of balancing tests. First, they will question the
pseudo-empirical foundations of balancing tests generally.
Determining which factors are to be chosen and what weight they
are to be given are ultimately decided by judicial willpower,
which negates the supposed objectivity of “value free” empiricism.
Next, the methodological critique will point out that balancing
tests are as vague and manipulable as categorical analyses--and
possibly more so, after all, there are more terms to play with.
Despite these possible
attacks, one nevertheless concludes that fair use is
epistemologically and methodologically speaking well founded.
First, the realists' epistemology can be defended, though only in
a qualified manner. Though truth negationism is inadmissible,
truth skepticism is permissible. Second, the realists'
methodology--balancing tests--is no more (or less) “objective”
than categorical
*199 bright-line analyses. Third, the realists'
methodology is not capricious, or at least no more capricious than
categorical analyses, because it is empirically grounded upon data
which are often, though not necessarily, quantifiable and
verifiable.
These reasons bring
one to conclude that it is possible to transpose the fair use
standard into international law, as it is epistemologically and
methodologically well founded. Whether such a transposition is
necessary, desirable, and consistent with international law is
considered in the remainder of this paper. The next section will
elucidate from an economic analysis that the fair use exception to
copyright maximizes social wealth, and that its transposition into
international law is thus desirable.
b. An Economic Analysis of Copyright and Fair Use: Is Fair
Use Desirable?
Although one might
attack the economic foundation of fair use as pseudo-empiricism,
if economic quantifiability, and thus verifiability, is
admissible, then one must conclude that an economic analysis of
fair use
29
justifies that doctrine because fair use tends to maximize social
wealth.
i. Justification of the Fair Use Doctrine via Economic
Analysis of Law
The rationale of
copyright is that information production and diffusion are
antithetical: measures to encourage information production
discourage information diffusion and vice versa. For example,
granting information monopolies will encourage the production of
information--discovery or creation--but will discourage the
reproduction of that information--copying. On the other hand,
allowing free reproduction of information--encouraging diffusion,
would at the same time discourage the creation of intellectual
works through discovery or invention because there would be less
incentive to create.
This author disagrees
with that classical rationale. Presented herein is a skeptic's
critique that economic analyses are sometimes only
pseudo-empirical due to empirical difficulties of evaluation of
worth and macroeconomic measurement. This author argues that the
particular facts of the internet indicate that economic incentives
to produce and disseminate information are not contradictory, but
are mutually reinforcing due to derived works and synergies.
30
*200 The relation between the quantity and the
quality of information as a “trade-off” is illustrated below:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
This graph also
demonstrates the empirical limitations of macro-economic market
analysis. Macroeconomic analysis is often limited to estimations
and is not perfectly precise. This chart does illustrate the point
that analyzing the information market is difficult in part due to
the fact that changes in available information have the effect of
shifting the production possibilities frontier. In other words,
the information supply curve is dynamically reactive. Essentially,
the internet “shifts” the information production possibilities
frontier dramatically to the right, allowing for the low cost
instant global diffusion of information. This effect of new
information technology on the information supply curve is shown
below:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Curve 1 shows the
production possibilities prior to technological innovation. Curve
2 shows the effect of a new technology increasing productivity on
the production possibilities frontier.
These graphs are
simplified because of the empirical limitation of economic models
to which we add a further caveat: economic analyses of information
and information technology markets are heterogeneous. We do not
see one uniform
*201 good “information,” but a range of possible
goods “high quality restricted (i.e. expensive) information” or
“lower quality open (low cost or free) information” in
differentiated markets, such as books, television, movies, cd
roms, sound recordings, and video recordings. If one accepts,
nevertheless, that an economic analysis can give at least a rough
guide for public choice--an acceptable range of possible values
with definite maxima and minima--then one may extrapolate the
hypothesis that the aggregate supply and demand curves for
information look something like this:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
The problem of
proprietary information is that granting a property right over
information limits diffusion of that information: although
available information could be distributed more openly, it is not,
in order to encourage the creation of new information. However,
much of the protected and thus restricted information would be
produced even if there were no legal protection at all. This can
be shown when one considers the ready availability of open source
software. Operating systems, word processors, graphic arts
applications, games . . . virtually every application which one
could desire is available via the GNU
31 open source licensing
system. Rather than encourage the creation of new information,
restrictions on information such as copyright only guarantee that
the proprietors of that information will be able to extract rents
from those clients who
*202 are unaware of the existence of alternative
sources of information or information technology, such as GNU.
Because IP represents
a necessary protection for authors, the classical economic
rationale should be rejected in favor of a more modern economic
rationale which recognizes that IP is a monopoly granted by the
state leading to entry costs and transaction costs which reduce
aggregate wealth. If new technologies shift the production
possibilities frontier dramatically to the right, the monopoly
which IP law represents pulls it back to the left--to the
detriment of society as a whole.
ii. The Chicago School's Efficient Capital Market
Hypothesis
Although one may
disagree with the classical economic dichotomy of information
production versus dissemination, one must nevertheless recognize
that the key contemporary “problem” in IP is that information can
be produced, copied, and distributed globally at little or no cost
beyond production. This fact of low costs in the production and
diffusion of information tends however to support the Chicago
school's efficient capital market hypothesis (ECMH). While many
are critical of ECMH, the fact that free information improves the
efficiency of capital markets is one more argument in favor of
free information. However, the critiques of ECMH are relevant
because they show the tensions of IP and its implications for
other fields. We also discuss ECMH because even if the classical
view that information production and dissemination are dichotomous
are true, the freedom of information would still be desirable, as
it leads to more efficient capital markets; and consumption,
according to the neoliberals, leads production. However, the ECMH
is in fact only partially correct because some market
imperfections are inevitable due to the inevitability of cyclicity
and unemployment. The ECMH proposition that free information leads
to greater efficiency is true. Thus, freedom of information is
desirable even if the production and diffusion of information were
dichotomous because that freedom leads to greater capital market
efficiency.
The ECMH proposes that
information is a perfectly distributed good and that there are no
transaction costs in information.
32 However, while
information is almost instantly available at very low costs,
finding and using that information is neither instant, nor
costless, nor evenly distributed. Further, the Chicago theory
ignores the existence of false and misleading information, as well
as the inevitability of some transaction costs such as legal
formalities and translations.
33 *203 The Chicago theory also ignores market entry
costs. Although thinly capitalized start up companies are normal
in the English speaking world, this is not the case in civil law
jurisdictions. Moreover, even if a thinly capitalized company can
enter the market with low costs, it is still limited by material
capital requirements for production, such as machinery, vehicles,
and land. So while information costs are dropping all the time,
entry costs and transaction costs have not been eliminated. Thus
capital markets are not perfectly efficient.
34
However, instant global information does tend to improve capital
market efficiency, and for that reason, should be encouraged.
While markets are not as efficient as the Chicago school proposes,
they could be rendered more efficient by reducing the protections
of copyright, which would lower costs of market entry and
transactions.
Having considered the
epistemological and empirical problems of the fair use doctrine,
we now turn to the possibilities and problems for legal
transformation via a study of the law and practice of internet
copyright.
iii. Customary Law and Public Domain of Information
Published Via Internet
If free information
makes good economic sense, then what legal structures can or could
support such a rule? One argument in favor of the free use and
copying of information on the internet is that such copying is
already widespread in practice and thus constitutes customary law.
At its simplest, the argument is that trying to enforce internet
copyright is impossible. A more refined argument is that internet
copyright violation is largely in good faith. The best argument is
that there is a legally binding custom that information published
via the internet shall be presumed to enter thereby into the
public domain. This argument, while very attractive, will be shown
to be legally unpersuasive.
The definition of
customary law in the roman law, civil law, and common law is
nearly identical: a usage is a generally accepted practice of a
society adopted and observed over time. If a usage is also
believed to be obligatory in practice, i.e. sufficiently
widespread and ancient, then the usage eventually becomes, as a
matter of law, obligatory. Custom is “a usage which had acquired
the force of law.”
35
The argument is that
because free copying is a practice sufficiently widespread as to
constitute a usage, and believed to be legally permitted, the
practice of internet copying constitutes customary law. However,
custom in the common law is required to have been historically
dated from “time immemorial.” So, there probably is no customary
law here because the relevant time has not
*204 passed. Further, custom cannot be asserted in
opposition to a contrary statute--and such a statute does exist.
The practice of downloading and uploading is by definition very
recent. Thus, while this author does observe the practice of
wholesale copying and linking on the internet, more often than not
made with the innocent but mistaken belief that such copying is
legal, and thus objectively believed to be the legal standard,
such a usage has not yet ripened into customary law because a
contrary statute exists. Additionally, even if the statutory bar
of such a custom could be avoided through a very broad
interpretation of fair use, a claim of customary public domain
still faces the question as to whether all custom must date from
“time immemorial”-- the correct position, at least under common
law--or whether “new” customs can arise--which is in fact the case
of international law. Therefore, the argument that information
should be legally free in theory because it is in practice, while
intriguing, is not valid--at least not yet.
A related argument to
public domain via customary law would be an assertion that
internet information wrongfully acquired can enter into the public
domain through prescription. However, prescriptive claims require
around twenty years of open, notorious, and adverse possession to
ripen into good title and, traditionally at least, concern only
real property.
iv. Proposed Standard: Rebuttable Presumption of Public
Domain Over Information Published on the Internet
While the juridical
arguments for public domain via custom or prescription are weak,
there are good economic arguments for adopting such standards.
Public domain via custom or prescription would be a practical
legal mechanism to achieve a socially beneficial economic outcome.
Rather than supporting the drastic measure of prescription, one
might propose that there should be a rebuttable presumption that
information posted to the internet enters the public domain,
thereby it can at least be further copied for diffusion via
internet, for reasons of economy. Allowing the free reproduction
of information--where such is already technologically
possible--maximizes wealth not only of society but also of
individuals in society. Information which is not distributed is as
useless as any other undistributed good. Even more importantly,
information is different from physical goods in that it is not
eliminated by consumption. True and accurate information actually
increases in value as it is diffused and used.
The presumption of
transfer to public domain via internet publication can be
supported in that the internet was created by the state. The
argument can also be supported by allowing “owners” of information
the opportunity to rebut the presumption by taking the necessary
practical steps to prevent the copying of “their” information.
Technologically speaking, if a creator wishes, one can keep that
information publicly available for consultation only. This is
accomplished through the use of Common Gateway Interfaces (CGIs)
(usually written in Java or Perl, though CGIs have been written in
hyperCard using hyperTalk) and also through java (as opposed to
javaScript) applets. The CGI or applet essentially is
*205 programmed to permit distribution of the
information, but to prohibit downloading the information.
Scripting a CGI or
Applet to guarantee the proprietary nature of information is no
more an undue burden on those who wish to appropriate information
than the cost of building fences, walls, locks, and other methods
of protecting and preserving exclusivity in one's tangible
property. While CGIs and Applets are slightly more difficult to
code than javaScript or HTML, the difference is not that great.
Thus, when weighing the interest of the public in having low cost,
high quality, accurate information against the interest of private
appropriators in rent seeking to take advantage of suboptimal
conditions created by transaction costs, it seems rather clear
that the burden of elaborating CGIs and Applets (which could then
be sold) rightly belongs on the shoulders of the appropriator--and
that the freedom of information rightly belongs to the public.
Information should be
free, for only then can it be useful. Unlike other products,
information cannot be consumed--only used--and it increases in
value with diffusion. If information appropriators wish to seek
rents, they can do so quite easily by using closed source methods
such as applets and CGIs. Further protection can be added by
creating systems of passwords, or by authorizing access only to
subscribers--such as America Online, one of the most proprietary,
and successful, internet services.
Essentially, the
conflict is between the public interest in the optimum mix of low
cost and high quality information, and individual creators or
appropriators of information who are rent seeking. Favoring the
latter can lead to less than optimal situations of semi-monopoly.
Such rent seeking is best illustrated where each individual injury
is de minimis, yet the sum of these injuries over thousands or
millions of individuals translates into millions of dollars. The
transaction costs of litigating each individual person's interests
are far higher than the potential gains to individuals, whereas
the costs to the appropriator to maintain their monopoly is much
less than the benefit which accrues to them because of that
monopoly. Rent seekers thrive off of sub-optimal economic
situations, and proprietary information encourages this. Domain
name squatting, the “anti” virus business, and even
piracy-for-profit, are all examples of where transaction-costs
encourage sub-optimal outcomes.
From this brief study
of U.S. copyright law, we have seen that: (1) U.S. copyright law
is based ultimately on an economic theory--that copyright should
be defined by the economic effects of that right which should be
to encourage wealth creation and distribution, and (2) U.S.
copyright law is consequently ambiguous because it is based on
“balancing tests,” which weigh different factors, and are
manipulable.
Next, a close
comparison to the E.U. scheme of IP law will demonstrate that the
U.S. law is somewhat less proprietary than European law in that
the fair use exception can be very wide. It is also notable that
the U.S. regime has lower
*206 transaction costs than the European regime
36
because it recognizes only very limited moral rights of authors
over the integrity of their work (“droit moral”).
37
B. European Regime
1. Points of Convergence in Anglo-American Law vis-à-vis
the Continent
a. Historical Origins
The first point of
commonality between the two systems is their historical origin.
The origins of copyright, both in common law and civil law, are
found in feudal laws licensing printers to publish books
38
as a derogation from or concession of the royal authority. In that
system, the censorship and prior restraints were presumed to be
the rule. Publication was possible, but first had to be granted
approval by the royal government. This presumption has of course
been reversed with the industrial revolution. Today, the
presumption is that publication is legitimate and any limitations
upon publication are exceptions from that general principle.
This change shows that
information freedom is a relatively recent concept. Ironically,
the post industrial era of information-based production retains
the principle of freedom of information, but limits it severely
through regimes which permit the appropriation of information.
Thus, information freedom is now threatened not by the state, but
by the private sector.
Historically, the
appearance of national law systems and legal codifications marks
the end of medieval feudal law and the beginning of contemporary
national law. It is also the point where the different national
regimes of IP law become more clearly defined and thus diverge.
Following is a discussion of those points in Anglo-American IP law
which diverge from continental law.
b. The Idea/Expression Dichotomy
As mentioned
previously, there are both theoretical and practical points of
commonality between the Anglo-American “copyright” and the
continental European “droit de la propriété
littéraire/Urheberrecht.”
39 One of these
commonalities is
*207 the idea/expression dichotomy.
40
Essentially, intellectual property law protects expressions of
ideas, but not ideas themselves. Further, both continental
European and U.S. law protect, albeit to different extents,
inventions (patent), writings (copyright), trademarks, trade
secrets, and most recently, designs and models, using similar
legal mechanisms.
Epistemologically,
however, the idea/expression dichotomy can be criticized. As
currently conceived, IP law is epistemologically unsound, as it
adopts incoherent definitions. First, the idea/expression standard
breaks down when analyzed critically. This can be seen most easily
in computer programs. Any computer program can be shown to be an
algorithm, i.e. a mathematical function--and thus an idea. Any
computer scientist will admit that all computer programs are
mathematical functions and that every mathematical function is an
idea. Thus, no mathematical function would be able to be
copyrighted because it necessarily must fail the “idea/expression”
test. Numbers, letters, colors, and mathematical factors cannot be
copyrighted--yet any computer program is a mathematical function.
In fact, any
expression can be characterized as an idea. The distinction
between “idea” and “expression” rests on a false presumption that
a combination of ideas creates an expression somehow different
from those ideas. How many ideas must be combined before the
“idea” becomes an “expression” ? This question is not answered by
copyright--because it is unanswerable. Copyright meets the same
problem of censorship: no one can define an “original expression,”
or the difference between “idea” and “expression,” but everyone
claims to be able to recognize whether a given statement is an
“idea” or “expression.”
The requirement that
the expression be “original” is also contestable. What is an
original expression? How does one determine the “originality” of
the expression? Can one distinguish an original expression from an
idea? An “original expression” must be somehow “superior and
anterior” to competing expressions of the same idea--yet not so
“superior and anterior” as to be an idea. Where did the superior
and/or anterior expression come from? Why is it superior? Why is
it not an idea? Determining how specific or unique or different an
idea must be in order to be considered an expression of some
epistemologically prior idea is a question with no answer due to
the problem of infinite regress.
*208 The problematic nature of the “original
idea/expression” dichotomy can be illustrated with a concrete
example: one cannot copyright the color blue, nor the shape of a
squares. Thus, a painting of a blue square would probably lack
originality, and a blue square might not be sufficiently distinct
to qualify as a trademark. However, a series of pictures of a blue
square which when seen in rapid succession create the illusion of
motion, would probably be an “original” expression.
This brings the
discussion back full circle: the theoretical indeterminicity of
the specificity required to enable a judge to determine that an
expression is sufficiently “original,” yet not so original as to
be an “idea” and thus capable of being the subject of a copyright.
These distinctions necessarily break down because (1) every
expression is necessarily also an idea, and (2) no expression can
be shown to be “original” without thereby becoming an “idea.”
These facts show that
copyright is merely a monopoly right given to a particular
combination of existing ideas which serve a useful or aesthetic
purpose.
41
This underscores the position of legal realism and shows that the
real conflict in IP law is terms of trade.
2. Points of Divergence in Anglo-American IP Law vis-à-vis
the Continent
The U.S. perspective
on intellectual property is utilitarian and economic. Copyright is
granted because it encourages authors and inventors by rewarding
them for their acts of creation. According to this rationale,
copyright serves, and should serve, to maximize social wealth.
42
The economic foundations of U.S. copyright law explain why the
protection of authors in the United States is less extensive than
in Europe.
43 U.S. copyright law
contains only very limited rights of authors to the integrity of
their person as expressed in the work.
44 Further, these rights
of personality are recent and not as extensive as their European
homologues and are subject to the U.S. copyright act's §107 fair
use exception.
45 So, while there is
common ground for legal harmonization, the general conception of
copyright in the United States and other common law jurisdictions
is the economic right of an author to property, as opposed to an
emanation of
*209 their right of personality.
46
This purely economic
perspective is not without strife, even within the United States.
This is not because of the question of moral rights, which are
essentially unrecognized, but because of the question of the
political right to freedom of speech. The first amendment to the
U.S. constitution guarantees the freedom of expression. However,
there are instances abound wherein U.S. copyright law within the
United States has limited radical satirical critiques of American
society.
47
From a critical perspective, copyright is thus one more agent of
maintaining state dominance--but through “private” entities. In
such cases, it is clear that property rights take precedence over
free speech
48 despite the fact that
the U.S. Supreme Court recognizes that state action can impose a
prior restraint on commercial speech.
49 Thus, prohibitions of
advertising are legal in the United States.
50
However, the case of private action which limits free speech
through copyright and the contradiction that the assertion of a
nearly absolute right to free of speech under the first amendment,
and a copyright which in practice undercuts that supposed right,
is generally unrecognized.
51 In this author's
opinion, this “blind-spot” represents both the power and
flexibility of an ideology founded on “private free” enterprise
and the lack of conscious perception of that ideology which mutes
critiques of it--powerful enough to generate apparently compelling
propaganda, yet flexible enough to systematically destroy any
countervailing propaganda through the apparently neutral
mechanisms of “the free market.”
The above discussion
highlights why the U.S. regime of intellectual property is
contradictory: it generally forbids state action which imposes
prior restraints on “speech,” and even limits restraints on state
action after publication. At the same time, however, U.S.
copyright law can and does operate as a de facto (or even de jure)
prior restraint on speech due not only to the force of injunctions
and fines, but also to the chilling affect presented by lawsuits.
The paradox of the
state claiming little or no power over information, yet enabling
the private sector to control information is less evident in
Europe than in the United States. In Europe, generally, the limits
imposed on the power of the state to restrict speech are not
presented as absolute or fundamental. Thus, there is less
incongruence between the public and private spheres in European
law. This systemic coherence may be due to the different
rationales each system
*210 espouses. While the U.S. views intellectual
property from an economic and utilitarian perspective, continental
civil law considers intellectual property from a perspective of
the author's moral rights.
52 Thus, rather than
social wealth, the focus in Europe is on the integrity of the
person.
Another one of the
problems facing the international intellectual property regime is
that the European perspective of droit moral
53
and the U.S. economic perspective are at times contrary.
54
While these rationales are very different in practice, concerns of
each system--social wealth or integrity of the author and their
work--do eventually surface in the other's legal reasoning.
55
However, these “hidden foreign rationales” can in no way be seen
as an actual integration of two different systems. While such
parallels do present the possibility of rapprochement of the two
systems, they are neither consciously expressed as such, nor
sufficiently extensive to be considered as either a harmonization
or integration of these two different world views. In fact, they
demonstrate intra-systemic inconsistency and the need for
inter-systemic harmonization.
III. The International Intellectual Property Regime
Due to the different
protections afforded by different states for authors and inventors
under international law, a universal convention was established in
1883--the Berne Convention.
56 This convention is the
point of departure of any discussion of international intellectual
property law. It is the “keystone” or “centerpiece” of a number of
conventions on intellectual, literary, and industrial property
57
and has gone through many incarnations.
58 However, the other
conventions either complete the Berne convention, extend its
application,
59 clarify its meaning, or
apply it to new areas,
60 such as computers. They
also use
*211 similar mechanisms, mutual recognition, and
enforcement via treatment of foreign authors as if they were
national authors with a self-help remedy of non-recognition in the
case of breach. The principle discussion will thus focus on the
Berne convention and its continuing role as the center of the
international intellectual property regime, as implemented via
TRIPs.
Not only is the Berne
Convention the keystone of international intellectual property
law, it is also incorporated by reference into TRIPs. Its
enforcement is the object of the World Intellectual Property
Organization (WIPO).
61 The TRIPs/WIPO/Berne
regime should be understood as an amalgam of various legal
institutions and Conventions which seek to create and enforce an
international IP system along functionalist lines.
A. Berne
While the Berne
Convention has existed since 1883, the United States is a very
recent signatory, having acceded to the treaty only in 1989.
62
The Berne Convention establishes only minimum standards of
protection.
63 Member states are thus
free to establish broader protection--though with the entry into
force of TRIPs, such broader protections must not be contrary to
the free trade goals of the World Trade Organization (WTO).
The Berne Convention
does not codify an international law of copyright.
64
Essentially, the Berne agreement can be understood as a form of
mutual recognition and enforcement.
65 Each member state
agrees to protect the intellectual property of other member states
to the same extent as their national copyright holders. For
example, if East Ruritania and South Ruritania were both member
states of the Berne convention, an East Ruritanian would have the
same rights as a South Ruritanian in South Ruritania, and
vice-versa.
Mutual recognition is
achieved through two mechanisms: (1) foreign nationals of member
states of the Convention are treated equally to nationals of the
member state in question, and (2) each member state agrees to
treat member states' nationals (and residents) at least as
favorably as a non-member state (most favored nation status).
66
A case in point is if Britain accorded special protection to
commonwealth copyright holders, and if it were a member of the
Convention, it would have to extend such special protection to all
other members of the Convention.
*212 Berne is grounded upon the presumption of a
European law perspective of droit moral: intellectual property
from this perspective protects, inter alia, the moral right of the
creator to the integrity of their work.
67 Protection of the
economic rights of the creator is seen from this perspective as a
secondary goal.
In terms of legal
culture and history, the emphasis of droit moral on authors'
rights, rather than the right of contract or of consumers can be
understood as an outgrowth of the feudal origins of IP law.
Commerce in Latin countries was, and sometimes still is, viewed
with skepticism as being “base.” The Latin countries have thus
favored artisans and liberal professions rather than commercial
enterprises, as can be seen in their tax and commercial codes. In
contrast, commerce in the common law countries was always and
remains not only honorable, but the raison d'être of much
legislation.
One might criticize
the continental view as being founded upon inegalitarian medieval
conceptions of social status. That perspective can be defended,
however, as the common law on intellectual property can, and
sometimes does, place people before profits. The economic goals of
the utilitarian view and the moral goals of the continental view
are not necessarily contrary: individual wealth and social
responsibility can be mutually reinforcing and could be
reconciled. Creating such a synthesis of the common law
conceptions of copyright founded on economic rationales and
consumer rights with continental law's tendency to favor the
integrity of artists is one of the exciting challenges facing
legal theorists and practitioners in this field. In a world rich
in data, win/win solutions are possible.
Berne adopts and seeks
to implement the continental perspective. Because it is founded on
a perspective of droit moral, Berne limits the right of
reproduction to a greater extent than the common law. Translations
are an example of the limitation under Berne of the free diffusion
of information in order to respect the author's rights. Under the
Berne convention, it is the author's exclusive right to authorize
any translation of their work.
This illustration of
the limits that droit moral imposes on authors can be criticized.
It is not the position taken by the United States. Section 103 of
the U.S. Copyright Act would grant a copyright of the translator
in his translation but not in the original work.
68
The position taken under Berne limits the potential for wealth
creation and knowledge diffusion. Moreover, it is not always
practical: one cannot, for example, contact a deceased author to
obtain their permission. Will their estate grant such
permission--and if so, at what cost? If the author has sold the
rights to the story, has he also sold the right to authorize
translations? If
*213 he has sold that right, is it a failure to
respect his moral person to permit unauthorized translations? Such
are the practical and theoretical positions for which one might
critique Berne's position on translations, in addition to the fact
that limiting translations limits human knowledge making the
humanity that much less intelligent. Knowledge, unlike other
information, is not exhausted through diffusion, and in fact, only
increases in value with diffusion, which is why this author argues
that information freedom should be a general principle of
copyright law.
Whether one takes the
normative position of free information or proprietary information,
the positive law is clear: the U.S. domestic law and Berne on
translation are in conflict. Will this be litigated under TRIPs?
If so, the outcome would be an order to the United States to
change its domestic law-- unless the doctrine of fair use be
transposed into international law.
As well as its
restriction on translations and parodies of existing works, Berne
has been criticized on other grounds. While the principle of
Berne, mutual recognition of national laws, enabled the convention
to attract most states, its remedy has been characterized as
“anemic”
69:
In the event that a member state does not respect the Berne
convention, other member states are free to retaliate by
non-recognition of the non-complying state's intellectual property
rights.
70
Although this “self help” goal was attainable, it is not
sufficient to enforce a regime based on global rather than local
rules. Despite the origins of Berne in mutual recognition of
national standards, the tendency in international IP today is
toward the establishment of universal standards. This tendency is
best exemplified in TRIPs and other areas of WTO law. Thus, the
critique of the Berne enforcement mechanisms is not as strong as
it used to be because of the TRIPs Dispute Settlement Body (DSB)
procedures.
Although Berne can be
criticized for too severely limiting information freedom, there
are exceptions to the exclusive right of the author to permit
transmission of their work. Berne provides exception to copyright
for teaching
71 and news.
72
Does Berne's news exception permit translations of news? This
author would favor such an interpretation--but the treaty does not
facially say so.
This raises the
question whether Berne and/or TRIPs could contain fair use
exceptions. Our answer is affirmative, but our analysis must be
deferred in order to expose the international IP system under
Berne/TRIPs. This tension, and the difficult transformation from
national reciprocal standards under Berne to a universal global
standard, will be considered in the following section.
Simply stated, the
remedy under Berne was inadequate for creating a global IP legal
standard. Thus, TRIPs seeks to create, through the dispute
settlement mechanism of the WTO, an enforceable standard for
global trade. TRIPs is administered by the WIPO, which is an
agency of the United Nations (UN),
73 and an umbrella
organization for the Berne, Paris, and other multilateral treaties
on intellectual, literary, and industrial property.
74
In 1999, there were 153 member states in WIPO.
75
From these facts, we can conclude that “TRIPs . . . has become an
integral part of the multilateral trading system.”
76
What are the rationales underlying TRIPs? Will they interact to
create a unitary global IP law system? If so, will that system be
desirable?
1. TRIPs' Stated Telos
The stated mission of
WIPO is to promote creative intellectual activity.
77
Encouraging such “creative activity” is to be achieved by lowering
trade barriers.
78 While the first goal,
promoting creativity, is defensible--and lowering trade barriers
would do that--the monopoly right of patent or copyright is itself
a trade barrier, and thus, contrary to free market liberalism.
79
It therefore is more coherent to state that the objective of WIPO
is to reduce transaction costs involved in maintaining the trade
barrier created by copyright, patent, or other forms of
intellectual property. Even if we presume that such were the
actual goal, and that creative activity is encouraged in any
respect through monopoly over dissemination of the created work,
that does not change the fact that such monopoly is a trade
barrier.
This is not the only
contradictory telos in WIPO. Other goals of WIPO have been stated
to be free, predictable, and competitive trade.
80
Those enumerated goals are contradictory, however: free trade is
necessarily unpredictable. If trade is free, then one cannot
predict who will trade what, where, or when. Similarly,
“predictable” trade is necessarily uncompetitive. This is because
predictable trade is administered by de facto or de jure cartels,
which fix prices and eliminate competition. The contradiction of
“predictable competition” can be explained as
*215 a reflection of the anti-cartel perspective of
U.S. competition theory, and the pro-planning perspective of
European industrial policy. While those goals may or may not be
laudable, they are in fact contradictory.
2. TRIPs' de facto Telos
Due to the fact that
the stated goals of the TRIPs agreement are contradictory, one
seeks to discover what the actual goals might be. Contradictions
inherent in these stated goals imply that the actual goal of TRIPs
is to establish a world proprietary regime in intellectual
property regardless of the effect of such a regime on competition.
That result is, in any event, the functional outcome of TRIPs:
presumably, the actual outcomes are intended outcomes. A unitary
world IP regime would, incidentally, serve U.S. interests in
consolidating its global hegemony.
Both TRIPs and the
U.S. Digital Millennium Copyright Act (DMCA) consolidate the
United States' IP hegemony.
81 TRIPs consolidates U.S.
hegemony by extending the enforceability of U.S. copyright.
82
The DMCA consolidates U.S. hegemony by imposing liability on
on-line service providers (OSPs) for the content they host. That
makes OSPs agents of the state as enforcers of property rights
83--thus
consolidating the global IP regime.
The DMCA has been
criticized as being an overly broad application of civil and
criminal liability to faultless acts (decompilation for illicit
purposes) or omissions (failure to verify and remove illegal
on-line content). Both TRIPs and DMCA are part of a U.S. global
strategy to favor large businesses within the United States at the
expense of foreign and small businesses. This strategy is
essentially to establish the U.S. as a data haven, where freer
recompilation and transmission of data will permit industrial and
commercial development. By the same logic, strongly enforced IP
rights overseas will limit information freedom to impose on the
rest of the standards, which will hinder their competitively and
allow U.S. companies to extract rents from their monopolistic IP
rights. For brevity, this strategy will be referred to as the
“double standard.”
The attempt to impose
a global “double standard” on freedom of information may not be
realized because of TRIPs. That is, however, irrelevant. The
strategy seeks to favor not only U.S. businesses, but especially
large multinationals. Consequently, even if the double standards
are stricken by TRIPs, the U.S. strategy still prevails. In a
worst case scenario, the United States would no longer be a data
haven, but multinational U.S. companies would still retain their
market
*216 dominance in computer software, entertainment,
and biotechnology--and the property right to exploit that
dominance. From the perspective of U.S. business, the two-pronged
U.S. strategy cannot lose. From the perspective of the U.S.
consumer, the strategy is a gamble and may win or lose. From the
perspective of foreign consumers, however, the strategy is a
no-win proposition. Foreign businesses may appear at first to
benefit from strong IP laws but will not benefit as much as U.S.
businesses, particularly if the two-pronged strategy works to
impose double standards. Thus, foreign businesses are at best only
“qualified” and relative winners--and will more likely than not be
crushed rapidly by companies such as Microsoft and Intel as
national monopolies become global.
3. TRIPs' Methods of Enforcement
The legal mechanisms
of the TRIPs agreement at first appear relatively familiar. Like
the Berne convention,
84 which it incorporates
by reference, TRIPs provides for national treatment
85
and most favored nation status. However, where Berne was based on
consensus, TRIPs is based on a quasi judicial system.
86
The TRIPs panel reports are automatically adopted.
87
Thus, there will be less opportunity within TRIPs for the
establishment of dual standards such as: fair use/decompilation
within U.S. boundaries versus neither fair use nor decompilation
outside the U.S.; software patents in the United States but not in
Europe; or different treatment of data banks. Whether TRIPs will
help to eliminate existing double standards by imposing a global
regime remains to be seen. But even if it does, the global IP
regime would probably still be dominated by the United States.
C. Anarchic Polyphony
Berne and TRIPs do not
yet provide a universal standard. The law here, as elsewhere in
copyright,
88 is characterized by
anarchic polyphony.
89 Absence of clear rules
in this field is in part a result of the economic stakes involved.
The commanding heights of first world economies are information
driven--computer hardware, software, biotechnology, and avionics
are all leading edge industries and are information intensive.
While entertainment and culture is not a capital but consumer
good, it is nonetheless true that even in consumer markets the
*217 question of the right to consume or diffuse
information is key to the contemporary economy. Due to the
magnitude of the stakes involved, a consequence of the transition
from mutually enforced national standards to a globally enforced
universal standard will be characterized by conflict. Nonetheless,
that conflict will operate within the system, and will neither
threaten nor destroy the TRIPs dispute settlement mechanism.
IV. Areas of Conflict in International IP Law
On balance, the United
States and European conceptualizations of IP law are founded on
divergent rationales: economic efficiency versus the moral rights
of authors to the integrity of their person as expressed in their
work. The previous discussion clarifies that the supposed
rationales of the WTO and WIPO are in fact internally
contradictory (partly a reflection of these different rationales),
and that the United States' trade strategy takes advantage of this
duplicity in its efforts to impose a double standard favoring
large companies generally, and large American companies
particularly.
90 Given these facts, it
is hardly surprising that there are contentious areas within the
world IP system, not only between élites and masses, but also
among élites. Next, this analysis examines these contradictions in
order to better understand their resolution through the
development of an international fair use doctrine.
A. TRIPs
Though the mechanisms
of TRIPs are generally familiar, one should note that the TRIPs
agreement is the only WTO agreement that requires the members to
automatically and definitively incorporate complex substantive
legal structures into national laws.
91 As such, it represents
the stunning yet quiet victory of functionalist methods to achieve
global federalism. Further, unlike other WTO legislation,
92
this surrender of sovereignty to an international administrative
tribunal was not linked to any counterpart in social welfare
legislation,
93 such as poverty
reduction, environmental protection or guaranties of social
minima--although third world states are given a little more time
than first world states to comply with the orders of the Dispute
Settlement Body of the WTO. Thus, the WTO is one more not so quiet
victory of global capitalism over socialism. Unsurprisingly, these
facts lead to both leftist and populist discontent with the WTO.
This general discontent reinforces inter-élite disputes over the
substantive
*218 content of international IP law. The inter-élite
disputes are focused upon several specific points of conflict.
Those specific areas of conflict in TRIPs are in fact driven by
national or continental interest. Those conflicts are discussed
thoroughly in the subsequent sections.
1. Reverse Engineering
Most computer
programmers work in “high level” languages such as C
94
or Pascal, which resemble English. Some programs are written in
“low level” assembler language, which is mnemonic instruction set
readable only by specialists. In the former case, the program must
be compiled and assembled, while in the latter, it need only be
assembled. The final result in either case is machine
language--zeros and ones. However, while compilation is
irreversible, assembly is not. Assembled machine language can be
disassembled into assembler (mnemonic codes) and read by trained
persons. Machine code is virtually impossible for a human to read.
The cases involving
reverse engineering generally involve the right to disassemble
assembled machine language code (whether compiled and assembled--
nearly universally the case--or generated directly from assembler
mnemonics). The U.S., which permits reverse engineering even under
the DMCA,
95
pressured Japan, and as a result, decompilation is illegal in
Japan.
96
*219 Similarly, the U.S. pressured the E.U. on
reverse engineering. In the E.U., decompilation of copyrighted
programs is permitted only to permit interoperability of programs.
97
However, decompilation is permitted
98 without condition under
U.S. law.
99
No multilateral treaty
exists addressing reverse engineering.
100 Thus, absent a
statute such as the European directive,
101
reverse engineering of software can be presumed to be legal under
national law because Berne appears silent on the topic. Reverse
engineering is not a violation of copyright because the idea
represented by the program or schematic diagram is an expression,
whereas the idea it embodies cannot be the object of copyright.
102
For this reason, reverse engineering is permitted under TRIPs.
103
This is, of course, an ideal situation for the United States, as
competitors are relatively or absolutely restrained, presuming
they observe and enforce their domestic law. In other words, the
United States has partially succeeded in its objective of
inventing itself as a data haven--which seems, objectively
speaking, unfair.
A further asymmetry in
domestic copyright law working to the advantage of the United
States is the differential treatment of software in national law.
Under TRIPs, software is subject to copyright,
104
although the availability of legal protection for
databases--stored and indexed information--remains contentious. In
Germany, databases are subject to fifteen years of protection from
creation. In the United States, under the 1976 Copyright Act,
databases lack “originality”
105 and thus cannot be
copyrighted.
106 Non-protection of
databases may change under TRIPs,
107 but the DMCA did not
enact database protection.
108 Though E.U. member
states do not permit software patents,
109 under U.S. law,
software may be both copyrighted
110 and patented.
111
TRIPs also permits patenting of software.
112
Once again, the asymmetry provides a competitive advantage for the
United States because its IP has greater potential protection than
its European competition. Again, this policy is subject to
criticism for providing an unfair trade advantage to the United
States, and thus, could be litigated under the WTO's dispute
settlement understanding (DSU).
Software patents can
also be criticized on economic grounds as being an economic
hindrance: Strong patent protection is a barrier to market entry,
113
and thus discourages productivity. Software patents create an
“anticommons.” The anticommons is like Hobbe's state of
nature--poor, nasty, and brutish. The anticommons is also like
Babylon--each proprietor has one piece of useful information, but
the transaction costs created by the patent regime prevent the
socially useful combination of these different pieces.
114
If the commons is obliterated from lack of fences, the anticommons
cannot be usefully farmed because of too many fences.
The anticommons
possibly resulting from this raises another justification for
denying patent protection of software. Suppose an author places
his software in
*221 the public domain--and then a plagiarist
decompiles the software and patents parts it. That would be
perfectly legal under U.S. law, but it is socially undesirable.
There is a potential nightmare waiting when some patent “shark”
decides to appropriate public domain software via patent. This
demonstrates again that propertarian systems can generate as many
problems as they purport to solve. All of these problems could be
obviated by creating a fair use exception in patent to cure this
problem of market failure
115 This would not,
however, resolve the broader international problems. Such problems
can only be solved through the creation of universal standards
under TRIPs, which should incorporate the U.S. fairness doctrine,
mutatis mutandi to account for authors' moral rights (droit
moral).
3. Plant and Genetic Data
TRIPs provisions on
patenting plant species and other genetic data have been
criticized as essentially transferring wealth from the third world
to the first world without compensation.
116
This has been one of the main points of contention in North-South
relations, and is one focal points of leftist and populist
opposition to TRIPs.
4. Place Names
TRIPs has also been
criticized by some businesses for extending an IP right of
exclusion to geographic place names. Thus, for example “Champagne”
would only be allowed to be so named if it were produced in the
Champagne region in France,
117 much to the chagrin
of U.S. producers of “sparkling wine” . This latest restriction on
information freedom is justifiable, however, from a consumer
protection perspective: it essentially amounts to consumer
protection similar to trademark. This can be problematic, however.
For example, Budweiser beer is brewed in the style of
Budweis--thus TRIPs' place names could deprive the leading U.S.
beer of trademark protection of its IP in that mark. Strangely,
however, no one seems to object when first nations such as the
Apache see their nation's name used to describe a web server; or
when other nations such as the Blackhawk, Iroquois, or Kiowa see
their nation's name used to describe U.S. military helicopters. Do
the Navajo or Xuni nations have an IP right to their distinctive
adobe architecture and does a certain software company infringe
thereon? This is one more example of how TRIPs favors élite
dominance.
*222 We conclude from these conflicts and the
mechanisms for their supposed resolution that TRIPs serves the
interests of élites and is anti-democratic. Berne merely
establishes minimum national standards which protect the integrity
of the author's work as well as the economic interests of authors.
TRIPs, in contrast, examines intellectual property from a trade
perspective. Though TRIPs proponents may claim that TRIPs “merely”
incorporates and implements a more effective remedy for Berne
violations than was provided under Berne, TRIPs in fact goes much
further. TRIPs serves as the “core” of a global intellectual
property regime which may purport to respect authors' integrity,
but which in fact will be directed to advancing the economic
interests of the élites of the industrialized world. Droit moral
is from this perspective, merely a one more trojan horse for
opening trade and extracting resources from the third world. This
alone would be insufficient to spark populist or leftist rejection
of the WTO. However, in combination with the other criticisms
raised, including inter-élite conflicts, we can understand why the
WTO generates vehement opposition.
B. Fair Use
As should by now be
clear, the common law fair use exception is a serious point of
conflict between common and civil law trading partners. This
section first explores the extent of the problem--whether TRIPs
spells the end of fair use. Then, the discussion considers
possible solutions to the conflict over fair use, namely whether
fair use can be found in the Berne treaty.
The status of fair use
under international law is uncertain.
118 Some commentators
argue that there is no doctrine of fair use in international law.
119
Others argue that although there is no current conception of fair
use under international law,
120 international law
should nevertheless develop such a standard.
121
The better reasoned view is that a number of points under both
Berne and TRIPs evince the same considerations that justify the
common law doctrine of fair use. Furthermore, the U.S. domestic
law should be judicially reinterpreted to bring fair use into line
with U.S. treaty obligations, notably the observation of droit
moral mandated under Berne. In addition, the fair use doctrine
should be transposed to the international arena. Such
transposition and reinterpretation will best serve the interests
of the public.
As previously noted,
the U.S. doctrine of fair use, at least as presently interpreted,
is incompatible with TRIPs. This is because fair use, like all IP
law in the common law system, is based not on the perspective of
the moral right of the author to the integrity of their
personality as expressed in their work, but upon an economic
analysis of social wealth. This, it provides less protection for
*223 authors and more protection for consumers.
122
Despite the fact that
fair use as currently understood is contrary to the Berne
Convention, the doctrine of fair use will not disappear
immediately, but only after much litigation and reinterpretation.
One possible outcome could be to adopt a fair use standard
internationally. The transposition of “fair use” to international
law would, however, require reinterpretation of the doctrine to
integrate an author's moral rights (droit moral). That
reinterpretation and transposition will not happen without
pressure from the international community through TRIPs. This is
because of internal U.S. law, discussed below.
While some states,
such as France, are monist and regard international law as
superior to domestic law, this is not the case in the United
States. The United States has a dualist regime. U.S. Judges must
interpret U.S. law and international law to be consistent with
each other. However, where there are inconsistencies, the U.S. law
shall control within the United States unless the international
law is considered self-executing, i.e. containing a provision for
the immediate application of the law upon its adoption. Though the
United States is a signatory to the Berne convention, Berne has
been declared both by Congress and judges not to be a
self-executing treaty.
123 This means that
absent enabling national legislation, any conflict between the
international and domestic law will be resolved according to the
U.S. domestic law.
124 This explains why
TRIPs implies panel proceedings under the DSU to correct U.S.
breaches of its treaty duties.
For this reason, TRIPs
clearly does not trump domestic copyright law within U.S. borders.
125
However the TRIPs enforcement mechanism (the DSU--of the WTO)
means that TRIPs will slowly, gradually, and inevitably, force the
United States to incorporate and apply the Berne Convention in its
domestic law--though not without strife.
Some commentators have
argued that TRIPs should give deference to cases of first
amendment “free speech” and permit national judges to make
determinations as to the applicability of TRIPs.
126
Given the scope and intensity of conflict in the domain of IP,
such recommendations are utopian. If such a policy could be
implemented, however, it would serve to help bring about the
necessary harmonization of international IP law through
transposing the U.S. common law doctrine of fair use into the
field of international law.
*224 Because fair use as currently understood and
applied is inconsistent with TRIPs, we will probably see a case
before the WTO which would litigate section 107(c) of the U.S.
Copyright Act.
127 Given the unfavorable
decision before the WTO regarding 110(5) of the U.S. Copyright
Act, it is conceivable that the United States will be forced to
abandon the fairness doctrine. However de facto compliance with
TRIPs via judicial reinterpretation of fair use would be
sufficient to meet U.S. treaty obligations under TRIPs.
128
Such a reinterpretation is a necessary precondition to the
transposition of the fair use doctrine to international law
because it is highly unlikely that U.S. trading partners will
accept a double standard which works to give the United States an
unfair competitive advantage. A fair use exception to TRIPs that
considers authors' moral rights would also be consistent with
monist theories of international law. While the United States is a
dualist system, many other states are monist. Thus, by applying
the same standard within and outside of the U.S.--a fair use
doctrine which integrates authors' moral rights--the United States
would be able to more easily transpose the doctrine into
international law to the benefit of consumers everywhere.
V. Conclusion: Can Fair Use and TRIPs Be Harmonized?
If the U.S. doctrine
of fair use, at least as presently interpreted, is inconsistent
with TRIPs, as asserted by some,
129 what remains of the
freedom of information? As noted earlier, Berne does provide a
number of provisions that evince the same concern which is the
foundation of the common law doctrine of fair use, namely freedom
of information. Freedom of information interests are asserted in
cases of teaching
130 and also for current
news events.
131 It is even possible
to argue that satires and parodies are not “adaptations.”
Ordinarily, Article 12 of the Convention requires authorization
for adaptations--but if parodies and satires are not adaptations
then they would be freely produceable. Because the right of parody
is broader in the United States than elsewhere,
132
if satire and parody are not adaptations, then the permissive U.S.
standard would prevail, though only within the United States. This
is only a potential exception, but it could be found if judges
choose to exercise a broad, creative interpretation.
The strongest argument
that Berne includes its own fair use exceptions is Article 9(2),
which permits local legislation for reproduction where such does
not interfere with the author's interests. Here we see an economic
interest balancing
*225 test similar to that used in fair use, but with
the interests extended to include the moral right of the author to
the integrity of their work. Thus, these provisions of Berne could
be used to justify a modified fairness doctrine which would
consider not only an author's economic rights, but also their
right to the integrity of their personality (droit moral) and the
work which it expresses.
Additional arguments
for the existence of an international law of fair use are revealed
within the TRIPs convention itself. One example is the WTO panel's
allowance of de minimis exceptions to copyright.
133
As to patent, TRIPs recognizes that patents should not impair the
advance of technology; and consequently, that patents should not
cover certain acts.
134 Article 30 of TRIPs
also provides limited exceptions to a property holder's rights;
135
and Article 30 parallels Article 13.
136
Therefore, through a
wholistic interpretation of all existing legislation, both at the
national and international level, it would be possible to
interpret and develop an international law of fair use. Such
creative interpretation would obviate the attempts to create a
dual standard of free domestic/corporate information and
proprietary foreign/consumer information. An international fair
use law would thereby better serve the interests of consumers
because lower entry costs would encourage wealth creation and
competition rather than merely reallocation of existing wealth. In
other words, the free market goals of competition and
entrepeneurialship and the goal of consumer satisfaction are best
served by policies which discourage monopolies of information--
particularly when held by large monopolistic or monopolistic
firms.
In conclusion, freedom
of information in a variety of fields favors American IP companies
at the expense of their trading partners. Because of this
inconsistency, U.S. IP law violates the spirit, and probably the
letter, of the TRIPs agreement. However, the optimal solution in
terms of consumer welfare is not to extend patent law protection
of software to the laws of APEC members and the E.U., nor to
eliminate the fair use exception. Rather, the best remedy is to
deny the legality of patent protection for software in the United
States while simultaneously extending the fair use doctrine to the
international arena. That double standard unfairly favors U.S.
companies and risks thereby the ruin of the freedom of information
currently enjoyed by the U.S. consumer under the fair use
doctrine, and the protections offered by an international IP
scheme. Such a solution will not only encourage production and
diffusion of low-cost, high quality information, it will also
eliminate the unfairness of the double standard currently
presented by U.S. law.
a1.
Research Associate and teacher at the Universitat Bremen; J.D. St.
Louis, D.E.A. Nanterre, D.E.A. Paris II, L.L.M., Universitat
Bremen. Mr. Engle is currently working on a doctoral thesis, and
maintains a personal website at
http://www.geocities.com/~engleerica.
1. See Jayshri Srikantiah,
The
Response of Copyright to the Enforcement
Strain of Unexpected Copying Technology, 71 N.Y.U. L. Rev. 1634,
1647 (1996).
2. See Harold Reeves,
Property in Cyberspace, 63 U. Chi. L.
Rev. 761, 799 (1996).
3. See Richard Posner,
Economic Analysis of Law 282 (2d ed. 1977).
4. See generally Bielfield
& Cheeseman, Technology and Copyright Law 42 (1997)
(summarizing the history of copyright law in the common law).
5. See id.
6. See William Patry,
Choice of Law and International
Copyright, 48 Am. J. Comp. L. 383, 387 (2000) (noting that
U.S. copyright law preempts state law).
7. See
17
U.S.C.S. § 104(a) (2002).
8. Prior to 1998, the
duration was life of the author plus fifty years. See id. § 302
(2002); see also Cooter & Ullen, Law and Economics 135 (2000).
9. See
17
U.S.C.S. § 105 (2002).
10. See Keith Aoki,
Neocolonialism, Anticommons Property, and
Biopiracy in the (Not-So-Brave) New World Order of International
Intellectual Property Protection, 6 Ind. J. Global Legal Stud.
11, 36-37 (arguing that “[i]n many ways, our current
conception of the public domain is that nobody affirmatively owns
public domain materials. It is this unowned characterization that
is somewhat at odds with a characterization of the public domain
of intellectual materials as a commons”).
11. See
Geer
v. Connecticut, 161
U.S. 519 (1896).
12. See id.
13. See Black's Law
Dictionary 1106 (5th ed. 1979).
14. See Bielfield &
Cheeseman, supra note 4, at 61 et seq. (devoting several chapters
to discussing the concept of fair use).
15. See generally
Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841);
DanThu Thi Phan,
Will Fair Use Function on the Internet?,
98 Colum. L. Rev. 169 (1998).
16. See Srikantiah, supra
note1, at 1658.
17. See Wendy Gordon,
Fair Use As Market Failure: A Structural
and Economic Analysis of the Betamax Case and Its Predecessors,
82 Colum. L. Rev. 1600 (1982).
18. See Srikantiah, supra
note 1, at 1647.
19. See Donald Johnston,
Copyright Handbook 88 (1978).
20. Mathematically, that
position can be expressed as: L = f(P), where L is law and P is
productivity.
21. See generally Jeffrey
H. Brown, They Don't Make Music Like They Used To, 40 ASCAP
Copyright L. Symp. 195 (1997) (discussing “sampling” in the
musical context).
22. See Mathew Africa,
The
Misuse of Licensing Evidence in Fair Use
Analysis: New Technologies, New Markets and the Courts, 88 Cal.
L. Rev. 1145, 1160 (2000).
23. See J. Dianne Brinson
& Mark F. Radcliffe, Intellectual Property Law Primer for
Multimedia Developers (1994), at http://
www.timestream.com/stuff/neatstuff/mmlaw.html
(last visited
**
Mar. 13, 2002) (copy on file with The Transnational Lawyer).
Regarding the fourth factor of the fair use analysis, see Africa,
supra note 22, at 1148, 1154 (commenting that “[t]he market
affects analysis of fair use is criticized as circular;
essentially every instance of fair use implies the existence of a
market since the user could have purchased the right to use. The
court can always find a market, namely in the person alleged to
have infringed the copyright”).
24. See Africa, supra
note 22, at 1149.
25. This argument
requires that one understand that contingent truth is only
potentially true depending upon circumstances, whereas necessary
truths are true in all times and places.
26. A post-modernist
paradox: if no truth exists, how can the truth that there be no
truth exist? This alone should demonstrate the flaw of
epistemological nihilism and/or moral relativism.
27. Though the statement
“the abuse of formal logic can lead to injustice” is probably
empirically true, it is not empirically true that “all formal
logic is manipulable indeterminate and its application therefore
leads to injustice.” Statements like “all formal logic is
necessarily manipulable, indeterminate, and therefore its
application leads to injustice” are indeed ambiguous, but that
ambiguity is due to the ambiguity of language and not mathematics.
Mathematically, the formula: P X: X = (M § I)--> ~J is
perfectly unambiguous and will evaluate to ~J if either M or I or
both are true. In pseudo-code this can be expressed: if (m=1 or I
=1), then L:=0.
28. These facts help to
explain some of the paralysis and cacophony in contemporary legal
theory, especially in contemporary American legal theory.
29. See Cooter &
Ullen, supra note 8, at 128-29, 135-36 (2000) (thoroughly
discussing economics and the law on copyright); see generally
Posner, supra note 3.
30. See Africa, supra
note 22, at 1150 (asserting that the fair use guidelines are not
broad enough).
31. See GNU's Not Unix!,
at
http://www.gnu.org/
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer) (stating
that “GNU is a recursive acronym for ‘GNU's Not Unix’; it is
pronounced ‘guh-NEW”’). Open source licenses essentially provide
end users cost-free software including the software's source code,
usually under the terms of the GNU General Public License (GPL).
Unix is an open source operating system developed originally by
the U.S. Government. It is the core of Linux, a freeware operating
system alternative to Windows or MacOS. The plural is unices. See
Linux Online!, at
http://www.linux.org/ (last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer). The
fact that businesses pay for software when cost-free substitutes
are available shows that market actors are either not in fact
rational, or that information is not a perfectly distributed
good--and possibly both.
32. See Investor Home,
The Efficient Market Hypothesis & The Random Walk Theory, at
http://www.investorhome.com/emh.htm
(last visited
**
Mar. 13, 2002) (copy on file with The Transnational Lawyer)
(giving a general overview of EMH as well as links to EMH
articles).
33. See Worapot
Ongkrutaraksa, Efficient Capital Markets: A Review of Literature,
at http://
www.geocities.com/WallStreet/Exchange/3663/Worapot09.html
(last visited
**
Mar. 13, 2002) (copy on file with The Transnational Lawyer).
34. See Joint Impact,
Transaction Cost Economics--A Summary, at
http://members.ozemail.com.au/~>cgold/transaction%costs.htm
(last visited
**
Mar. 13, 2002) (copy on file with The Transnational Lawyer).
35. See The Electric Law
Library, at http://
www.lectlaw.com/def/c161.htm
(last visited
**
Mar. 13, 2002) (copy on file with The Transnational Lawyer).
36. See generally R.A.
Weinknecht, Grundlagen des nationalen und internationalen
Urheberrechts (in German), at
http://www.haagen.de/_themes/copyrights/grundlagen_urheberrecht.htm
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
37. See generally Carl
Settlemeyer, Between Thought and Possession-Artists' “Moral
Rights” and Public Access to Creative Works, 41 ASCAP Copyright L.
Symp. 370 (1997) (discussing an author's moral rights under
American law).
38. See Ruth Okedji,
Towards an International Fair Use
Doctrine, 39 Colum. J. Transnat'l L. 75, 94 (2000).
39. An approximate
translation of droit de la propriété littéraire, intellectuelle et
industrielle would be the right of literary, industrial and
intellectual property, which is conceptualized as several
different property rights--with appurtenant moral
rights--corresponding roughly to copyright, patent, trademark,
trade secret and designs. Urheberrecht literally means “the right
of priority” and is not, strictly speaking, conceptualized as a
property right which would be (Eigentum, and here intellectual
property, i.e. Geisteseigentum) but rather as a right of
personality. The fact that intellectual property protects moral as
well as economic interests is also true in French law--as
reflected in the term droit moral. French and German law both
offer artists and writers the protection of the moral integrity of
their work.
40. See Michael Lehmann,
TRIPs, The Berne Convention, and Legal
Hybrids, 94 Colum. L. Rev. 2621, 2627 (1994).
41. This is, of course,
the general critique of legal realism: law is only the mask of
power.
42. See Okedji, supra
note 38, at 172.
43. See Carlos Correa,
Intellectual Property Rights, The WTO and Developing Countries 137
(2000).
44. The U.S. copyright
law provides for limited rights of an author, which are similar to
droit moral. These rights include the obligation of citation and
that his work not be mutilated. However, these rights are
alienable. See
17 U.S.C. §106(A)(a) (2002).
45. See id. For a brief
explanation of the difference, see, e.g., Betsy Rosenblatt, Moral
Rights Basics, at http://
cyber.law.harvard.edu/property/library/moralprimer.html
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer).
Essentially, moral rights protect the integrity of the author's
work and the right of the author to associate their name with
their work. As such, they are a personal rather than a property
right.
46. See Christine Chinni,
Droit d'auteur Versus the Economics of Copyright, 40 Copyright L.
Symp. (ASCAP) 241 (1997) (discussing the economic rationale of the
common law versus the moral rights perspective of continental
law).
47. See Wendy Gordon,
A Property Right in Self Expression, 102
Yale L. J. 1533, 1535 (1993).
48. See
id. at 1536.
49. See, e.g.,
San Francisco Arts & Athletics, Inc. v. United
States Olympic Comm., et al., 483 U.S. 522 (1987); see
also
FW/PBS, Inc., DBA Paris Adult Bookstore II,
et al. v. City of Dallas, et al., 493 U.S. 215 (1990).
50. See
Rubin
v. Coors Brewing Co., 514 U.S. 476 (1995).
51. See Gordon, supra
note 47, at 1536.
52. See Okedji, supra
note 38, at 172.
53. See Carolyn McColley,
Limitations on Moral Rights in French Droit d'Auteur, 41 Copyright
L. Symp. (ASCAP) 422 (1997) (explicating the rationale of droit
moral).
54. See Okedji, supra
note 38, at 172.
55. See
17
U.S.C. § 106(a) (2002) (incorporating limited rights of
droit moral).
56. Berne Convention for
the Protection of Literary and Artistic Works, Sept. 9, 1886,
revised in
Paris on July 24, 1971, 828 U.N.T.S. 221
[hereinafter Berne Convention].
57. For links (in German)
to the various treaties, see Juristisches Internet-Projekt
Saarbrücken, Abteilung Urheberrecht, “Normen,” available at
http://www.jura.uni-sb.de/urheberrecht/normen/intver/
(last visited Apr. 28, 2002) (copy on file with The Transnational
Lawyer).
58. Rome Copyright
Convention of 1928, available at http://
www.eff.org/pub/Intellectual_property/bern_convention.treaty
(last visited Apr. 28, 2002) (copy on file with The Transnational
Lawyer).
59. For example, the
Paris Convention of 1971 extends the Berne regime to industrial
property, such as patents. See
Paris Convention (in
English), available at
http://www.wipo.org/eng/iplex/wo_par0_.htm
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer). The
Paris Convention also extends the Berne regime to former colonies.
See Okedji, supra note 38, at 106.
60. The WIPO Copyright
Treaty is also implemented under Berne. See WIPO Copyright Treaty,
Art. 1, available at
http://www.wipo.org/eng/diplconf/distrib/94dc.htm (last
visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
61. WIPO Convention,
available at http://
www.wipo.org/members/convention/index.html
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
62. See Okedji, supra
note 38, at 105.
63. See id. at 106; see
also Tyler Newby,
What's Fair Here is Not Fair Elsewhere,
51 Stan. L. Rev.1633, 1645 (1999).
64. See Okedji, supra
note 38, at 104.
65. See WIPO,
International Protection of Copyright and Neighboring Rights, at
http://www.wipo.org/eng/general/copyrght/bern.htm
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
66. This principle has
been carried forward with TRIPs. See id.
67. For an excellent
summary of droit moral, see Karine Arnault, Le Droit Moral en
Droit Communautaire dans la société de l'information, at
http://perso.wanadoo.fr/karine/memoires/memoire2.html>#_Toc450459006
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
68. See U.S. Copyright
Office, Library of Congress, Circular 14: Derivative Works, at
http://www.freeadvice.com/gov_material/copyright-office-derivative-works-circular-14.htm
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
69. See Newby, supra note
63, at 1646.
70. See id.
71. See id.
72. See id. at 1647.
73. See Abbott, et al.,
The International Intellectual Property System 591 (1999).
74. See id. at 303.
75. See id. at 697.
76. See id.
77. See id. at 303.
78. See id. at 322.
79. See Aoki, supra note
10, at 13 (arguing “[f]irst, one should note that there is a deep
contradiction between the definition of an ‘intellectual property
right,’ that is, a state-backed monopoly handed out to individuals
or firms, and the popular neoliberal vision that valorizes
“privatization” and free market economics”).
80. See Abbott et al.,
supra note 73, at 316.
81. See generally
Jonathan A. Friedman & Francis M.
Buono, Using the Digital Millennium Copyright Act to Limit
Potential Copyright Liability Online, 6 Rich. J. L. & Tech.
1 (Winter 1999-2000), at
http://www.richmond.edu/~jolt/v6i4/article1.html
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer)
(focusing on OSP liability under DMCA).
82. See Abbott et al.,
supra note 73, at 909, 913.
83. See id. at 913.
84. See id. at 317.
85. See id. at 591.
86. See id. at 353.
87. See id. at 353.
88. See Alex Morrison,
Hijack on the road to Xanadu: The Infringement of Copyright in
HTML> Documents via Networked Computers and the Legitimacy of
Browsing Hypermedia, J. Info. L. & Tech. (1999), at http:/
elj.warwick.ac.uk/jilt/99-1/morrison.html
(last visited
**
Apr. 28, 2002) (copy on file with The Transnational Lawyer).
89. See Newby, supra note
63, at 1645.
90. See Patry, supra note
6, at 485 (noting that the United States attempts to impose its
unilateral will by insisting on the autonomy of its laws, despite
adhesion to the Berne Convention).
91. See Abbott et al.,
supra note 73, at 719.
92. See Okedji, supra
note 38, at 83.
93. See id. at 82.
94. C is a computer
programming language which compiles instructions from a
pseudo-English dialect into machine code. The syntax of C is the
core of all popular contemporary programming languages--Java,
javaScript and C++ are derived from C. C is the successor to B and
the predecessor to C++. Ironically, the C vocabulary of Newspeak
in George Orwell's “1984” describes scientific and technical terms
(Orwell, 1984: Appendix. The Principles of Newspeak). Doubleplus
is Newspeak for intensification, as in “doubleplus good”--very
good. The successor to C is C++, because ++ is the incremental
instruction in C which is, however, pronounced plus plus.
95. See Jonathan Band,
The Digital Millennium Copyright Act, at http://
www.arl.org/info/frn/copy/band.html
(last visited
**
March 13, 2002) (copy on file with The Transnational Lawyer)
(citing 1201(f) of the DMCA).
96. The issue is complex.
For a brief general overview, see generally Cheryl Hill, Software
Protection and Japan's Copyright Law, Computing Japan, June 1995,
available at
http://www.cjmag.co.jp/magazine/issues/1995/jun95/06piracy.html
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer).
Furthermore, recent United States decisions involving computer
software have deviated from traditional copyright theory in
protecting technological ideas and methodologies. It is too early
to predict whether Japanese courts will follow this protective
trend for software. The express statutory provisions relating to
programs are a strong basis for limiting protection of programs.
On the other hand, the Operating System case seems to indicate a
highly protective attitude by the Intellectual Property Division
of the Tokyo District Court. See generally Karjala, The First Case
on Protection of Operating Systems and Reverse Engineering of
Programs in Japan, 10 Eur. Intell. Prop. Rev. 172 (June 1988).
In fact, “[t]he
only court judgement in Japan on reverse engineering is a the case
of Shuwa Co. Ltd. vs. Microsoft Corp. The court ruled that the
defendant's act of replacing the plaintiff's object program with
hexadecimal code and the replication of the plaintiff's object
program code is an infringement of the Copyright Law.” Kazuyoshi
Nagato, Legal Protection of Software: Reverse Engineering Under
the Japanese Law, at
http://www.naga.to/knagato/summary.html
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer). The
Shuwa decision is available on-line in Japanese at
http://www.isc.meiji.ac.jp/diff/sumwel_h/doc/juris/tdcj-s62-1-30.htm
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer). A
related case available in English held in a similar vein:
In finding that a
program infringes the copyright of a program work, it is necessary
that the combinations of instructions in the program work have
portions that can be found creative, and that the combinations of
instructions in the later created program be similar to those in
the program work in the portions that can be found creative.
Because the symbols expressing programs are extremely limited and
the relevant system (grammar) is rigorous, any attempt to make a
computer functional so as to achieve a certain result in a more
effective way will necessarily lead to many similar combinations
of instructions. Therefore, we must be careful in finding
infringement of a program copyright. The ‘processing flow’ in a
program, which, being itself an algorithm, i.e., a 'solution' as
provided for in Art. 10 (3) (iii)(1)of the Copyright Law, is a
portion that is not protected as a work and therefore has no
relevance to the creativity of the program.
Masao Yoshida,
Creativity and the Scope of Protection of Computer Programs, at
http://www.softic.or.jp/en/cases/yoshida-art.html#chuu1
(last visited
**
May 5, 2002) (copy on file with The Transnational Lawyer) (quoting
the decision of the Tokyo High Court (Case No. (ra) 327, 1989,
Tokyo District Court Case No. (yo) 2531 at 2551).
97. See Newby, supra note
63, at 1658.
98. See Correa, supra
note 43, at 136.
99. See Newby, supra note
63, at 1654.
100. See id. at 1653.
101. See Correa, supra
note 43, at 133.
102. See id. at 199.
103. See id.
104. See Lehmann, supra
note 40, at 2625.
105. See
17
U.S.C.S. §102 (2002); see also Patry, supra note 6, at
387 (acknowledging that the U.S. copyright regime only permits the
copyright of “original” works).
106. See Ralph C. Losey,
Practical and Legal Protection of Computer Databases, at
http://FloridaLawFirm.com/article.html#copy
(last visited
**
March 13, 2002) (copy on file with The Transnational Lawyer).
107. See Lehmann, supra
note 40, at 2629.
108. See Band, supra
note 95.
109. See Lehmann, supra
note 40, at 2626.
110. See Mark A. Lemley,
Convergence in the Law of Software
Copyright?, 10 Berkeley Tech. L.J. 1, available at
http://www.law.berkeley.edu/journals/btlj/articles/10_1/Lemley/html/reader.html
(last visited
**
March 13, 2002) (copy on file with The Transnational Lawyer).
111. See Lehmann, supra
note 40, at 2624.
112. See Esslinger &
Betten, Patentschutz in Internet, 1 Computer und Recht 18 (2000)
(arguing that TRIPs permits software patents while admitting that
the BRD does not).
113. See generally
Maureen O'Rourke, Toward a Doctrine of Fair Use in Patent Law, 100
Colum. L. Rev. 1179 (2000).
114. See id.
115. See id. at 1180.
116. See Abbott et al.,
supra note 73, at 65.
117. See Kluwer, The
International Intellectual Property System 185, 347 (1999).
118. See Okedji, supra
note 38, at 87.
119. See id. at 160.
120. See id. at 89.
121. See id. at 168-169.
122. See David Friedman,
Standards As Intellectual Property: An Economic Approach, at
http://www.david.friedman.com/Academic/Standards/Standards.html
(last visited Apr. 28, 2002) (copy on file with The Transnational
Lawyer); see generally Friedman, et. al, Some Economics Of Trade
Secret Law, 5 J. Econ. Persp. 61 (1991).
123. See Okedji, supra
note 38, at 138, 140, 145.
124. See
17
U.S.C. § 104(c) (2002) (expressly denying any rights
under the Berne Convention).
125. See Okedji, supra
note 38, at 142.
126. See Newby, supra
note 63, at 1662.
127. See
17
U.S.C. § 100 et. seq. (2001).
128. See Okedji, supra
note 38, at 131.
129. See id. at 91.
130. See Berne
Convention, supra note 56, art. 10(2); but see id. art. 11 bis(1).
131. See id. arts. 2
bis(2), 10bis.
132. See Okedji, supra
note 38, at 134.
133. See id. at 147.
134. See O'Rourke, supra
note 113, at 1201.
135. See id.; see also
Correa, supra note 43, at 208.
136. See O'Rourke, supra
note 113, at 1202.