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intellectual property overseas - Accretions

Fata Morgana
2004-01-21 23:39
intellectual property overseas
Public
soresore
dag29580863 pointed me to this interesting compilation of research that suggests that patents do more harm than good. I've just skimmed a few of the articles, but they look interesting. He heard of the link at IDLELO, a conference on open source and open content in Africa, which he was attending last week. (I'm trying to get him to put his conference report on his heretofore-empty blog. :~) Speaking of which, gooeyduck should also post about her experiences building a sustainable house in Bluff, Utah - it'd be good publicity, hint hint! :~))

I know a bit about intellectual property in the U.S. from Lessig's books and sundry other articles, but not much about IP elsewhere in the world. In the last lecture of the ICT4B class last semester, Michael Shamos talked about IP in other countries. It was one of my favorite lectures of the semester. Here are my notes from it. They're somewhat disorganized, but I've at least tried to flesh out all of the ideas.
    The first copyright statute was in Britain, in 1710. Parliament's primary objective in this was to take power away from the Crown - before, one had to get a license from the Crown to publish anything, and naturally the Crown wouldn't allow anything seditious to be published. Originally, copyright applied only to books and maps.

    The U.S. Constitution states that "Congress shall have Power ... To promote the Progress of Science and Useful Arts, By securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The one exception to this exclusivity is the government: you can't STOP them from using your copyrighted work, but you can get compensation. In the U.S., copyright is exclusively federal.

    The following are commonly-recognized rights under copyright. The first five are recognized in the U.S.
    • reproduction (copy)
    • distribution of copies
    • creation of derivative works (translations, novel->film, film->novel, etc.)
    • public performance (applied to multimedia displays on the internet)
    • public display
    • integrity against mutilation or destruction (limited in the US; widespread in Europe)
    • resale royalties
    • attribution - right to be given credit
    • withdrawal - right to withdraw work from public circulation
    Copyright does not prevent some activities, commonly called "fair use," which include criticism, comment, news reporting, teaching (including multiple copies for classroom use - but only for discussion IN-class), scholarship, and research (17 u.s.c. 107).

    In the US, the main purpose of copyright is ECONOMIC - to provide income to the copyright owner. Copyright office is part of the Library of Congress, which is bad, because the Library of Congress is supposed to disseminate information, not restrict it. In Japan, copyright is completely different - copyright serves education: copyright office is part of ministry of education, and almost any educational use is permitted.

    The following are commonly-recognized intellectual property rights:
    • you can sue others for damages or prevention of use if they use your intellectual property without permission.
    • intellectual property is local to a country but under "national treatment" foreigners can assert their rights.
    • IP rights are long-lived: 20 years for a patent, 50-70 years (life + 70 in the US) for a copyright, unlimited for a trademark as long as it is in continuous use.
      Treaties should recognize differences in different countries' IP laws, but the differences can be hard to reconcile.

    TRIPS (Trade-Related aspects of Intellectual Property rightS), a WTO treaty, makes signatories promise to recognize other countries' intellectual property rights. If a developing nation doesn't recognize western IP, it can't be a member of the WTO, and may have sanctions levied against it. And in general, developing nations can not afford the royalties of IP: if they don't create something themselves, may have to wait 100+ years to use technology. For developing nations, the best place for IP to be is in the public domain, though this only means "free from intellectual property claims," not necessarily publicly available. There are 49 designated "least developed countries," though some countries we consider underdeveloped, like India, are not on the list.

    Compulsory licensing is when the owner can NOT refuse to license, but the user may have to pay royalties. There are two kinds of compulsory licensing in the U.S., one of which is for sound recordings of songs ("nondramatic musical works"). One just needs to notify the creator, and pay max($0.085, $0.0165*minutes of song) per copy. This sounds un-American to many - the artist loses control, after all! - but it actually benefits the recording industry. In Japan, fees are compulsory, but commissioner decides on a fair royalty. Thus, one can use a work and pay the fee even if the author can't be found. If the royalty rate is reasonable, compulsory licensing is a good way for copyrighted works to get into developing countries.

    public lending right: when books are borrowed from libraries, the author usually receives nothing. This reduces book sales. In the UK, the government provides a fixed annual pool of funds, which is divided up based on the number of times a work is loaned out. In 2003, 4.21p was given per loan of a particular work, with a max. of 6000 pounds. Users don't pay at the library; they pay this use fee through taxes. (Thus, the rich pay most of it.) In Japan, public libraries are new (1970), and they're investigating some sort of public lending right.

    For scientific publications, researchers usually don't profit, nor do reviewers; the only ones who profit are the publishers. Publishers don't contribute to the work at all, but charge huge amounts, limiting dissemination (only some major institutions can afford it). He proposes eliminating publishers by publishing online. The scientific community benefits, because results are publicly available.

    Most books are out-of-print, but are still copyrighted! Of 100 million titles published, 94 million are still in copyright, but only 6 million are currently in print. The ones out of print produce no income for either the author or the publisher. There should be some expiration for the copyrights on works that are out-of-print, or some tax break for putting works in the public domain.

    Issues for developing countries:
    • Role of government, public sources, digital libraries
    • Scientific journals
    • Databases (collections of facts)
    • Distance learning
    • Cultural heritage protection (e.g. Taliban)
    • Genetic, animal, plant resources
    • Patenting of traditional remedies
    • Inexpensive drugs
    • Geographical indications (e.g. Roquefort)
    Our road system is important to our economic health - highways are extremely expensive, and originally created for military purposes after WWII. Generally, there are no tolls on our roads - how can we maintain this and not charge for it? It's paid for by all citizens through taxes. Congress does this because it benefits the public. Why doesn't Congress do this for copyright?

    Wealthy nations will have to bear the cost of disseminating information.
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nikita
hukuma
2004-01-22 08:23 (UTC)
(no subject)
I'm confused: what kind of sound recordings does compulsory licensing apply to? All the music I know costs a lot more than 8.5 cents per song...
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Fata Morgana
chimerically
2004-01-23 01:18 (UTC)
confused too
He said it was for all "nondramatic musical recordings," which included most of what we consider music (but not, say, a poetry reading or play or audio book). The rates he listed were for 2004-2005. ... I'm not sure where this actually comes into play. I've heard the recording industry justify the price of music by citing cost of promotion and distribution. But if this compulsory licensing is actually in practice, what are the court injunctions on file swappers all about? Loss of potential profits? I think someone asked him to clarify all this, but unfortunately I don't have it in my notes and it's been too long for me to remember what he said.
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