Intellectual what?
"Under the law, intellectual property is treated as if it were property."
Under Brazilian Law, it is a reasonable proposition - "as if it were property". That's to say - it is _not_ property at all, but for a legal fiction it is to be treated as such, to the limits and purposes of that fiction...but no further. Licenses are dealt in the IP code in an extremely short fashion; therefore, the Civil Code rules on lease apply. That's just application of the principle jus abhorret vacuum. Exclusive rights on non-self-equal goods are similar enough to exclusive rights on self-equal goods to allow for analogical rules to be used. The right to keep the asset on which crucially necessary improvements were made could therefore be applied to licensed patents, albeit the silence of the IP code. The common economic and equitable base seems to grant that.
But you can grant licenses to multiple persons; oh, yes, you can lease the same apartment to many persons, but some annoyance would result to at least some of the shier tenants. Analogy is a useful tool, but is just a makeshift appliance.
Thursday, February 20, 2003
Tuesday, February 18, 2003
Court and Government decisions
Due to a very imperfect wording of the 1998 Brazilian Copyright Law, court decisions and other official legal documents have been argued as being held in property by their authors. In one egregious case, the Law School of which I am the dean has been successfully sued by the subscriber of a officially published legal opinion by a Brazilian SEC house attorney, utilized for straight academic purposes during a short term course. The opinion has a mandatory, that's to say, normative, character and was collected from SEC's website.
Should this trend go on, legislators would be able to dispense with their salaries, and live on the proceeds of their good works. And so would judges.
Due to a very imperfect wording of the 1998 Brazilian Copyright Law, court decisions and other official legal documents have been argued as being held in property by their authors. In one egregious case, the Law School of which I am the dean has been successfully sued by the subscriber of a officially published legal opinion by a Brazilian SEC house attorney, utilized for straight academic purposes during a short term course. The opinion has a mandatory, that's to say, normative, character and was collected from SEC's website.
Should this trend go on, legislators would be able to dispense with their salaries, and live on the proceeds of their good works. And so would judges.
Public domain - property rights assured to the public?
A roman system jurist would probably distinguish between property rights enjoyed by the public at large and liberties. Liberties are however possession-protected, as anyone can (in some jurisdictions) claim possession (even not exclusive...) of a throughway if a squatter prevents the liberty to use it.
Therefore, possession, as the free use of a public domain utility may be recognized as an economic right even though property does not actually falls into the hands of the public at large.
This analysis of public domain (on American legal concepts) has been very convincingly advanced by the market failure theorists.
A roman system jurist would probably distinguish between property rights enjoyed by the public at large and liberties. Liberties are however possession-protected, as anyone can (in some jurisdictions) claim possession (even not exclusive...) of a throughway if a squatter prevents the liberty to use it.
Therefore, possession, as the free use of a public domain utility may be recognized as an economic right even though property does not actually falls into the hands of the public at large.
This analysis of public domain (on American legal concepts) has been very convincingly advanced by the market failure theorists.
Public domain as a right of humanity
The problem, as I see, is not the rights of man. Is one of vested rights. Given the significant difference between legal systems, on most roman tradition systems, a right of free use subject to a certain delay of time is a vested right albeit not immediately enforceable (as to the free use). All the means to preserve the flow and end of time as assured at moment zero are however allowed.
Once a exclusive right is acquired, subject to a definite time, all the persons excluded from the enjoyment by the acquisition have a rightful expectation of free use when the time expires. If such expectation is assimilable to an easement or a vested right is certainly a question of jurisdiction. But only so.
I notice that in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225 (1964), the court said:
"During that period of time no one may make, use, or sell the patented product without the patentee's authority. But in rewarding useful invention, the "rights and welfare of the community must be fairly dealt with and effectually guarded. To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. (...)
Ø when the patent expires the monopoly created by it expires, too, and the right to make the article - including the right to make it in precisely the shape it carried when patented - passes to the public.
The problem, as I see, is not the rights of man. Is one of vested rights. Given the significant difference between legal systems, on most roman tradition systems, a right of free use subject to a certain delay of time is a vested right albeit not immediately enforceable (as to the free use). All the means to preserve the flow and end of time as assured at moment zero are however allowed.
Once a exclusive right is acquired, subject to a definite time, all the persons excluded from the enjoyment by the acquisition have a rightful expectation of free use when the time expires. If such expectation is assimilable to an easement or a vested right is certainly a question of jurisdiction. But only so.
I notice that in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225 (1964), the court said:
"During that period of time no one may make, use, or sell the patented product without the patentee's authority. But in rewarding useful invention, the "rights and welfare of the community must be fairly dealt with and effectually guarded. To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. (...)
Ø when the patent expires the monopoly created by it expires, too, and the right to make the article - including the right to make it in precisely the shape it carried when patented - passes to the public.
Can you establish a registration-for-prorogation requirement in copyright?
I would not think Berne plus TRIPs would be violated. Once the minimum term provided by such Agreements are complied with, any further extensions would arguably be free from their scope. See Article 5, paragraph (1) of Berne (...as well as the rights specially granted by this Convention). Convention plus TRIPs specially grants to all a term, with all the trimmings, including the no-formality rule. Beyond that, national legislation is on a freehold.
Therefore, the registration-for-extension (in excess of TRIPs minimum term) requirement would not be violative. On the other hand, the first registration is already infringing....except if we accept the convenient but dubious interpretation that U.S. Laws can impose locally the registration that would be void under Berne.
I would not think Berne plus TRIPs would be violated. Once the minimum term provided by such Agreements are complied with, any further extensions would arguably be free from their scope. See Article 5, paragraph (1) of Berne (...as well as the rights specially granted by this Convention). Convention plus TRIPs specially grants to all a term, with all the trimmings, including the no-formality rule. Beyond that, national legislation is on a freehold.
Therefore, the registration-for-extension (in excess of TRIPs minimum term) requirement would not be violative. On the other hand, the first registration is already infringing....except if we accept the convenient but dubious interpretation that U.S. Laws can impose locally the registration that would be void under Berne.
Why Berne Convention has chosen a 50 year term for copyright
Reading the very sensible Guide to Berne Convention by Masouyé, WIPO's Official book on the convention:
7.4. It is not merely by chance that fìfty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations. Clearly the justice of the period varies; it depends always on the length of the author's life and the difference between cases in which he is cut off in his youth or becomes a centenarian cannot be avoided. But it is generally felt normal to add to the author's lifetime a period long enough to allow his heirs to profit from his work while they remember him. Experience has shown that, when an author is dead, his works sometimes fall into a sort of limbo from which they may or may not emerge some time later. In any case, apart, perhaps, from books and certain dramatico-musical works. modern means of exploiting works often make the length of the term of copyright of little financial importance to the users: the latter negotiate blanket licences with the authors' representatives to use large repertoires and normally the lapse into the public domain of any given work makes little difference to the amount they pay. For all these reasons, this minimum period laid down in the Convention seems to provide a fair balance between the interests of authors and the need for society to have free access to the cultural heritage which lasts far longer than those who contributed to it.
Reading the very sensible Guide to Berne Convention by Masouyé, WIPO's Official book on the convention:
7.4. It is not merely by chance that fìfty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations. Clearly the justice of the period varies; it depends always on the length of the author's life and the difference between cases in which he is cut off in his youth or becomes a centenarian cannot be avoided. But it is generally felt normal to add to the author's lifetime a period long enough to allow his heirs to profit from his work while they remember him. Experience has shown that, when an author is dead, his works sometimes fall into a sort of limbo from which they may or may not emerge some time later. In any case, apart, perhaps, from books and certain dramatico-musical works. modern means of exploiting works often make the length of the term of copyright of little financial importance to the users: the latter negotiate blanket licences with the authors' representatives to use large repertoires and normally the lapse into the public domain of any given work makes little difference to the amount they pay. For all these reasons, this minimum period laid down in the Convention seems to provide a fair balance between the interests of authors and the need for society to have free access to the cultural heritage which lasts far longer than those who contributed to it.
On the tax incentive to promote donating works to public domain
The issue is lost when you suggest that a tax incentive should be given to induce authors to donate works to public domain. Economic analysis (it would seem to me) would think that proposal quite a paradox.
The Government incentive already exists. Copyright in itself is an artificial (although necessary) Government interventive action to induce authors to create. If public interest advises that works should remain in public domain, just cease or limit the incentive already granted. Can you imagine a Government subsidy to plant wheat, and a second one to pay for the fuel for burning the same wheat? Oh, that happened in Brazil with coffee, but then , as Charles de Gaule said, Brazil is not a serious country.
The issue is lost when you suggest that a tax incentive should be given to induce authors to donate works to public domain. Economic analysis (it would seem to me) would think that proposal quite a paradox.
The Government incentive already exists. Copyright in itself is an artificial (although necessary) Government interventive action to induce authors to create. If public interest advises that works should remain in public domain, just cease or limit the incentive already granted. Can you imagine a Government subsidy to plant wheat, and a second one to pay for the fuel for burning the same wheat? Oh, that happened in Brazil with coffee, but then , as Charles de Gaule said, Brazil is not a serious country.
Tangible property and intangibility - a metonymic property
"When property is SOLD, the owner does not still have it. When you SELL your creative works to the public via publication, copyright law allows you to continue to hold your property (for all practical purposes) for your entire lifetime plus 70 years."
There is a small precision to be made. "When property is SOLD, the owner does not still have it. " This is a quite precise statement. "When you SELL your creative works to the public via publication..." Sell" in this context is a metonym. Is a loose term used outside the field of law to denote other things not germane to the legal concept of selling. Like "selling the presidential candidate's image", what is something that is sold but not necessarily bought.
Selling is something that requires res, pretium et consensum, agreement and price, but most of all requires the existence of a thing - a certain and determinable thing, unique and equal to itself. Creative works (as Blackstone puts it) exists in contemplation, and lack the uniqueness plus self-equality properties.
"When property is SOLD, the owner does not still have it. When you SELL your creative works to the public via publication, copyright law allows you to continue to hold your property (for all practical purposes) for your entire lifetime plus 70 years."
There is a small precision to be made. "When property is SOLD, the owner does not still have it. " This is a quite precise statement. "When you SELL your creative works to the public via publication..." Sell" in this context is a metonym. Is a loose term used outside the field of law to denote other things not germane to the legal concept of selling. Like "selling the presidential candidate's image", what is something that is sold but not necessarily bought.
Selling is something that requires res, pretium et consensum, agreement and price, but most of all requires the existence of a thing - a certain and determinable thing, unique and equal to itself. Creative works (as Blackstone puts it) exists in contemplation, and lack the uniqueness plus self-equality properties.
Idea and expression in science
"at an epistemological level, scientists are concerned not with
facts, but with the relationship between facts. That makes it very easy
to blur idea/expression"
Granted that distinguishing idea and expression is not easy at all times, relations between facts is not more expression than the facts themselves. Epistemologically, res ipsa loquitur, or more precisely, things relate themselves; even though the relations conceived originally - fictionally, if you want, or hypothetically - by scientists may _have_ an expression deriving from the creator's ingenuity, they are not expressions by themselves. Especially if they are real relations and not just fancy hypothesis.
But the same goes as to non-scientific works. Music is by definition relational; either as relations in simultaneity (harmony or counterpoint) or in time (melody), the effects of that art are created by the effect of moving or boring relations of acoustic and chronological relations. Composing is weaving such relations from the facts of sound and time. However (and this is the point), neither the isolated relations (for instance, the Barrabas chord in Bach) nor the extended relations held a thematic material are protected on a exclusive basis. A theme, or musical idea, is (with all due care with excessive extension of this taking and reasonableness of such utilization) is liable to be picked and reutilized by other creators. Composing upon a theme from other authors is a time-honored usage of the music world. And this happens whether or not the theme originally created is in public domain.
"at an epistemological level, scientists are concerned not with
facts, but with the relationship between facts. That makes it very easy
to blur idea/expression"
Granted that distinguishing idea and expression is not easy at all times, relations between facts is not more expression than the facts themselves. Epistemologically, res ipsa loquitur, or more precisely, things relate themselves; even though the relations conceived originally - fictionally, if you want, or hypothetically - by scientists may _have_ an expression deriving from the creator's ingenuity, they are not expressions by themselves. Especially if they are real relations and not just fancy hypothesis.
But the same goes as to non-scientific works. Music is by definition relational; either as relations in simultaneity (harmony or counterpoint) or in time (melody), the effects of that art are created by the effect of moving or boring relations of acoustic and chronological relations. Composing is weaving such relations from the facts of sound and time. However (and this is the point), neither the isolated relations (for instance, the Barrabas chord in Bach) nor the extended relations held a thematic material are protected on a exclusive basis. A theme, or musical idea, is (with all due care with excessive extension of this taking and reasonableness of such utilization) is liable to be picked and reutilized by other creators. Composing upon a theme from other authors is a time-honored usage of the music world. And this happens whether or not the theme originally created is in public domain.
Quoting Brecht
One enterprising research, but certainly interesting, would be the quantification of identifiable prior-created, unpaid matter in major commercial works. Any doctoral thesis on the matter would be a certain hit. Fantasia and Paul Dukas plus Moussorgsky; all the Grimm's and Perrault's stories for other Disney Creations. Applying the same principles (or ends) supporting Eldred, wouldn't that be a big time theft?
Parodying Brecht, what are small time infringers, compared to a large commercial copyright holder?
One enterprising research, but certainly interesting, would be the quantification of identifiable prior-created, unpaid matter in major commercial works. Any doctoral thesis on the matter would be a certain hit. Fantasia and Paul Dukas plus Moussorgsky; all the Grimm's and Perrault's stories for other Disney Creations. Applying the same principles (or ends) supporting Eldred, wouldn't that be a big time theft?
Parodying Brecht, what are small time infringers, compared to a large commercial copyright holder?
Friday, February 07, 2003
On the enforcement of Copyright Laws in Brazil
At 10:11 06/02/03 +0200, you wrote:
Hi,
May I just add to the comment made by Linda Gruber : "Copyright is not working today as it did initially because more people are breaking the law". One has to look at why this could be happening. Perhaps too many copyright restrictions are encouraging non-compliance. If consumers in developed countries are complaining about copyright restrictions and the term of copyright being too long, think how it affects developing countries.
In most developing countries, there is a high level of illiteracy and dire poverty and many people can't afford to buy food, clothing, basic amenities, let alone buy books and expensive journals to get educated. In most instances, their only means of getting information in their quest for education is via photocopied material. Unfortunately the majority of printed works available are published by international publishers who charge very high prices and very high copyright royalties too, which most developing countries cannot afford. Even if there were funds to pay for copyright fees, the copyright laws themselves are restrictive about multiple copying, who can make copies, etc.
Too many copyright restrictions are making information inaccessible. The more restrictions, the more chance that there will be infringements. In fact, too many restrictions will encourage non-compliance. Although it can't be condoned, how else can they get information? Isn't it better to make it easier for illiterate people to learn to read by making material more available, especially in the public domain? In the end, they will become educated and perhaps buy books one day and even become authors and publishers. If they cannot get material to learn to read, they will never become literate. How will they ever read and understand the Copyright laws!! Let's face it there has to be a better balance - and extension of the copyright term is certainly not providing the balance.
D. Nicholson
South Africa
Echoing Mr. Nicholson's words from the other side of the Atlantic, non compliance tends to increase, not to reduce, when you escalate up the legal constraints without the evidence of social interest in such escalation. In a seminar in our State Supreme Court in August 2001 I asked the public (mostly trial and appellate judges) how many of them has done recently very simple acts like copying a program from TV to VTR for later viewing, or photocopying an article from a law review for their professional use. Under the current Brazilian Law, those acts are not covered by fair usage exemptions. As I expected, the whole audience indicated that at least one of those acts were an everyday occurrence. I informed the learned public they were continuing criminals, according to the very strong but impossible 1998 law.
The fact had some impact on the local press. Some comments reflected that it is unenforceable the law, the meaning of which for the people (and, as then demonstrated) for the courts are at least largely artificial or imported.
If you live along with people that are being benefited by a stepped up law, or has the idea that the rigors of the rule eventually could be as useful for the receiving as to the inflinging end, compliance is easy. When the economy benefited by the increase of rigor is not your economy, even the common sense of wrong is mainly lost. On the other hand, the argument for the maintenance of the source of production (authors must be incentivated to create, Hollywood must get money to pay for improved SciFi tired movies) are lost if the price whereby the cultural products reach the public prevents most of it to enjoy from the creation.
Statutes devised to prescribe far beyond their efficient scope are bad in themselves and damaging to the Law as a whole. Efficiency must be adaptative, and returns must be calculated taking into consideration the optimum level of loss; therefore, Copyright rules in developing countries must conform the actual needs of such country and not the one-size-fits-all system. Publishing industry return expectations must take into account that selling a record at US$ 29.00 in Hannover and Rio de Janeiro must be an easy to figure target but mostly impossible one. Tagging a Rio price to US$ 2.90 - preposterous as it would seem - would ban the pirate street vendors from the peddling areas downstairs. And raise (possibly) the industry's overall income. Stronger Copyright enforcement in Germany would prevent the Gresham's Law effect (IP was invented exactly for that - protecting markets from cheaper lke products, wasn't it?).
Stepping up of rules must be reserved for such countries where copying is just laziness or greed, or where piracy entrepeneurship is rampant. Like Canal Street in New York, where the third world gets its supply of fake Gucci under the indifferent eyes of the zero crime mayors.
This is not third world-type speech. This is just regular Law & Economics rationale. Or at least I think it is.
At 10:11 06/02/03 +0200, you wrote:
Hi,
May I just add to the comment made by Linda Gruber : "Copyright is not working today as it did initially because more people are breaking the law". One has to look at why this could be happening. Perhaps too many copyright restrictions are encouraging non-compliance. If consumers in developed countries are complaining about copyright restrictions and the term of copyright being too long, think how it affects developing countries.
In most developing countries, there is a high level of illiteracy and dire poverty and many people can't afford to buy food, clothing, basic amenities, let alone buy books and expensive journals to get educated. In most instances, their only means of getting information in their quest for education is via photocopied material. Unfortunately the majority of printed works available are published by international publishers who charge very high prices and very high copyright royalties too, which most developing countries cannot afford. Even if there were funds to pay for copyright fees, the copyright laws themselves are restrictive about multiple copying, who can make copies, etc.
Too many copyright restrictions are making information inaccessible. The more restrictions, the more chance that there will be infringements. In fact, too many restrictions will encourage non-compliance. Although it can't be condoned, how else can they get information? Isn't it better to make it easier for illiterate people to learn to read by making material more available, especially in the public domain? In the end, they will become educated and perhaps buy books one day and even become authors and publishers. If they cannot get material to learn to read, they will never become literate. How will they ever read and understand the Copyright laws!! Let's face it there has to be a better balance - and extension of the copyright term is certainly not providing the balance.
D. Nicholson
South Africa
Echoing Mr. Nicholson's words from the other side of the Atlantic, non compliance tends to increase, not to reduce, when you escalate up the legal constraints without the evidence of social interest in such escalation. In a seminar in our State Supreme Court in August 2001 I asked the public (mostly trial and appellate judges) how many of them has done recently very simple acts like copying a program from TV to VTR for later viewing, or photocopying an article from a law review for their professional use. Under the current Brazilian Law, those acts are not covered by fair usage exemptions. As I expected, the whole audience indicated that at least one of those acts were an everyday occurrence. I informed the learned public they were continuing criminals, according to the very strong but impossible 1998 law.
The fact had some impact on the local press. Some comments reflected that it is unenforceable the law, the meaning of which for the people (and, as then demonstrated) for the courts are at least largely artificial or imported.
If you live along with people that are being benefited by a stepped up law, or has the idea that the rigors of the rule eventually could be as useful for the receiving as to the inflinging end, compliance is easy. When the economy benefited by the increase of rigor is not your economy, even the common sense of wrong is mainly lost. On the other hand, the argument for the maintenance of the source of production (authors must be incentivated to create, Hollywood must get money to pay for improved SciFi tired movies) are lost if the price whereby the cultural products reach the public prevents most of it to enjoy from the creation.
Statutes devised to prescribe far beyond their efficient scope are bad in themselves and damaging to the Law as a whole. Efficiency must be adaptative, and returns must be calculated taking into consideration the optimum level of loss; therefore, Copyright rules in developing countries must conform the actual needs of such country and not the one-size-fits-all system. Publishing industry return expectations must take into account that selling a record at US$ 29.00 in Hannover and Rio de Janeiro must be an easy to figure target but mostly impossible one. Tagging a Rio price to US$ 2.90 - preposterous as it would seem - would ban the pirate street vendors from the peddling areas downstairs. And raise (possibly) the industry's overall income. Stronger Copyright enforcement in Germany would prevent the Gresham's Law effect (IP was invented exactly for that - protecting markets from cheaper lke products, wasn't it?).
Stepping up of rules must be reserved for such countries where copying is just laziness or greed, or where piracy entrepeneurship is rampant. Like Canal Street in New York, where the third world gets its supply of fake Gucci under the indifferent eyes of the zero crime mayors.
This is not third world-type speech. This is just regular Law & Economics rationale. Or at least I think it is.
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