Intellectual Property’s Great Fallacy

Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied.

This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.


Access to Knowledge in the Age of Intell…

Access to Knowledge in the Age of Intellectual Property :

“At the end of the twentieth century, intellectual property rights collided with everyday life. Expansive copyright laws and digital rights management technologies sought to shut down new forms of copying and remixing made possible by the Internet. International laws expanding patent rights threatened the lives of millions of people around the world living with HIV/AIDS by limiting their access to cheap generic medicines. For decades, governments have tightened the grip of intellectual property law at the bidding of information industries; but recently, groups have emerged around the world to challenge this wave of enclosure with a new counter-politics of “access to knowledge” or “A2K.” They include software programmers who took to the streets to defeat software patents in Europe, AIDS activists who forced multinational pharmaceutical companies to permit copies of their medicines to be sold in poor countries, subsistence farmers defending their rights to food security or access to agricultural biotechnology, and college students who created a new “free culture” movement to defend the digital commons. Access to Knowledge in the Age of Intellectual Property maps this emerging field of activism as a series of historical moments, strategies, and concepts. It gathers some of the most important thinkers and advocates in the field to make the stakes and strategies at play in this new domain visible and the terms of intellectual property law intelligible in their political implications around the world.”


Googling the Grey: Open Data, Web Servic…

Googling the Grey: Open Data, Web Services, and Semantics :

“Primary data, though an essential resource for supporting authoritative archaeological narratives, rarely enters the public record. Lack of primary data publication is also a major obstacle to cultural heritage preservation and the goals of cultural resource management (CRM). Moreover, access to primary data is key to contesting claims about the past and to the formulation of credible alternative interpretations. In response to these concerns, experimental systems have implemented a variety of strategies to support online publication of primary data. Online data dissemination can be a powerful tool to meet the needs of CRM professionals, establish better communication and collaborative ties with colleagues in academic settings, and encourage public engagement with the documented record of the past. This paper introduces the ArchaeoML standard and its implementation in the Open Context system. As will be discussed, the integration and online dissemination of primary data offer great opportunities for making archaeological knowledge creation more participatory and transparent. However, different strategies in this area involve important trade-offs, and all face complex conceptual, ethical, legal, and professional challenges.”


La déclinaison du droit d’auteur en Euro…

La déclinaison du droit d’auteur en Europe :

“Malgré les vifs débats qui ont eu lieu au cours de cette dernière décennie autour du droit d’auteur européen et de son uniformisation, les acteurs de l’édition ignorent souvent les législations et pratiques contractuelles des autres pays de l’Union. Cette méconnaissance rendait plus que nécessaire une étude que le MOTif a confiée à Laure Pécher et Pierre Astier de l’Agence littéraire Pierre Astier et associés.
Force est de constater que les régimes de droits d’auteur (dispositions législatives et usages) qui organisent la relation entre auteurs et éditeurs varient d’un pays à l’autre.
L’objet de l’étude s’inscrit dans une perspective informative, elle est limité à l’édition de littérature générale et examine les usages dans trois pays européens (Grande-Bretagne, Espagne, Allemagne) outre la France. Le choix s’est porté sur des pays qui offrent des points de comparaison intéressants avec la France.
Parmi les enseignements de l’étude, on note la faible représentation des syndicats et organisations d’auteurs tous pays confondus et les répercusionns néfastes tant pour les auteurs que pour les éditeurs de l’abrogation de la loi sur le prix unique du livre en Grande-Bretagne. S’agissant de la durée de la cession de droits, l’Espagne se singularise avec une durée maximale limitée à 15 ans alors qu’ailleurs elle correspond généralement à la durée de la propriété intellectuelle. Plus que l’opposition entre copyright et droit d’auteur, c’est le refus du législateur britannique d’intervenir dans les relations contractuelles entre auteur et éditeur comme dans toute relation contractuelle d’ailleurs qui éloigne fondamentalement le modèle continental du modèle britannique. S’il est encore tôt pour dresser un tableau des droits numériques, l’étude présente toutefois les débats en cours et établit les premiers constats.”


Open Source Software Libraries : “Open …

Open Source Software Libraries :

“Open source software is not something to be afraid of! It’s software that you can modify, fix, add to, and distribute to others. Benefits are numerous, including having the ability to create good software that works for you and your library, all while paying a fraction of the cost that you might spend on proprietary software. This website introduces librarians to using open source software and provides tips for implementing and evaluating your transition, ideas for funding, and suggestions for open source software to use in your library.”


The Pre-History of Fair Use : “This art…

The Pre-History of Fair Use :
“This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume – the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.

The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.”

Estimating the Economic Impact of Mass D…

Estimating the Economic Impact of Mass Digitization Projects on Copyright Holders: Evidence from the Google Book Search Litigation :
“Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to estimate its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels. Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most-affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact.
The debate surrounding the GBS settlement is important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago.
The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books.”