International Intellectual Property Enforcement - IV
We need to rethink the fair use doctrine by adding transformative works as they have been defined in United States case law to the existing four factors that are already codified, and expand its overall usage, especially in the area of not-for-profit educational endeavors.
[Part IV of the Text for Remarks made at the Piracy and Counterfeiting in a Digital Environment: U.S. and Italian Experiences, U.S. Consulate General Florence, Italy, September 27-28.]
Fifth, we need to rethink the fair use doctrine by adding transformative works as they have been defined in United States case law to the existing four factors that are already codified, and expand its overall usage, especially in the area of not-for-profit educational endeavors. Sixth, we should expand licensing options, and restrict the rent that those options receive, especially, once again, in the areas of not-for-profit education. Seventh, to the DMCA process, substantive discipline should be added or existing enforcement strengthened, for example the expiration of the accounts of repeat offenders. Eighth, in keeping with the last point, discrimination between higher education and commercial ISPs must end. Higher education is subject to greater restrictions due to the higher education opportunity act than are commercial ISPs. Either those restrictions should be found invalid as a matter of the equal protection clause even using the lowest level of judicial scrutiny, or they should be extended to the commercial providers. Personally, I favor the latter based on my direct experience as the DMCA Agent for Cornell University over the last decade. I have observed not the eradication of infringement, but by prioritizing sound education over fear for the first instance of infringement, and then applying progressive discipline for repeat offenders, I believe we have achieved greater degrees of compliance and sent the correct messages about why compliance is important through this process.
Ninth, in keeping with the last point, all ISPs should be required to provide educational information to subscribers about copyright law, notice to infringing users, progressive discipline, including first suspension and then termination of accounts of repeat infringers. In offering this recommendation, I recognize that under the HEOA, US colleges and universities have acted as canaries in the coal mine but we might as well bring to good use the tremendous administrative investments that we have been required to make in this area. I also appreciate that this approach falls under the doctrine of addressing infringement through intermediaries, which was repeated mentioned yesterday, and it is an approach not without controversy. I am still thinking about the efficacy and fairness of this approach, so I look forward to hearing contrary views during discussion. Finally, treaties that instantiate global copyright law should take a more equitable approach given the differences in resources among developing and developed countries. Another historical point: in the 19th century, the US was the greatest infringers of British novels and literature. It was after the US created indigenous culture that it reduced infringement, in part by strengthening its laws.
By the middle of the twentieth century our legislature may have gotten too much of a good thing. It is time to correct that imbalance. I suggest reform in order to create greater general compliance with copyright laws. Greater compliance with copyright laws should reduce infringement, but compliance requires reasonable laws in harmony with technology, international users and global markets. Inadvertently American higher education has acted as the test tube for the commercial world. Our colleges and universities can take pride in that role. But by the same token, American society and our legislatures, having put us in this role, should be willing to grant higher education a special voice in thinking through the larger challenges that we face in addressing infringement globally, not least because we are both producers and consumers of intellectual property, and as not for profit institutions, in the main, we do not have such an obvious dog in the fight, as we say, or skin in the game as so many of the most powerful voices to date have to their name. Reforms designed to right the incentive/innovation balance our forefathers established in the Constitution that would give back to the public domain more opportunity for innovation go hand in hand with those reforms intended to curb infringement and encourage compliance.
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