{"id":53075,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/should-us-intellectual-property-rights-change-to-fit-world-norms.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"should-us-intellectual-property-rights-change-to-fit-world-norms","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/should-us-intellectual-property-rights-change-to-fit-world-norms.html","title":{"rendered":"Should U.S. Intellectual Property Rights Change To Fit World Norms?"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n
<\/a><\/td>\n

SHOULD U.S. INTELLECTUAL PROPERTY RIGHTS CHANGE TO FIT WORLD NORMS? <\/h1><\/td>\n <\/tr>\n

By MARCI HAMILTON <\/h2>
<\/a>\nhamilton02@aol.com<\/a>
\n—-\n
Thursday, May. 24, 2001<\/div><\/td>\n\n <\/tr>\n <\/table>\n

\tThere is an increasing chorus demanding that the United States’ intellectual \nproperty system adopt the norms observed in other parts of the world. The argument \nis that globalization requires standardization, and so where the United States \nis out of step with other countries, it should get in line. <\/p>\n

Why assume, though, that it is the United States’ intellectual property law \nthat is wrong in the first place? Perhaps it is other countries that should follow \nthe U.S. lead. <\/p>\n

\t<\/p>\nindustry in history. And no small part of this success has to be attributable \nto the role of the intellectual property laws, which make it possible to profit \nfrom creativity. \n

Before the United States becomes a follower in the intellectual property area, \nit is well worth asking, in each individual circumstance, why? The Constitution \ntells Congress to ask a crucial question when it enacts copyright law: Does this \nnew law further the progress of knowledge? In other words, does the law further \nthe public good? The Constitution also warns Congress to not trench on liberty. \n<\/p>\n

Simply following the world’s example elides these crucial questions \u0097which \nwe should try to answer each time we change intellectual property law. Moreover, \nour role as follower to the world has not necessarily served us well to date.<\/p>\n\n<\/b>

Extending Copyright Monopolies to Follow Europe’s Lead<\/p>\n \n

Once, the copyright term in the U.S. was 56 years. Later the term was, in effect, \nnearly doubled, to cover the author’s life plus 50 years. <\/p>\n<\/span> \n

One would have thought this guarantee \u0097 providing, on average, 75 years \nof protection \u0097 was enough. But more recently, industry players such as Disney, \nhungry to extend copyright monopolies, persuaded Congress to tack on still more \nyears to the copyright term. Now, as a result of the Sonny Bono Term Extension \nAct, the term extends over the author’s life plus 70 years. <\/p>\n

Why? Because, the industry pointed out, Europe recognized a “life plus 70 years” \nterm. The industry claimed it was unfair for American industry to “suffer” a shorter \nterm than its European competitors. In any case, the argument went, Europe had \nset a trend. <\/p>\n

\n\n\tThe upshot, of course, is that for twenty more years, works are kept out \nof the public domain, so that potential licensees cannot use the works freely. \nRather, potential licensees must pay for such use or worse, if the copyright holder \ndenies permission, simply not use the works at all. <\/p>\n

This lengthy stranglehold of copyright is undoubtedly good for Disney, and \nfor Mickey Mouse. But for the rest of us, it only inhibits creative works. As \na result, it is neither consistent with liberty, nor good for this society with \nits distinctive values. <\/p>\n \n<\/b>

Removing Formalities to Follow the Berne Convention<\/p>\n \n“formalities” to trigger copyright protection for his or her work. Otherwise, \nthe work dropped into the public domain well before the copyright term would have \nelapsed. \n

But the 1976 Copyright Act, taking its cue from other jurisdictions, changed \nall that by enacting the rule that copyright attaches to a work the instant the \nwork is fixed in a tangible medium (such as when pen is put to paper, or cursor \nmoved upon computer screen). <\/p>\n

After the United States joined the Berne Convention, the leading international \ntreaty governing copyright, formalities were reduced even further so that an author \ncould no longer lose copyright protection through inadvertence or neglect. For \nexample, an author no longer had to affix notice of this copyright claim. <\/p>\n

\tThis attempt to make creative works “dummy-proof” might seem to be an obviously \ngood thing. But it has had some serious, unintended consequences. <\/p>\n

Take, for example, the phenomenon of “freeware,” \u0097 that is, software, \nsuch as Linux, to which programmers contribute without payment, and which is intended \nto be used without payment. Those contributing to Linux software sign an agreement \nthat they will not exploit their copyright in their creative additions, but rather \nwill permit the product to “go free.” Moreover, the supporters of Linux have dubbed \ntheir movement “copyleft,” to connote their intent to do away with copyright protection. \n<\/p>\n

But not so fast. Linux contributors’ hopes that their work will instantly go \ninto the public domain may have little effect under existing copyright law \u0097 \nwhich straitjackets a work with copyright protection upon creation regardless \nof the author’s intention<\/i>. <\/p>\n

Ironically, then, the dimunition of formalities has lessened the power the \nauthor has over the disposition of a work. Under a “formalities” regime, Linux \ncontributors could easily \u0097 indeed, effortlessly \u0097 have given up any \ncopyright claim simply by failing to comply with the requisite formalities. <\/p>\n

They should have that right (whether it is through a system of so-called formalities \nor an on-point provision in the copyright law). While claiming to be revolutionary \nsocialists, Linux contributors are actually asking for a free market property-regime \nright that has a long and honorable tradition: the right to decide how and when \nto dispose of creative property, including when to donate it to the public domain. \n<\/p>\n

In short, by following the world’s lead, the United States copyright system \nmade it inordinately difficult for authors to dispose of their works without payment. \nMoreover, not only does the system potentially inhibit “freeware,” it also ensures \nthat one cannot safely use a potentially copyrighted work without first locating \nthe rightsholder and asking for his or her permission \u0097 which can be an onerous \ntask. Because of the automatic right on fixation feature of copyright law, that \nsearch goes forward even when an author really wants to share the work. <\/p>\n \n<\/b>

The Next Wave: Database Copyright Protection<\/p>\n \nthe copyright area. And again, the consequences may be bad.\n<\/span>\n\n \n \n
<\/td>\n\"[citizen<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\n

This time, Congress has been told that it needs to “catch up” to the European \nlaw protecting databases \u0097 that is, collections of stored information (An \nelectronic phone book would be an example, or a company’s store of customer data, \nor NASDAQ, or the AMA’s database, or an online news service’s stories). Once again, \nfundamental constitutional questions are being elided by the focus on doing what \nthey are doing “over there.” <\/p>\n

Under legislative proposals drafted to date, database copyright protection \nwould protect not just the investment needed to generate a database, but rather \nsmall segments (“bits”) of information within the database itself – but that obviously \ntrenches on First Amendment rights of access to information. <\/p>\n

No wonder the National Academy of Science, as well as librarians’ associations, \nhave vocally opposed the legislation. Before Congress takes another step to make \nsure America’s norms are global norms, the relevant constitutional questions need \nfull airing. <\/p>\n

The success of the United States’ copyright industries is due to a complex \nmix of private property rights, constitutionally-protected liberties, and copyright \nrules that operate on free market principles. Before adopting the world’s norms, \nwe should ask whether those norms protect these rights and liberties, and live \nup to the principles that have served us so well for so long. <\/p>\n

The United States is often called the 800-pound gorilla in international intellectual \nproperty negotiations. We should remember our strengths, and use them to ensure \nthat we closely analyze, on a case-by-case basis, whether it makes sense for us \nto follow global norms. As it is now, we yield too easily to global peer pressure. \n<\/p>\n<\/span> \n\n

\n\n\n<\/a>\nMarci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com.\n\n

\n\n<\/p>\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n