Economic Analysis of Copyright Notice: Tracing and Scope in the Digital Age
2016; Oxford University Press; Volume: 96; Issue: 3 Linguagem: Inglês
ISSN
0006-8047
Autores Tópico(s)Copyright and Intellectual Property
ResumoIntroductionNotice of ownership, boundaries, scope of rights (and limitations), enforcement institutions, and remedial consequences play a central role in resource planning. Real estate provides the foundational resource notice regime.1 Landowners record property interests with government registries, which inform the public of who owns particular land parcels. Prospective purchasers, neighbors, land developers, contractors, lenders, property tax collectors, zoning authorities, and other interested parties rely on these records plan resource use. Although notice of real estate ownership entails some costs, it has long functioned as a critical governance institution and has become more reliable and efficient with the development of surveying technologies, geographical information systems, and publicly available computer databases.2Legislatures, jurists, and intellectual property scholars have long looked real property law and institutions as a model and toolbox for designing intellectual property rules and institutions.3 There is much be gained from the real property analogy, especially regarding notice. Inventors and authors seeking appropriate a return on their investments wish attract users and consumers markets for their creativity. Developers of new technologies and works of authorship need determine whether their projects can be commercialized without running afoul of the rights of others. Notice of ownership and boundaries of intellectual resources plays an analogous role land registries in the real estate domain.Yet notice in the intellectual property realm introduces distinctive challenges. Although copyright law principally relies upon market mechanisms promote a vibrant, creative culture, various technological, economic, social, and distributive factors require a nuanced mix of regulatory adjustments as well as government oversight and a larger public role in copyright enforcement.4 Unlike land, intangible resources cannot be mapped onto two-dimensional grids. Inventors draft patent claim boundaries using words, which introduces inherent linguistic ambiguities.5 Authors, artists, and musicians draw upon the works of others as well as unprotectable ideas and the public domain in expressing their own creativity. Thus, their claim copyright protection is less, and often far less, than all of the elements (and the compilations of elements) reflected in the expressive work. The scope of copyright protection can be quite narrow.Beyond the technical aspects of copyright notice, the Berne Convention for the Protection of Literary and Artistic Works,6 a critical bulwark of the global copyright protection and enforcement regime, prohibits signatory nations from subjecting copyright protection to any formality, such as marking, registration, or deposit, on the enjoyment and the exercise of copyright.7 While the Berne Convention prohibition on formalities might have made sense in an earlier technological era in which the costs of registering copyrighted works and ensuring compliance with foreign laws were high, technological advances in recording and affording notice render these rationales obsolete. And with the long duration of copyright protection, the problems posed by difficult-to-trace and true orphan works plague artistic creativity.8This article moves beyond the contentious debate surrounding the limits and reform of the Berne Convention9 and focuses squarely on the central normative question: How should a society unconstrained by international law and endowed with available digital technologies design a system of copyright notice promote expressive creativity and free expression? Another way put the question is how would a brain trust of visionary technologists, creators, jurists, scholars, and policymakers-perhaps Sergey Brin, Larry Page, Jeff Bezos, Benjamin Kaplan, Ken Burns, Gregg Gillis (a/k/a Girl Talk), Barbara Ringer, Mr. Spock, Justice Joseph Story, Judge Pierre Leval, Jimmy Wales, and King Solomon-endowed with the available foreseeable information technologies design the notice regime for the next great Copyright Act? …
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