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Present and Future Priorities in

Copyright Law

A Scoping Study

February 2002

Yoav Mazeh
Wolfson College, Oxford

Done under the auspices of the Oxford Intellectual Property Research Centre at St
Peter’s College, Oxford, and under the supervision and editorship of Professor David
Vaver, the Centre Director
2

Table of Contents
Introduction 3

Part A: IP Centres 4

UK 4

USA 4

Miscellaneous 5

Part B: Three Major Development Areas 7

Computer programs 7

Internet 10

Information 13

Part C: Aspects of Copyright Law in Recent Research 15

Public Interest 15

Economic Aspects 17

International Aspects 19

Part D: Future Possible Research Areas 22

Creators-Consumers Conflict 22

Empirical Research 23

Criteria for and scope of Protection 25

Selected Bibliography 27
3

Introduction
The focus of this report is to discuss present priorities in current Intellectual Property

(IP) research, particularly in the fields of copyright and moral rights.1 The report

describes issues which occupy significant attention in the contemporary academic

literature of copyright. Part A of the report will provide a list of IP centres throughout

the world, particularly in the UK and the USA. Part B will examine three major

development areas, namely the computer program, internet and information

industries. Part C will examine three aspects of copyright law which receive

considerable focus in recent IP literature. Finally Part D will suggest future areas of

research in the field of IP law.


4

Part A: IP Centres

Mapping the academic centres of IP is not an easy task. Fortunately, this field is

flourishing and it is difficult to follow all the IP centres which are being established

regularly. Hence, this report does not aim to create a comprehensive list of all IP

centres, but rather to mention a number of prominent centres in this field that may

fairly reflect the current status.2

UK

At Cambridge University there is an IP Unit, which is part of the Faculty of Law.3 At

Oxford there is the Oxford Intellectual Property Research Centre at St Peter’s

College.4 This is an interdisciplinary centre consisting of IP lawyers, economists,

business management academics, etc.5 A new Oxford Internet Institute has just been

established at Balliol College to conduct internet research and studies; a director is

currently being sought.6 The Queen Mary Intellectual Property Research Institute is

at the Queen Mary College, University of London.7 This is a large and active IP

centre, which deals with a variety of IP law issues.

USA

In the USA there are a large number of centres. The Berkeley Center for Law &

Technology8 is a leader in the fields which examine the interaction of IP and

technology. At Chicago-Kent College there is the Illinois Institute of Technology and

the Institute for Science, Law and Technology.9 The Kernochan Center for Law,

Media and the Arts is at Columbia University.10 A centre is located also at Franklin
5

Pierce College.11 Although this centre is less academically oriented, it is one which is

highly focused on IP in a broad sense. At George Mason University there is the

National Center for Technology & the Law.12 The Dinwoodey Center for Intellectual

Property is at George Washington University.13 At Harvard there is the Berkman

Center for Internet & Society,14 which is focused on IP and social aspects of the

internet. The recently established Information Law Institute at New York University15

focuses on the information aspect of IP, and other aspects of IP are dealt with by

faculty which is not necessarily associated with this institute. Finally, the Stanford

University Law, Science and Technology Program16 fosters a leading IP centre.

Miscellaneous

Other IP centres in the world include the Universidad de Alicante, Spain, which has

the Magister Lucentinus – Master of Intellectual Property and Information Society.17

At the ETH at Zurich, (the Swiss Federal Institute of Technology), there is the NDS

Intellectual Property.18 At Strasbourg Law Faculty there is the Centre D’Etudes

Internationales de la Propriete Industrielle – CEIPI.19 The Max Planck Institute at

Munich is a leading centre in IP research, with specialised research departments on IP

covering different regions of the world, including developing countries.20 This field is

also emphasised at Murdoch University, Western Australia, in the Asia Pacific

Intellectual Property Law Institute.21


2
In each geographical group the centres are listed by alphabetical order.
3
http://www.law.cam.ac.uk/ipunit/home.htm
4
http://www.oiprc.ox.ac.uk/. The website also offers a large numbers of web-published articles at the
Electronic Journal of Intellectual Property. See: http://www.oiprc.ox.ac.uk/EJINDEX.html
5
It is noted that the author of this report is a research student in Oxford and participates regularly in the
activities of the Oxford Intellectual Property Research Centre, although he is not officially affiliated to
the Centre.
6
http://www.oii.ox.ac.uk/index.shtml.
7
http://www.ccls.edu/iplaw/
8
http://www.law.berkeley.edu/institutes/bclt/
9
http://www.kentlaw.edu/islt/
6

10
http://www.law.columbia.edu/centers/law&arts.htm
11
http://www.fpc.edu/. See also their wide range IP Mall at
http://navigation.helper.realnames.com/framer/1000/default.asp?
realname=Intellectual+Property+Mall&cc=US&lc=en
%2DUS&frameid=1565&providerid=154&url=http%3A%2F%2Fwww%2Eipmall%2Efplc%2Eedu
12
http://techcenter.gmu.edu/
13
http://www.law.gwu.edu/centers/dinwood.asp
14
http://cyber.law.harvard.edu/
15
http://www.law.nyu.edu/ili/index.html
16
http://law-science-tech.stanford.edu/index2.html
17
http://ml.ua.es/
18
http://www.ndsge.ethz.ch/en/index.html
19
http://www.ceipi.edu/cgi/index_gb.cfm?rep=leceipi
20
http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM
21
http://wwwlaw.murdoch.edu.au/apipli/main.html

Part B: Three Major Development Areas


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Computer programs22

One of the major development areas which is governed by, inter alia, copyright is the

field of computer programs or software. In general, copyright is capable of protecting

software as literary work.23 However, as the software industry is developing rapidly,

new questions arise as to what aspects of software should be protected by this field of

law. An example of an issue which has recently received considerable attention is

that of the legitimate uses of copyrighted software. One form of this question has

been raised by a US Court of Appeals holding that the restriction of software

producers on copying others’ software in order to develop compatible accessory

products is a misuse of copyright.24 This case has raised considerable discussion

about how far copyright holders may legitimately exercise their exclusive rights:

when does the exploitation of copyright in software by the rights owner become a

‘misuse’ that the law should prevent?25 This connects with the broader issue of what

uses should be regarded as “fair” and thus allowable, and what uses should fall

outside this “privilege” – so-called “exceptions” in European law. An example is the

whole question of reverse engineering.26

A particularly interesting question here is the economic justification for copyright

protection for software. In general, economic theories of copyright stress the

incentive for creativity which is achieved by copyright protection.27 However, the

modern software industry raises some doubts about the validity of these economic

models.28 The evolving open source industry, where the software code is given out

for free, supports the view that creativity may occur without any need for copyright

incentives. In other words, copyright may not necessarily be the incentive for
8

creativity in general, or at least in the field of software,29 the point is often made that

copyright for software is a serious restriction on competition.30

In sum, the complex developments in the software industry raise considerable

questions both about the law as it is, and the law as it should be.
22
It is noted that Software and Computer Program are not completely synonymous (see Council
Directive (Eec) No 91/250 on the Legal Protection of Computer Programs [1991] OJ L 122/42, Recital
7). However, this report will not distinguish between the two.
23
Copyright, Designs and Patents Act 1988, s 3(1)(b); See also: Council Directive (Eec) No 91/250 on
the Legal Protection of Computer Programs [1991] OJ L 122/42; TRIPs art 10(1); WIPO Copyright
Treaty (Geneva 1996) art 4.
24
Alcatel USA Inc v DGI Technologies Inc 166 F 3d 772 (US Ct App (5th Cir), 1999).
25
JC Ginsburg 'Copyright Use and Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts 1; B
Frischmann and D Moylan 'The Evolving Common Law Doctrine of Copyright Misuse: A Unified
Theory and Its Application to Software' (2000) 15 Berkeley Tech L J
26
E Douma 'The Uniform Computer Information Transactions Act and the Issue of Preemption of
Contractual Provisions Prohibiting Reverse Engineering, Disassembly, or Decompilation' (2001) 14
Albany L J of Science & Tech 249; B Frischmann and D Moylan 'The Evolving Common Law
Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software' (2000) 15 Berkeley
Tech L J .
27
WM Landes and RA Posner 'An Economic Analysis of Copyright Law' (1989) 18 J of Legal Studies
325; WR Johnson 'The Economics of Copying' (1985) 93 J Political Economy 158; GK Hadfield 'The
Economics of Copyright: An Historical Perspective' (1992) 38 Copyright L Symposium 40.
28
One of the first to raise this issue was S Breyer 'The Uneasy Case for Copyright: A Study of
Copyright in Books, Photocopies and Computer Programs' 1970 84 Harvard L R 281. See also WM
Landes 'Copyright, Borrowed Images, and Appropriation Art: An Economic Approach' (2000) 9
George Mason L Rev 1; MA Lemley Software and Internet Law (Aspen Law & Business Gaithersburg
2000); RP Merges 'Who Owns the Charles River Bridge? Intellectual Property and Competition in the
Software Industry' http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf; M Lehmann
'Theory of Property Rights and Copyright Protection of Computer Programs in Europe' (1994) 2 Int J
of L & IT 86; I Madieha Azmi 'Contract or Copyright? Software Licensing and the Control of
Information Products: The Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; E Douma
'The Uniform Computer Information Transactions Act and the Issue of Preemption of Contractual
Provisions Prohibiting Reverse Engineering, Disassembly, or Decompilation' (2001) 14 Albany L J of
Science & Tech 249; BF Fitzgerald 'Software as Discourse: The Power of Intellectual Property in
Digital Architecture' (2000) 18 Cardozo Arts & Ent L J 337; B Yonaga 'An Economic Analysis of
Computer Software Copyright: A Welfare Model of Intellectual Property Rights' (1991-92) 11 The
Computer L J 173.
29
PK Bobko 'Open-Source Software and the Demise of Copyright' (2001) 27 Rutgers Computer &
Tech L .J 51; R Dixon 'When Efforts to Conceal May Actually Reveal: Whether First Amendment
Protection of Encryption Source Code and the Open Source Movement Support Re-Drawing the
Constitutional Line between the First Amendment and Copyright' (2000) 1 Colum Sci & Tech L Rev 3;
BF Fitzgerald 'Software as Discourse: The Power of Intellectual Property in Digital Architecture'
(2000) 18 Cardozo Arts & Ent L J 337; L Lessig 'The Limits in Open Code: Regulatory Standards and
the Future of the Net' (1999) 14 Berkeley Tech L J 758; A Metzger and T Jaeger 'Open Source
Software and German Copyright Law.' (2001) 32 IIC 52.
30
See for example I Madieha Azmi 'Contract or Copyright? Software Licensing and the Control of
Information Products: The Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; RP Merges
'Who Owns the Charles River Bridge? Intellectual Property and Competition in the Software Industry'
http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf
9
10

Internet

Another much discussed field is that of the internet. The reality created by the

internet is significant to two aspects of copyright. The first refers to the forms of

expression which are enabled by the internet: web-content, design and links are all

new forms of expression, and copyright may protect them as literary or artistic works.

The second, much-discussed, aspect of copyright is that of infringement on the

internet. The internet enables new forms of use of copyright works. One can display

a work on a website, one can create a link to a website which displays a work, and one

can even provide search engines that reach a website which displays a work, etc. Are

or should all these uses be infringements of copyright?31

The issue of what aspects of the internet should be regulated by copyright raises

concerns in various fields. Questions are being asked about the impact of the internet

and copyright on public access to works and, more generally, information.32 Other

questions relate to how economic theory applies to the reality of the internet, given

that access to works may be granted at practically no cost.33 Concerns are also

expressed over censorship and freedom of speech,34 and practical issues over the inter-

jurisdictional or cross-border aspects of the internet.35

Similar issues are also raised with respect to moral rights. Moral rights protect the

integrity of authors by, inter alia, restricting the modification of works without the

consent of the original author. On the one hand, the internet and other digital

technologies enable users to modify works in ways which were not previously

possible. Private users can download a painting from the internet, alter it, and put their
11

modified version back on the web, for example. On the other hand, while in previous

years consumers could not always access the unmodified work, in the reality of the

internet, “the undistorted original could”, in the words of Professor Jane Ginsburg,

“be only a mouse click away.”36 Hence, the view of Ginsburg and others37 is that

perhaps where the internet is concerned, moral rights should not prevent

modifications of works, but rather should require those who present on the web a

modified version of a work to provide a link to the original unmodified version.

31
See for example E Aoki 'Brazil: Moral Rights Are Not Violated by Unauthorised Publication of
Copyrighted Work in Website' (2001) 112 Copyright World 3; T Aplin 'Liability of Internet Service
Providers for Moral Rights Infringement in Australia' (1999) 1 Digital Tech L J; Y Benkler 'Internet
Regulation: A Case Study in the Problem of Unilateralism' (2000) 11 European J of Int L 167; T
Dreier 'Copyright Law and Digital Exploitation of Works - the Current Copyright Landscape in the
Age of the Internet and Multimedia' Max Planc Institute Online Publications
http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM; JC Ginsburg 'Copyright Use and
Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts 1
32
I Butterworth (ed) The Impact of Electronic Publishing on the Academic Community (Portland
London 1998); PA David 'A Tragedy of the Public Knowledge ‘Commons’? Global Science,
Intellectual Property and the Digital Technology Boomerang' WP 04/00 Oxford Intellectual Property
Research Centre Working Paper Series; T Dreier 'Copyright Law and Digital Exploitation of Works -
the Current Copyright Landscape in the Age of the Internet and Multimedia' Max Planc Institute
Online Publications http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM; T Heide
'Copyright in the E.U. And United States: What "Access Right"?' (2001) 23 EIPR 469.
33
MA Lemley 'The Law and Economics of Internet Norms' (1998) 73 Chicago-Kent L Rev 1257; Y
Benkler 'Internet Regulation: A Case Study in the Problem of Unilateralism' (2000) 11 European J of
Int L 167; JC Ginsburg 'Copyright Use and Excuse on the Internet' (2000) 24 Colum-VLA J L & Arts
1; AR Fox 'The Economics of Expression and the Future of Copyright Law' (1999) 25 Ohio Northern
U L Rev 5.
34
C Kendall 'Internet Censorship in Australia: The Broadcasting Services Amendment (Online
Services) Act' (2000) 1 Cyberspace and Law 175; N Weinstock Netanel 'Market Hierarchy and
Copyright in Our System of Free Expression' (2000) Vanderbilt L Rev 1879.
35
P Samuelson 'On Author's Rights in Cyberspace: Are New International Rules Needed?' (1996) First
Monday http://www.firstmonday.dk/issues/issue4/samuelson/; A McRobert and M Pendleton
'Browsing, Caching, Downloading & Linking Websites: Copyright & Multi-Jurisdictional Dimensions'
(2000) 41 Computers & Law 3; M Pendleton 'Computer Programs, Internet Copyright and Trips
Border Control' (1999) 7 Asia Pacific L Rev 133; S Plenter 'Choice of Law Rules for Copyright
Infringements in the Global Information Infrastructure: A Never-Ending Story?' (2001) 23 EIPR 313.
36
JC Ginsburg 'Art and the Law: Suppression and Liberty Have Moral Rights Come of (Digital) Age in
the United States?' (2001) 19 Cardozo Arts & Ent L J 9, 17.
37
See for example J Litman 'Revising Copyright Law for the Information Age' (1996) 75 Or L Rev 19.
12

Information

The third industry which causes significant copyright discussion is the information

industry. A fundamental principle in copyright law states that copyright protects

expressions and not the ideas which are being expressed. Traditionally, when this

principle was applied to works containing lists of information (ie compilations), it was

held that copyright does not provide exclusive rights in the information itself since the

information was regarded as the idea of the expression. What is protected by

copyright is the selection, arrangement and presentation of the information in a certain

way.38 For example, if a publisher publishes a railway timetable, he can enjoy the

protection of copyright for his timetable, and prevent others from photocopying it.39

However he does not enjoy an exclusive right in the information (ie the schedule of

the trains), and thus others may create their own timetable of the same data. A

distinction is thus made between the data, which are not protected by copyright, and

the selection and arrangement of the data, which could qualify for protection.

However, advances in the fields of software and internet have created a situation

where databases and other forms of information can be easily duplicated and re-

arranged. According to the traditional distinction between data and the presentation

of the data, copyright protection might not have extended to modern databases which

only (or mainly) contain the information itself and do not arrange it in any particularly

original or distinctive way. Hence, a database protection right was created in Europe.

According to the European Database Directive40 and its implementing UK

legislation,41 sui generis rights are provided to databases even if they fail to qualify for

copyright protection.
13

This outcome, that information contained in a database is protected by IP law, has

raised concerns. IP rights in information imply that the holders of these rights can

control the information society may access. It has been claimed that these rights

affect what is being expressed, rather than how it is being expressed. Hence, concerns

have been raised over issues of freedom of speech and censorship.42 Claims have

also been that the scope of the rights granted by the Database Directive are too broad,

conferring unreasonable restrictions on the use of information.43 And questions have

been asked about the economic and social impacts of the commodification of

information.44

38
Although this rule is now stated in section 3A(2) of the Copyright, Designs and Patents Act 1988, the
same rule was also applied prior to this amendment to the legislation. See, for example, v [1964] 1
WLR 273 .
39
Blacklock v Pearson [1915] 2 Ch 376 ; Leslie v Young [1894] AC 335 (CA).
40
Council of Parliament Directive (Ec) 96/9 on the Legal Protection of Databases [1996] OJ L 028/11.
41
Copyright and Rights in Databases Regulations 1997 SI 1997/3032 which came
into force on 1 January 1998.
42
Y Benkler 'Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public
Domain' (1999) 74 NYU L Rev 354; JC Ginsburg 'Art and the Law: Suppression and Liberty Have
Moral Rights Come of (Digital) Age in the United States?' (2001) 19 Cardozo Arts & Ent L J 9; C
Kendall 'Internet Censorship in Australia: The Broadcasting Services Amendment (Online Services)
Act' (2000) 1 Cyberspace and Law 175; PL Loughlan 'Looking at the Matrix: Intellectual Property and
Expressive Freedom' (2002) 24 EIPR 30.
43
JH Reichman and P Samuelson 'Intellectual Property Rights in Data?' (1997) 50 Vanderbilt L Rev
51; L Bently and B Sherman Intellectual Property Law (3rd edn OUP Oxford 2001) 301.
44
N Elkin-Koren and N Netanel (edd) The Commodification of Information: Political, Social, and
Cultural Ramifications (Kluwer 2000); Y Benkler 'A Political Economy of the Public Domain:
Markets in Information Goods Vs. The Marketplace of Ideas' in RC Dreyfuss, DL Zimmerman and H
First (edd) Expanding the Boundaries of Intellectual Property : Innovation Policy for the Knowledge
Society (OUP Oxford 2001); JH Barton 'The Balance between Intellectual Property Rights and
Competition: Paradigms in the Information Sector' (1997) 18 European Competition L Rev; I Madieha
Azmi 'Contract or Copyright? Software Licensing and the Control of Information Products: The
Malaysian Perspective.' (2001) 7 Comp & Telecom L Rev 136; MJ Bastian 'Protection of
"Noncreative" Databases: Harmonization of United States, Foreign and International Law' (1999) 22
Boston College International and Comparative L Rev 425; JC Ginsburg 'Creation and Commercial
Value, Copyright Protection of Works of Information' (1990) 90 Columbia L Rev 1865; WJ Gordon
'On Owning Information: Intellectual Property and the Restitutionary Impulse' (1992) 78 Virginia L
Rev 149.
14

Part C: Aspects of Copyright Law in Recent Research

In this part of the report, three aspects of copyright law which receive considerable

mention in the contemporary IP literature are highlighted.

Public interest

The first aspect relates to the public interest. Copyright law has always tried to

balance the need for incentives for creativity, on the one hand, and the need to enable

society to access works which have been created, on the other.45 Broadening the

protection provided by copyright provides greater incentives for authors, but narrows

the public domain, that is, the common cultural resources to which the public has

access. Finding the right balance between sufficient incentives for creativity and

over-restricting the public domain has always been, and still is, one of the main

challenges of copyright law.

45
B Kaplan An Unhurried View of Copyright (Columbia University Press New York 1967); P
Goldstein 'Copyright and the First Amendment' (1970) 70 Columbia L Rev 983; RC Denicola
'Copyright and Free Speech: Constitutional Limitations on the Protection of Expression' (1979) 67
California L Rev 283; MJ Radin 'Property and Personhood' (1982) 34 Stanford L Rev 957; D Baird
'Common Law Intellectual Property and the Legacy of International News Service V. Associated Press'
(1983) 50 Chicago L Rev 411; IE Novos and M Waldman 'The Effect of Increased Copyright
Protection: An Analytic Approach' (1984) 92 J Political Economy 236.
46
Y Benkler 'Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public
Domain' (1999) 74 NYU L Rev 354; Y Benkler 'A Political Economy of the Public Domain: Markets
in Information Goods Vs. The Marketplace of Ideas' in RC Dreyfuss, DL Zimmerman and H First
(edd) Expanding the Boundaries of Intellectual Property : Innovation Policy for the Knowledge Society
(OUP Oxford 2001); PA David 'A Tragedy of the Public Knowledge ‘Commons’? Global Science,
Intellectual Property and the Digital Technology Boomerang' WP 04/00 Oxford Intellectual Property
Research Centre Working Paper Series; RC Dreyfuss, DL Zimmerman and H First (edd) Expanding
the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (OUP Oxford
2001); FW Grosheide 'Copyright Law from a User's Perspective: Access Rights for Users.' (2001) 23
EIPR 321; T Heide 'Copyright in the E.U. And United States: What "Access Right"?' (2001) 23 EIPR
469; F Macmillan 'Adapting the Copyright Exemptions to the Digital Environment' (1999) 1 Digital
Technology Law Journal; RP Merges 'Who Owns the Charles River Bridge? Intellectual Property and
Competition in the Software Industry'
http://www.law.berkeley.edu/institutes/bclt/pubs/merges/criver.pdf; A Metzger and T Jaeger 'Open
Source Software and German Copyright Law.' (2001) 32 IIC 52; M Pendleton 'The Danger of
Protecting Too Much: A Comparative Analysis of Aspects of Intellectual Property in Hong Kong,
Britain and the United States' (2000) 22 EIPR 69.
15
16

Economic Aspects

A second prominent aspect in IP literature is economic analysis. In this respect

similar to the public interest issue, the economics of copyright has also been

thoroughly discussed over the years.47 In economic terms, copyright is designed to

correct a market failure of free access to public goods. Copyright enables its holder to

charge a fee for the use of the work, and thereby recoup the holder’s investment in

product creation and development. In other words, copyright enables potential

authors to invest in creating works because they know that potential consumers of the

works will be willing to pay for their consumption. However, the other side of the

economic coin is that copyright provides a monopolistic right to its holder, thereby

restricting competition. Copyright holders may use their exclusivity over their

product in uncompetitive ways. Hence, the question has always been how to balance

the power of copyright holders, so they would have an economic incentive to enrich

society but would not be overly uncompetitive in the exercise of their rights.

Economics is often used to examine and evaluate developments in IP law.48 In recent

academic literature, this approach applies to almost every possible aspect of

copyright. Examples include compulsory licensing,49 derivative works and

improvements in existing works,50 translations,51 academic work and publishing,52

freedom of speech,53 and even moral rights.54

In general, the economic aspect plays an important part in contemporary IP literature.

The question often asked is whether IP rules promote economic efficiency or rather

are undue obstacles to efficient competition.55


17

47
S Breyer 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and
Computer Programs' (1970) 84 Harvard L R 281; WJ Gordon 'Fair Use as Market Failure: A Structural
and Economic Analysis of the Betamax Case and Its Predecessors' (1982) 82 Columbia L Rev 1600;
WR Johnson 'The Economics of Copying' (1985) 93 J Political Economy 158; WM Landes and RA
Posner 'An Economic Analysis of Copyright Law' (1989) 18 J of Legal Studies 325.
48
See above, with respect to software, at page 7; with respect to the internet, at page 10; and with
respect to information at page 12.
49
S Basalamah 'Compulsory Licensing for Translation: An Instrument of Development?' (2000) 40
IDEA 503; T Gallagher 'Copyright, Compulsory Licensing and Incentives' No 2 May 2001 Oxford
Intellectual Property Research Centre Working Paper Series .
50
M Blakeney 'Intellectual Property and Economic Development' (1998) 4 Int Trade Law & Reg 1; SS
Boyd 'Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to
Attain Copyright Protection in a Derivative Work' (2000) 40 Santa Clara L Rev 325; WM Landes
'Copyright, Borrowed Images, and Appropriation Art: An Economic Approach' (2000) 9 George
Mason L Rev 1.
51
S Basalamah 'Compulsory Licensing for Translation: An Instrument of Development?' (2000) 40
IDEA 503.
52
I Butterworth (ed) The Impact of Electronic Publishing on the Academic Community (Portland
London 1998); R Downes Computing, Electronic Publishing and Information Technology : Their
Impact on Academic Libraries (Haworth Press New York ; London 1988); T Dreier 'Copyright
Principles in a Digital Scientific World' in I Butterworth (ed) The Impact of Electronic Publishing on
the Academic Community (Portland London 1998) 48; D Lametti 'Publish and Profit?: Justifying the
Ownership of Copyright in the Academic Setting' (2001) 26 Queen's L J 497.
53
AR Fox 'The Economics of Expression and the Future of Copyright Law' (1999) 25 Ohio Northern U
L Rev 5; N Weinstock Netanel 'Market Hierarchy and Copyright in Our System of Free Expression'
(2000) Vanderbilt L Rev 1879.
54
BS Hayes 'Integrating Moral Rights into U.S. Law and the Problem of the Works for Hire Doctrine'
(2000) 61 Ohio State L J 1013; SK Kauffman 'Motion Pictures, Moral Rights, and the Incentive
Theory of Copyright: The Independent Film Producer as "Author"' (1999) 17 Cardozo Arts & Ent LJ
749.
55
M Blakeney 'Intellectual Property and Economic Development' (1998) 4 Int Trade Law & Reg 1; T
Gallagher 'Copyright, Compulsory Licensing and Incentives' No 2 May 2001 Oxford Intellectual
Property Research Centre Working Paper Series; RJ Gilbert and WK Tom 'Is Innovation King at the
Antitrust Agencies?: The Intellectual Property Guidelines Five Years Later' (2001) 69 Antitrust L J 1;
MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the
Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; MA Lemley 'The
Economics of Improvement in Intellectual Property Law' (1997) 75 Texas L Rev 989; MA Lemley
'The Law and Economics of Internet Norms' (1998) 73 Chicago-Kent L Rev 1257; RP Merges
'Intellectual Property Rights, Input Markets, and the Value of Intangible Assets'
http://www.law.berkeley.edu/institutes/bclt/pubs/merges/iprights.pdf; R Van den Bergh 'The Role and
Social Justification of Copyright: A 'Law and Economics' Approach' (1993) 102 Yale L J 1533.
18

International Aspects

The third dominant feature of copyright research is its international aspect.

Traditionally, national IP laws protected only works of local origin. However, as

export and import became more common, it was realized that countries would be

better off protecting foreign works and correlatively having their works protected

abroad. Nevertheless, differences in IP standards between countries created

difficulties in international co-operation.56 As differences existed in the criteria for

protection, the scope of protection and what constituted infringement, finding agreed

common standards by which all countries would protect the foreign works proved

slow and difficult.

A significant international effort has occurred during the last few decades with the

object of harmonizing international IP law and creating common standards. The

TRIPs agreement,57 WIPO’s Copyright Treaties,58 and the gradual implementation of

the European Directive on the Information Society59 are just a few examples.60

In the light of such initiatives and other globalizing processes, adherence to

international IP standards has become an issue of great interest. Examples where this

aspect has been examined include the duration of rights,61 the originality

requirement,62 and copyright in sound recordings.63

One particularly strong example of an issue with a substantial amount of literature on

creating and adhering to international standards is that of moral rights.64 Although the

international standard in this respect was set long ago by the Berne Convention,65
19

issues of compliance remain current. The recent enactment of the United States

Digital Millennium Copyright Act of 1998 and the Australian Copyright Amendment

(Moral Rights) Act 2000 are examples of recent national legislation that has attracted

international academic attention concerning compliance with the Berne standards of

moral rights.66

Finally, a totally different international issue relates to developing countries and

aboriginal cultures. Recent literature argues that cultural aspects of indigenous people

should be regarded as their intellectual property.67

56
P Goldstein International Copyright : Principles, Law, and Practice (OUP New York 2001); H
Cohen Jehoram 'European Copyright Law - Ever More Horizontal' (2001) 32 IIC; JAL Sterling World
Copyright Law (Sweet & Maxwell London 1998); S Ricketson 'The Boundaries of Copyright: Its
Proper Limitations and Exceptions: International Conventions and Treaties' [1999] 1 IPQ 56.
57
Trade Related Aspects of Intellectual Property Rights (1994).
58
WIPO Copyright Treaty (Geneva 1996); WIPO Performances and Phonograms Treaty (Geneva
1996).
59
Directive 2001/29/Ec on the Harmonization of Certain Aspects of Copyright and Related Rights in
the Information Society [2001] OJ L 167/10.
60
Other examples are also Council Directive (Eec) No 91/250 on the Legal Protection of Computer
Programs [1991] OJ L 122/42; Council of Parliament Directive (Ec) 96/9 on the Legal Protection of
Databases [1996] OJ L 028/11.
61
Council Directive (Eec) 93/98 on Harmonizing the Term of Protection of Copyright and Certain
Related Rights [1993] OJ L 290/9; RL Bard Copyright Duration: Duration, Term Extension, the
European Union, and the Making of Copyright Policy (Sweet & Maxwell London (1999)).
62
T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39
Journal of the Copyright Society of the USA 289; S Ricketson 'Originality in Anglo-Australian Law'
(1991-92) 39 Journal of the Copyright Society of the USA 265; G Schricker 'Farewell to the "Level of
Creativity" (Schopfungshohe) in German Law?' (1995) 26 IIC 41; MJ Tawfik '"Aussie Rules" on the
Boundaries of Copyright Protection in Factual Compilations' (2001) 2 Oxford U Commonwealth L J .
63
L Robinson 'The Global Response to Digital Music Piracy' (2000) 7 UCLA Ent L Rev 357.
64
MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the
Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; RR Kwall 'Preserving
Personality and Reputational Interests of Constructed Personas through Moral Rights: A Blueprint for
the Twenty-First Century' (2001) 38 U of Illinois L Rev 151; BS Hayes 'Integrating Moral Rights into
U.S. Law and the Problem of the Works for Hire Doctrine' (2000) 61 Ohio State L J 1013; LA
Pettenati 'Moral Rights of Artists in an International Marketplace' (2000) 12 Pace Int'l L Rev 425; L
Nakashima 'Visual Artists - Moral Rights in the United States: An Analysis of the Overlooked Need for
States to Take Action' (2000) 41 Santa Clara L Rev 203.
65
Art 6 bis.
66
For the American discussion see: RR Kwall 'Preserving Personality and Reputational Interests of
Constructed Personas through Moral Rights: A Blueprint for the Twenty-First Century' (2001) 38 U of
20

Illinois L Rev 151; MB Gunlicks 'A Balance of Interests: The Concordance of Copyright Law and
Moral Rights in the Worldwide Economy' (2001) 11 Fordham Intell Prop Media & Ent LJ 601; JC
Ginsburg 'Art and the Law: Suppression and Liberty Have Moral Rights Come of (Digital) Age in the
United States?' (2001) 19 Cardozo Arts & Ent L J 9; LA Pettenati 'Moral Rights of Artists in an
International Marketplace' (2000) 12 Pace Int'l L Rev 425; L Nakashima 'Visual Artists - Moral Rights
in the United States: An Analysis of the Overlooked Need for States to Take Action' (2000) 41 Santa
Clara L Rev 203. For the Australian discussion, see: J McDonald and T Catanzariti 'Australia:
Copyright - Moral Rights' (2001) 12 Ent L Rev N29; A Fitzgerald and F Deffenti 'Australia: Copyright
- Copyright Amendment (Moral Rights) Act 2000' (2001) 23 EIPR N35; K Gettens 'Australia Now
Has "Moral Rights": Copyright Amendment (Moral Rights) Act 2000' (2001) 12 Ent L Rev 129; E
Adeney 'Defining the Shape of Australia's Moral Rights: A Review of the New Laws' (2001) 4 IPQ
291.
67
M Blakeney 'Intellectual Property in the Dreamtime - Protecting the Cultural Creativity of
Indigenous Peoples' (1999) WP 11/99 OIPRC Electronic Journal of Intellectual Property Rights; K
Puri 'Is Traditional or Cultural Knowledge a Form of Intellectual Property?' (2000) WP 01/00 OIPRC
Electronic Journal of Intellectual Property Rights; AR Riley 'Recovering Collegctivity: Group Rights
to Intellectual Property in Indigenous Communities' (2000) 18 Cardozo Arts & Ent LJ 175; MT
Sundara Rajan 'Moral Rights and the Protection of Cultural Heritage : Amar Nath Sehgal V. Union of
India' 2001 10 International Cultural Property Society 79.
21

Part D: Future Possible Research Areas

In the light of the foregoing review of current IP research, the following suggestions

may be made for possible future areas of research.

Creators–Consumers Conflict

It has been seen that copyright, as well as moral rights and other IP rights, is

inherently caught between the interests of the creators, on the one hand, and the

interests of the consumers, on the other. The need to resolve this tension is an issue

which has received considerable attention in the past. It rightly continues to occupy

the IP agenda.

Surveys to examine the creators-consumers interests may be useful to clarify specific

issues. If an adjustment is suggested to some specific aspect of IP law, an

examination of the interests of creators and consumers might precede any legal

proposal for amendment or resolution. Any such survey should be conducted by an

independent research body to reduce the risk of sectoral bias.

Empirical Research

Another aspect that deserves highlighting is that of empirical research. There is an

extensive literature theorising on the impact of IP law on cultural, social,

psychological and economic aspects of society. Contradictory claims are common.


22

For example, claims are made about how IP law is a prerequisite for the development

of culture, counterpointed by claims that IP law in fact restrains cultural

development.68 Claims are made that IP law restricts the practical freedom of speech,

while other claims assert that copyright enables, in practical terms, free expression.69

Conflicting claims about the economic efficiency of specific IP regulations are also

common.70

This report notes the lack of empirical research in this area. While some empirical

research investigates the economic efficiency of patents,71 there seems little equivalent

for copyright. This may be explained partly by the fact that patents are registered and

appear in corporate portfolios, while copyrights are typically not so registered and

may not appear on any balance sheet. Nevertheless, this phenomenon does not

explain the lack of almost any empirical data.

An example of possible research is to compare the creativity of employees in the

course of their employment with the creativity of freelancers producing similar works

outside an employment relationship. So a comparison which could be made between

the efficiency of the copyright software industry with that of shared open source

software. More generally, research could be carried out to compare the productivity

of creators who own their own copyrights and creators who do not.
23

Empirical research could also examine the psychological impacts of copyright-related

creativity vs. non-copyright-related creativity. Such research might assist in verifying

(or not) recent trends in copyright theories claiming copyright to be essential to the

personhood of authors.72 The theoretical interest of such claims would acquire a new

dimension were they supportable empirically.

68
M Spence 'Passing Off and the Misappropriation of Valuable Intangibles' (1996) 112 LQR 472; PE
Geller 'Must Copyright Be for Ever Caught between Marketplace and Authorship Norms?' in A
Strowel (ed) Of Authors and Origins : Essays on Copyright Law (OUP Oxford 1994) 159; J Gaines
Contested Culture : The Image, the Voice, and the Law (University of North Carolina Press Chapel Hill
1991).
69
RC Denicola 'Copyright and Free Speech: Constitutional Limitations on the Protection of Expression'
(1979) 67 California L Rev 283; P Goldstein 'Copyright and the First Amendment' (1970) 70
Columbia L Rev 983; MB Nimmer 'Does Copyright Abridge the First Amendment Guarantee of Free
Speech and Press?' (1970) 17 UCLA L R 1180; P Samuelson 'Reviving Zacchini: Analyzing First
Amendment Defenses in Right of Publicity and Copyright Cases' (1983) 57 Tulane L Rev 836; N
Weinstock Netanel 'Copyright and a Democratic Civil Society' (1996) 106 Yale L J 283.
70
See above at page 16.
71
See for example: P Geroski, S Machin and J Van Reenan 'The Profitability of Innovation Firms'
[1993] RAND Journal of Economics; Z Griliches 'Market Value, R&D, and Patents' (1981) 7
Economic Letters; PA Hayward and CA Greenhalgh Intellectual Property Resreach: Relevant to
Science and Technology Policy (Economic & Social Research Council 1994).
72
T Palmer 'Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and
Ideal Objects' (1990) 13 Harvard J L & Public Policy 775; L Becker 'Deserving to Own Intellectual
Property' (1993) 68 Chicago-Kent L Rev 609; J Hughes 'The Philosophy of Intellectual Property'
(1988) 77 Georgetown L J 287; MJ Radin 'Property and Personhood' (1982) 34 Stanford L Rev 957.
24

Criteria for and Scope of Protection

Finally, the lack of sufficient research on the criteria for protection and the scope of

this protection should be noted.73

While contemporary literature is preoccupied by IP theory and the adaptation of IP

law to the technological and international arena, perhaps more writing could deal with

basic issues of criteria and scope of protection. For example, originality is an unclear

concept in the present literature;74 other definitional criteria such as what is a “work”

fare little better.

Such deficiencies may foster the feeling that copyright protects a wide range of

products with little in common. A novel is a different kind of original literary work

from a computer program. Yet both come under the same legal umbrella of “literary”

and receive very similar protection. Should their term of protection be the same, or

should their differences (in the process of creativity, economic shelf-life, etc.) imply

that a different scope of protection should be provided?75

The aspect of IP law that differentiates protection according to the type of work

deserves further consideration. While the trend in IP law until now has been to unify

as many IP rights as possible under one heading, perhaps the alternative of specifying

different rights for different works should now also be considered.

73
For references which do deal with these issues see, for example MJ Tawfik '"Aussie Rules" on the
Boundaries of Copyright Protection in Factual Compilations' (2001) 2 Oxford U Commonwealth L J;
NA Voegtli 'Rethinking Derivative Rights' (1997) 63 Brooklyn L Rev 1213; D Vaver 'Rejuvenating
Copyright' (1996) 75 Canadian Bar Rev 69; S Ricketson 'The Boundaries of Copyright: Its Proper
25

Limitations and Exceptions: International Conventions and Treaties' [1999] 1 IPQ 56.
74
T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39
Journal of the Copyright Society of the USA 289; J Reytblat 'Is Originality in Copyright Law a
"Question of Law" or a "Question of Fact?": The Fact Solution' (1999) 17 Cardozo Arts & Ent L J 181;
S Ricketson 'Originality in Anglo-Australian Law' (1991-92) 39 Journal of the Copyright Society of the
USA 265; G Schricker 'Farewell to the "Level of Creativity" (Schopfungshohe) in German Law?'
(1995) 26 IIC 41; MJ Tawfik '"Aussie Rules" on the Boundaries of Copyright Protection in Factual
Compilations' (2001) 2 Oxford U Commonwealth L J . The author of this report has written a Masters
Thesis on this topic. See: Y Mazeh 'Originality as Source': Can the Cirterion for Originality in
Copyright Law Be Justified? (M.Stud Thesis Oxford 2001).
75
T Dreier and G Karnell 'Originality of the Copyright Work: A European Perspective' (1991-92) 39
Journal of the Copyright Society of the USA 289; S Breyer 'The Uneasy Case for Copyright: A Study
of Copyright in Books, Photocopies and Computer Programs' (1970) 84 Harvard L R 281; JC
Ginsburg 'Creation and Commercial Value, Copyright Protection of Works of Information' (1990) 90
Columbia L Rev 1865; D Vaver 'Rejuvenating Copyright' (1996) 75 Canadian Bar Rev 69.

Selected Bibliography

Books and Reports

Websites

http://www.law.cam.ac.uk/ipunit/home.htm

http://www.oiprc.ox.ac.uk/.

http://www.oiprc.ox.ac.uk/EJINDEX.html

http://www.oii.ox.ac.uk/index.shtml

http://www.ccls.edu/iplaw/

http://www.law.berkeley.edu/institutes/bclt/

http://www.kentlaw.edu/islt/

http://www.law.columbia.edu/centers/law&arts.htm

http://www.fpc.edu/.

http://navigation.helper.realnames.com/framer/1000/default.asp?
realname=Intellectual+Property+Mall&cc=US&lc=en
26

%2DUS&frameid=1565&providerid=154&url=http%3A%2F%2Fwww%2Eipmall
%2Efplc%2Eedu

http://techcenter.gmu.edu/

http://www.law.gwu.edu/centers/dinwood.asp

http://cyber.law.harvard.edu/

http://www.law.nyu.edu/ili/index.html

http://law-science-tech.stanford.edu/index2.html

http://ml.ua.es/

http://www.ndsge.ethz.ch/en/index.html

http://www.ceipi.edu/cgi/index_gb.cfm?rep=leceipi

http://www.intellecprop.mpg.de/Enhanced/English/Homepage.HTM

http://wwwlaw.murdoch.edu.au/apipli/main.html
1
This report will use the term ‘copyright’ in general to refer both to copyright and to moral rights.