Universities and copyright: address to Jindal Global Law School

I had the great privilege of being invited to hold a video presentation for a group of Jindal Global Law School, Delhi, intellectual property law students last week Tuesday. This is the text record of that presentation and the questions asked by the students. Especially the questions are incredibly worthwhile looking at because many of them illustrate well the philosophical problems of copyright today.


I'm very happy to be here giving this adress. I'm very honoured to be also at an Indian university presenting on this topic, and I've followed an Indian IP Law blog för some years now. Spicy IP India[1], in case any of you have heard of it. They cover a lot of interesting topics, including copyrights, and I've tried to superficially keep track of that which is going on with universities, students and publishers in India right now[2].

In Sweden, university copying was mostly devastated several years ago. While we had a healthy culture of knowledge dissemination at universities which was of great help to teachers, students, librarians and small copyshops, a reform of the Swedish copyright law in 2005 made this impossible[3]. This reform was in turn caused by a European directive from 2001[4], in which the European Union attempted to harmonize the application of the TRIPS agreement in Europe.

I think at the time time European directive from 2001 was written, not many people anticipated its effects on the many educational institutions in society. To paraphrase a European academic, Professor Bernt Hugenholtz at Amsterdam University[5], it's somewhat ironic that at a time when copyright needed much more flexibility to allow for more creativity, inspiration and more innovation, the legislator did the opposite and made copyright very stringent.

Copyright law is very bloated, and a lot of the laws that we have to deal with today are actually the effect of very clever lobbying in the 1990s.  In a significant number of cases, it also seems that courts are taking increasing liberties to sharpen the legal framework even further[6]. And so, a law which already leaves very little wriggling space for users of culture, and derivative industries such as copyshops outside universities, is interpreted in a such a way that no wriggling space is left. The result is that most people habitually violate copyright on a daily basis, simply because the rules cannot be followed or because they are too unintuitive, and this in turn means that the general respect for the system of law is undermined.

The legislator is clearly facing a delicate task: we have to make laws that people can respect. It is not possible to have a legal framework which works only because most people feel comfortable habitually violating it. It is increasingly my view that legal systems exist to help people solve conflicts, and that laws should be written in a way that helps people ensure that conflicts in society are as few as possible. Copyright law, on the other hand, seems to do the opposite thing: it creates a lot of conflicts, and makes the resulting conflicts very difficult to solve.

Luckily I am not alone in the belief that we need a better legal framework for Europe in the field of copyright. While I have already paraphrased Professor Hugenholtz, he is not by far the only legal scholar criticizing copyright developments[7]. In fact, in Europe as much as in India, universities are at  the forefront of critique of copyright along every discipline. Research libraries, libraries, public service broadcasters and university teachers as well as their students are increasingly critical of a system which makes their activities much more burdensome. The licensing fees are out of control, the amount of permissions that have to be requested administratively impossible.

Even with open access becoming a more normal mode of publishing academic content in Europe, clever publishers are deriving support from a 1997 directive which gives them rights to databases –  even when they cannot control the content as such, they can control the way in which it is distributed. And so one form of harmful monopoly is taken over by another[8], and the legislator is still unable to act.

In the European Union, the European Commission – the executive bransch of the Union – has the right of initiative. This creates problems for the co-legislators, which are the European Parliament (where I work) and the Council of Ministers (a platform for member state cooperation). It means that copyright law will only be reformed if they allow it to be. In the p]ast years they have worked very hard not to have to adress the issue, and in fact they have even neglected duties of investigation imposed on them regarding the implementation of the old directive from 2001. For myself, I have to hope that it will not be possible for them to close their eyes much longer.

In 2013, the Commission attempted to set up a discussion platform for getting more licenses in Europe. It was always difficult to see which particular benefits the Commission thought they would derive from this platform, since the platform was set up specifically to avoid the reform of the copyright law that everyone except the publishers want. And indeed, universities, research funders, libraries and a large group of other stakeholders eventually abandoned the platform in protest of its inability to discuss the real problems of copyright law[9].

This is not to say there is no light. Indeed with more and more persistent pressure from universities, students, teachers, libraries and every negatively affected group in society, a copyright reform can happen. And of course when it does, the European Union's ability to show political and moral leadership in the world will be put to the test – are we able to make a law which is better suited for modern morality and the information society? Will we be able to see the value in a more free information landscape? The freedom and rights to acquire and use culture and information are hard to acquire, but have been let go easily. Now is the time to re-assume our autonomy to decide for ourselves how we see and use information.

[1] http://spicyipindia.blogspot.be/

[2] See here: http://spicyipindia.blogspot.be/2012/09/analysing-delhi-university-v-pub... , http://spicyipindia.blogspot.be/2012/09/delhi-university-must-defend.html and http://spicyipindia.blogspot.be/2013/04/academics-speak-out-in-coursepac... for instance.

[3] http://www.notisum.se/rnp/sls/sfs/20050359.pdf

[4] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:E...

[5] See also http://www.ivir.nl/index-english.html Instituut voor informatierecht at University of Amsterdam.

[6] See extensive criticism on BSA v Czech Republic verdict in CJEU by Cambridge Prof Lionel Bently presented here.

[7] Three-Step Test Declaration with signatories: http://ip.mpg.de/shared/data/pdf/declaration_three_steps.pdf For background see http://www.ivir.nl/publications/hugenholtz/limitations_exceptions_copyri...

[8] In this text, the European Commission concludes that database rights appear to not have been useful for the European market: http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_... They subsequently decided to keep database rights, in case they would turn out to be more useful in the next ten years than in the previous eight.

[9] This statement of leaving Libraries for Europe by a large amount of stakeholders explains: http://www.libereurope.eu/L4Ewithdrawal


Out of my memory here are some questions that were raised:

- Should face paint and other decorative art, such as icing on a cake, be copyright protected?

It is my belief that it's not useful to include such artistic expressions under copyright. Copyright is the right to bring someone in front of a court if they refuse to strike a licensing agreement with you. I can't see how face painting or cake icing is benefitted from the people engaging in those activities having that right. But I see a big deal of legal uncertainties popping up for those who do face paints or cake icing should other people suddenly be allowed to sue them at random. Cost-benefit analysis seems to end on the negative.

- What is the criteria for something being original enough?

I may have remembered this question wrong, but the answer is the same as the one asked by the student: politically we don't decide on the originality criterion interpretation. We decide that works should be original to get protection, and leave the details of originality up to courts. My strong suggestion presently is that courts are interpreting the originality requirement rather broadly and so many things are included in copyright protection spheres that shouldn't be (Maglite cases in Netherlands and Sweden, Infopaq, BSA decisions from the CJEU, among others). But the question is how to deal with that from a legislator's perspective.

- Does originality actually exist?

Philosophically everything is created out of building blocks that already existed. Knowledge, culture and innovation are iterative processes and most of them aren't new or original at all. That presents a problem for the originality requirement, and in patent rights we've seen a very quick degradation of the innovative step requirement because patents are important for transaction opportunities, while most industries are suffering from a lack of really groundbreaking innovation (high-end electronics, pharmaceuticals, but even thermodynamical innovations or agricultural innovations being notable). It would be easier if copyright were seen only as an industry support regime - if we saw it as an economic right only, rather than a spiritual or natural right, we could also deal better with the fact that most things aren't very original or creative at all, even if they could use some form of market intervention in their favour. But we know from for instance Sweden that most people will consider copyright a cultural policy rather than an economic policy. That is problematic, but also a problem of inadequate information to the public about the legal regime they find themselves in.


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