From birth to freedom - A proposal about copyright

This ArTicle suggesTs A pATh To develop A principled concepTuAlizATion for copyright of limitations and exceptions at the international level. The paper argues that, normatively, copyright has always sought to reflect a balance between protection and access. It demonstrates that this balance was present to the minds of the negotiators of the 1886 Berne Convention for the Protection of Literary and Artistic Works and may have been somewhat overlooked in revisions of the Convention. It was ultimately replaced by a three-step test designed to restrict the ability of individual legislators to create limitations and exceptions. The article also considers the conflicts between copyright and rights such as the right to privacy, human rights principles of free expression and cultural diversity, the right to information, the right to education, and the nascent right to development, all of which imply striking a balance in intellectual property protection. The article begins with a historical look at the public interest foundations of the Berne Convention and its revisions until 1971. The article then proceeds to a conceptualization of limitations and exceptions in order to show the policy linkages of each type of exception and proposes a set of principles for limitations and exceptions. The article also examines the meaning and impact of the three-step test because it would be pointless, not theoretically, but from a policy perspective, to ignore the application of the test in suggesting international principles for limitations and exceptions.

2011

In organising this conference it was my aim to put focus on the way in which copyright law might be used to incentivize both creativity and dissemination. In itself that is not such a revolutionary ideal. Creativity and dissemination have been the key components of copyright law since the Statute of Anne was first enacted in 1710. 1

Bepress Legal Series, 2006

2007

2004

Copyright exhibits means and ends remarkably similar to those of social welfare programs. Yet discussions about copyright do not tend to echo discussions about welfare. This paper examines that interesting contrast. It begins by comparing social welfare policy to copyright policy, uncovering several material parallels. Both welfare and copyright primarily aim to correct the market's failure to sufficiently support a particular class of beneficiaries. Both encourage rights-based claims to the entitlements that they create, too. The welfare system and the copyright system each uses statutory mechanisms to redistribute rights-rights to wealth in the first instance, rights to chattels and persons in the second-from the general public to particular beneficiary classes-the poor and authors, respectively. Each also includes special exceptions designed to avoid inefficient or inequitable redistributions. The charitable gift deduction and other tax code provisions limit the welfare system's scope, whereas copyright law offers fair use and other defenses to infringement claims. Perhaps those and other similarities between welfare and copyright mean little. After considering various critiques, however, the paper concludes that we can learn important lessons from understanding copyright as a statutory mechanism for redistributing rights. Most notably, understanding copyright as a form of authors' welfare suggests the need for, and potential shape of, reforms to end copyright as we know it.

This Article suggests a path to develop a principled conceptualization for copyright of limitations and exceptions at the international level. The paper argues that, normatively, copyright has always sought to reflect a balance between protection and access. It demonstrates that this balance was present to the minds of the negotiators of the 1886 Berne Convention for the Protection of Literary and Artistic Works and may have been somewhat overlooked in revisions of the Convention. It was ultimately replaced by a three-step test designed to restrict the ability of individual legislators to create limitations and exceptions. The article also considers the conflicts between copyright and rights such as the right to privacy, human rights principles of free expression and cultural diversity, the right to information, the right to education, and the nascent right to development, all of which imply striking a balance in intellectual property protection. The article begins with a historical look at the public interest foundations of the Berne Convention and its revisions until 1971. The article then proceeds to a conceptualization of limitations and exceptions in order to show the policy linkages of each type of exception and proposes a set of principles for limitations and exceptions. The article also examines the meaning and impact of the three-step test because it would be pointless, not theoretically, but from a policy perspective, to ignore the application of the test in suggesting international principles for limitations and exceptions.

Contemporary Intellectual Property

This chapter considers the evolution of modern copyright law against the background of its historical development in the UK and the international and European legal frameworks within which UK copyright law has been increasingly set since the nineteenth century. It examines the rationale and justifications for copyright and identifies the general policy context within which law and policy has developed in the UK and the EU. It also highlights the rapid development of new technologies which has brought copyright reform to the forefront in recent times, the difficulties which this new environment presents for the copyright framework, and how the framework has developed to such challenges.

If the social system is supported on a communicatively consensual basis, the way in which contents flow through media to people is decisive in shaping of such society. Legally, media and contents are managed by a set of rules, one of which is copyright. Copyright regulates in a general sense the possible forms of exchange of knowledge in a given society. Such a regulation is based on three main pillars: Firstly, the notion of subject (individual); secondly, the notion of property; and thirdly, accepting that knowledge (culture, education, information) is a social necessity. The effective interaction of these three factors softens the structure of a society based on knowledge.

Copyright is living through confusing years. This confusion is due to the erosion of a systematic approach to the boundaries of this area and, consequently, to the interests that copyright should protect. When investigating the relationship between copyright and fundamental rights, the first questions an intellectual property scholar should ask are: what does copyright protect? What are the interests that copyright effectively safeguards? Why should copyright be included in the list of fundamental rights? Instinctively, it could be argued that copyright should be focused on the development of culture and art. In all the international conventions, and in the recitals of the European Union (EU) directives devoted to copyright, the protection of creativity, art and culture is a common reference, but is it a declamatory or an effective reference? Is it a tinsel to embellish the legislative text or a form of respect towards legal traditions? The rationale of copyright protection is to be sought at a deeper level, also taking into account the necessity of determining economic incentives for the authors, and for the cultural industry as a whole.1 This chapter aims to briefly analyse how the economic and moral aspects of copyright affect the attempt to investigate whether copyright is a fundamental right, how systematically copyright is placed among other fundamental rights, and the balance, in cases of conflict, between copyright and other fundamental rights.

Ordine internazionale e diritti umani, 2019