Law and Information

Over the past few months, I’ve been working on a couple of Berkman papers on developments in international and national copyright laws as far as digital media is concerned. I’ve been looking at U.S. law, at the legislative and regulatory developments in Europe (both EU legislation and national implementations of EU law), and at selected jurisdictions in the Asia-Pacific region such as Australia, Singapore, Malaysia, China, Japan, and South Korea. The papers provide a rough overview of the copyright laws and regulations in these countries, and analyze the different paths and stages of evolution of the international copyright ecosystem. The reports also describe the current state of digital media law in action.

Currently, I’m working on one of the reports’ conclusion section. As always, it’s quite a challenge to come up with “crispy” takeaway points. Well, here’s the way I intend to frame it; any feedback is very much appreciated.

It seems to me that one might roughly distinguish between three stages of development of copyright protection across the world:

1) Copyright laws at a very nascent stage. Copyright laws of countries in this category do either not exist at all, or have not incorporated the relevant protection levels set forth by the Berne Convention or TRIPS.

2) Copyright (IP) laws that are TRIPS compliant.

3) Copyright laws that have incorporated the WIPO treaties or are otherwise in compliance with WCT/WPPT.

These categories, in turn, say something important about the driving forces of copyright legislation across the globe. By and large, TRIPS has become the major force aimed at creating a level playing field of IP protection in many parts of the world. It strikes me that TRIPS, today, is particularly important in the transition from “nascent” to “well-developed” copyright regimes. The implementation of the WIPO treaties, in contrast, can be understood as the “fine-tuning” of copyright legislation – from “well-developed” to “advanced”, so to speak. One other important driving force hasn’t been mentioned here, but is discussed in the papers: bilateral free trade agreements (such as the AUSFTA and the USSFTA.)

The second question is: What are the effects of the international treaties and bilateral trade agreements on copyright legislation? Well, it’s quite obvious: The international treaty system works as a leveler and harmonizes the fundamental issues and corner stones of a copyright system. However, the Berkman papers will also demonstrate that significant differences among national laws remain. Even if we look at countries that are in compliance with the WIPO treaties, we find different approaches, especially with regard to definitions (e.g. of technological protection measures), exceptions (e.g. private copying), and sanctions/remedies against infringements. Another addendum is necessary: The digital media landscape across the globe – even the most “advanced” – also varies significantly when it comes to the “law in action.” The reasons are manifold and include huge differences in civil and criminal procedure laws as well as, of course, economic, cultural, historical… differences in law enforcement practices. However, the papers will also illustrate that law enforcement – as far as online piracy is concerned – is increasingly an internationally orchestrated multi-actor (rightholders, rights organizations, governmental task-forces, etc.) effort.

The third question I’d like to touch upon is: what are the effects of international copyright frameworks and corresponding national legislation on any given information environment? Here, one might want to distinguish between four stakeholders: Users/consumers, rightholders, businesses, and policy-makers. Unfortunately, I do not have much empirical data to support potential claims about the effects of legislative developments on each category. However, anecdotal evidence suggests certain trends. In essence, one might argue that the “most advanced” copyright systems have a bias towards protection of rightholders and businesses at the cost of users. Especially the review of current case law in European jurisdictions suggests that this trend is not only a U.S. phenomenon, but structural in nature. (To be sure: the interactions among contract and copyright law, technology, and business models are rather complicated. You’ll find an analysis of the interplay between these elements in our iTunes case study.) One final point with regard to policy-makers: The papers will demonstrate that policy-makers – at the national level – still have some leeway in the way they design their copyright ecosystem, despite international harmonization.

Against this backdrop, my research interest moves towards “best practice models” in the digital age. Stay tuned. (BTW, I’ll link to the above mentioned papers as soon as they become available.)