Law and Information

I just got back from a conference on “Legal Institutions and Entrepreneurship” at Stanford, organized by the Gruter Institute for Law and Behavioral Science and the Kauffman Foundation. Experts from various disciplines, including biology, neuro-economics, zoology, and business studies, among others, discussed the question how innovative entrepreneurship (in the Schumpeterian sense) can be facilitated by legal institutions and alternative institutional arrangements like, for instance, reputation systems.

In my contribution, I presented the idea of a “legal lab” analogous, for instance, to the MIT’s media lab, which would be devoted to the study of innovations within the legal/regulatory system itself and would experiment with innovative institutional regimes (e.g. using virtual worlds such as Second Life as rich social environments). Together with my St. Gallen collaborators Herbert Burkert and Patrick Gruendler as well as with my colleagues and friends at the Berkman Center, John Palfrey and Colin Maclay, I’ve been working on this idea for some months, and I’m thrilled that several conference participants – including Judith Donath and Oliver Goodenough – will help us to work towards a project proposal in the weeks to come.

In my formal presentation, I attempted to frame the main research topics at the heart of the law & entrepreneurship debate by offering an initial mental map, consisting of three related, but analytically distinct clusters of research.

1. The first cluster deals with a set of rather fundamental questions concerning the basic relationship between the legal system and entrepreneurship.

Traditionally – and in the US in particular – law has been perceived as a constraint on behavior. Entrepreneurs, in contrast, are in the rule-breaking business. Entrepreneurship is very much about creative anarchy, as Deborah Spar eloquently described it, and from this angle law is usually perceived as an obstacle to innovation and entrepreneurship. However, a number of scholars – most prominently Viktor Mayer-Schoenberger in a recent paper – have demonstrated that the relation and interaction between the legal system and entrepreneurship is more complex.

In my view, the relation is at least three-dimensional: (a) law can foster entrepreneurship innovation (e.g. by providing incentives for creativity = IPR), (b) it can be in a neutral relationship, or (c) may indeed hinder innovation (e.g. overly protective labor laws). Where law has a positive impact, it does so, as Mayer-Schoenberger argues, in its potential function as a leveler (e.g. lowering market entry barriers), protector (e.g. property rights, limitation of liability), or enforcer (esp. in case of contractual arrangements).

2. A second area of research seeks to gain a deeper, much more granular understanding of the interactions among the legal system, innovation, and entrepreneurship.

Within this cluster, one might roughly distinguish between two research initiatives: First, there are attempts aimed at exploring the various elements of the legal ecosystem and its impact on entrepreneurship. Such attempts need to be sensitive to varying contexts, sectors, and cultures (e.g. interplay among the elements is different in ICT market vs. biotech sector; or picture may look very different when it comes to low-income vs. high-income countries).

One example in this category is an earlier Berkman project on digital entrepreneurship that focused on low-income countries. Based on case studies of national innovation policies and successful entrepreneurial projects, we identified the relevant elements and aspects of the legal ecosystem and evaluate their influence on entrepreneurship. We clustered the elements in two basic categories: substantive areas of law and legal process issues. Our big-picture take-away: When it comes to the impact of law on entrepreneurship, much depends on the specific economic, societal, and cultural circumstances.

The second debate with this research cluster relates to the different approaches and regulatory techniques that can be used by law – and their promises and limits when it comes to entrepreneurship. This includes research on different types and forms of regulation, such as direct vs. indirect regulation (e.g. regulation of capital markets); framework regulation, self-regulation, incentive-based regulation, command-and-control, etc. Cross-sectional challenges that occur when law seeks to regulate innovation and entrepreneurial activities, too, fall into this category, including questions such as justification of legal intervention (e.g. fostering economic growth, encouraging spillover effects), prioritization (good legislation as a scarce resource!), timing, trade-offs (e.g. between innovation and risk prevention), how to ensure that the legal system can learn, etc.

3. The third cluster is less analytical and more design-oriented. Again, one can differentiate between two perspectives: One the one hand, how to optimize existing legal institutions to foster entrepreneurship. On the other hand, what are more radical innovations within the legal system itself aimed at facilitating innovative entrepreneurship?

As far as the first aspect – optimization or improvements – is concerned, a number of law reform projects on both sides of the Atlantic are illustrative, all of which claim to facilitate entrepreneurship. Currently, the probably hottest topic is the reform of the patent system in the U.S. Several tax reform projects in Europe are also linked to entrepreneurship. In corporate law, the creation of exemptions for smaller companies – aimed at reducing the regulatory burden, esp. in areas such as accounting and reporting obligations – are further examples.

But there’s a more fundamental design question lurking in the background: Are we working with the right assumptions when creating legal rules aimed at fostering entrepreneurship? Essentially, there are two black boxes when it comes to innovation and entrepreneurship:

(1) Regulators often have an over-simplified understanding of the creative processes that lead to innovation. The case in point is certainly the digitally networked economy, with the prominent phenomenon of collaborative creativity and the innovative potential of networks. Behavioral law & economics is in this context particularly important when we seek to understand the underlying mechanisms, and the findings have relevance for instance in the area of IPR systems (with its traditional single inventor/author paradigm, linear innovation as archetype), but also for corporate law (e.g. providing fora for new, highly dynamic, network-based forms of collaboration.)

(2) We don’t understand the entrepreneur’s calculus very well. Mayer-Schoenberger in the paper mentioned above has made this point: How important is predictability and legal certainty? How does risk evaluation really work in the case of innovative entreprneurs? How can law shape these processes? This research cluster is less about substantive areas of law rather than about key variables, such as “incentives”, “risks” and “flexibility”, which may be shaped by using different legal tools (ranging from safe harbor provisions to innovative licensing schemes).

4. Looking forward and in conclusion, I propose the building of an international network of researchers who work on the three clusters mentioned above. In a first step, it would be important to take stock and share existing findings based on which a shared research agenda can be developed.

From a legal/regulatory perspective, a research agenda could focus on three tasks and topics, respectively:

• First, drafting a number of case studies based on which the interactions between legal institutions and entrepreneurship can be studied in greater detail, across different setting and cultures. Macro-level case studies on national legislative programs and policies (e.g. Singapore, Hong Kong) would be supplemented by micro-level case studies about successful entrepreneurs and their projects/firms/etc.

• Based on this research, the research network could second work towards a theory of law, innovation, and entrepreneurship, which would include both normative and analytical/methodological components.

• Third, the research network could establish a “legal lab” that deals with innovation within the legal system itself (see above). Virtual worlds like SL could be used for experiments with alternative institutional designs and to measure their impact on innovation in complex environments.

Here in Ottawa, I had the pleasure to speak at the OECD Technology Foresight Forum of the Information, Computer and Communications Policy Committee (ICCP) on the participative web – a forum aimed at contributing to the OECD Ministerial Meeting “The Future of the Internet Economy” that will take place in Seoul, Korea, in June 2008.

My remarks (what follows is a summary, full transcript available, too) were based on our joint and ongoing Harvard-St.Gallen research project on Digital Natives and included some of the points my colleague and friend John Palfrey and I are making in our forthcoming book “Born Digital” (Basic Books, 2008).

I started with the observation that increased participation is one of the features at the very core of the lives of many Digital Natives. Since most of the speakers at the Forum were putting emphasis on creative expression (like making mash-ups, contributing to Wikipedia, or writing a blog), I tried to make the point that participation needs to be framed in a broad way and includes not only “semiotic democracy”, but also increased social participation (cyberspace is a social space, as Charlie Nesson has argued for years), increased opportunities for economic participation (young digital entrepreneurs), and new forms of political expression and activism.

Second, I argued that the challenges associated with the participative web go far beyond intellectual property rights and competition law issues – two of the dominant themes of the past years as well as at the Forum itself. I gave a brief overview of the three clusters we’re currently working on in the context of the Digital Natives project:

• How does the participatory web change the very notion of identity, privacy, and security of Digital Natives?
• What are its implications for creative expression by Digital Natives and the business of digital creativity?
• How do Digital Natives navigate the participative web, and what are the challenges they face from an information standpoint (e.g. how to find relevant information, how to assess the quality of online information)?

The third argument, in essence, was that there is no (longer a) simple answer to the question “Who rules the Net?”. We argue in our book (and elsewhere) that the challenges we face can only be addressed if all stakeholders – Digital Natives themselves, peers, parents, teachers, coaches, companies, software providers, regulators, etc. - work together and make respective contributions. Given the purpose of the Forum, my remarks focused on the role of one particular stakeholder: governments.

While still research in progress, it seems plain to us that governments may play a very important role in one of the clusters mentioned above, but only a limited one in another cluster. So what’s much needed is a case-by-case analysis. I briefly illustrated the different roles of governments in areas such as

• online identity (currently no obvious need for government intervention, but “interoperability” among ID platforms on the “watch-list”);
• information privacy (important role of government, probably less regarding more laws, but better implementation and enforcement as well as international coordination and standard-setting);
• creativity and business of creativity (use power of market forces and bottom-up approaches in the first place, but role of governments at the margins, e.g. using leeway when legislating about DRM or law reform regarding limitations and exceptions to copyright law);
• information quality and overload (only limited role of governments, e.g. by providing quality minima and/or digital service publique; emphasis on education, learning, media & information literacy programs for kids).

Based on these remarks, we identified some trends (e.g. multiple stakeholders shape our kids’ future online experiences, which creates the need for collaboration and coordination) and closed with some observations about the OECD’s role in such an environment, proposing four functions: awareness raising and agenda setting; knowledge creation (“think tank”); international coordination among various stakeholders; alternative forms of regulation, incl. best practice guides and recommendations.

Berkman Fellow Shenja van der Graaf was also speaking at the Forum (transcripts here), and Miriam Simun presented our research project at a stand.

Today and tomorrow, the OECD delegates are discussing behind closed doors about the take-aways of the Forum. Given the broad range of issues covered at the Forum, it’s interesting to see what items will finally be on the agenda of the Ministerial Conference (IPR, intermediaries liability, and privacy are likely candidates.)

Today in Hong Kong, I’ve had the pleasure to catch up with some of my colleagues and friends who are living and working in Asia. The conversation with Rebecca MacKinnon, my former Berkman fellow Fellow and now assistant professor at the University of Hong Kong’s Journalism and Media Studies Center, resonates in particular. We touched upon several themes and topics in which we share an interest, ranging from Chinese culture, U.S. foreign politics, to corporate social responsibility, among many others. We then started talking about the digital natives project(s), and youth and new media research questions (Rebecca actually teaches “new media” at HKU). Starting from different places and looking from different perspectives, we concluded that two (related) sets of question will likely end up being on our shared research agenda for the months to come.

• First, media literacy and education of digital natives. While media education in the digital environment has become an important topic especially in the U.K. through the work of Ofcom and experts like Professor David Buckingham and Professor Sonia Livingstone, it’s still in its infancy in many other parts of the world. From all I’ve learned now in the context of our digital native project – and from what I know about the current state of neuroscience with regard to cognitive and emotional development – its seems crucial to start with media education at pre-school or primary school level at latest. If anyone has pointers to good web resources, case studies and/or curricula in this area, please drop me a note.

• Second, users rights and responsibilities in the digital environment. This issue is obviously related to the first one and concerns the question as to what extent our societies do provide mechanisms to have a discourse about our rights, but also responsibilities (and that’s where it gets tricky from a political perspective) as empowered users in the digitally networked environment. While great work has been done with regard to the “rights”-part of the discussion – largely driven by NGOs and consumer protection organizations (see here for a recent example) – we may need to figure out in the near future how to address also the question of the new responsibilities as “speakers” that are associated with the fundamental shift from passive consumers to active users. Interestingly, the role of citizens as producers of information has reportedly been addressed in a (if I recall correctly: still unpublished) draft of an information freedom act in an Eastern European country. Legislation, however, is most likely not the right starting place for such a discussion, I would argue.

In short, more food for thought – and additional research tasks for our digital native team. (Thanks, Rebecca, for a great conversation.)

Over the past two days, I had the pleasure to co-moderate with my colleagues and friends Prof. John Palfrey and Colin Maclay the second Berkman/St. Gallen Workshop on ICT Interoperability and eInnovation. While we received wonderful initial inputs at the first workshop in January that took place in Weissbad, Switzerland, we had this time the opportunity to present our draft case studies and preliminary findings here in Cambridge. The invited group of 20 experts from various disciplines and industries have provided detailed feedback on our drafts, covering important methodological questions as well as substantive issues in areas such as DRM interoperability, digital ID, and web service/mash ups.

Like at the January workshop, the discussion got heated while exploring the possible roles of governments regarding ICT interoperability. Government involvement may take many forms and can be roughly grouped into two categories: ex ante and ex post approaches. Ex post approaches would include, for example, interventions based on general competition law (e.g. in cases of refusal to license a core technology by a dominant market player) or an adjustment of the IP regime (e.g. broadening existing reverse-engineering provisions). Ex ante strategies also include a broad range of possible interventions, among them mandating standards (to start with the most intrusive), requiring the disclosure of interoperability information, labeling/transparency requirements, using public procurement power, but also fostering frameworks for cooperation between private actors, etc.

There was broad consensus in the room that governmental interventions, especially in form of intrusive ex ante interventions, should be a means of last resort. However, it was disputed how the relevant scenarios (market failures) might look like where governmental interventions are justified. A complicating factor in the context of the analysis is the rapidly changing technological environment that makes it hard to predict whether the market forces just need more time to address a particular interoperability problem, or whether the market failed in doing so.

In the last session of the workshop, we discussed a chart we drafted that suggests steps and issues that governments would have to take into consideration when making policy choices about ICT interoperability (according to our understanding of public policy, the government could also reach the conclusion that it doesn’t intervene and let the self-regulatory forces of the market taking care of a particular issue). While details remain to be discussed, the majority of the participants seemed to agree that the following elements should be part of the chart:

1. precise description of perceived interoperability problem (as specific as possible);
2. clarifying government’s responsibility regarding the perceived problem;
3. in-depth analysis of the problem (based on empirical data where available);
4. assessing the need for intervention vis-à-vis dynamic market forces (incl. “timing” issue);
5. exploring the full range of approaches available as portrayed, for example, in our case studies and reports (both self-regulatory and regulation-based approaches, including discussion of drawbacks/costs);
6. definition of the policy goal that shall be achieved (also for benchmarking purposes), e.g. increasing competition, fostering innovation, ensuring security, etc.

Discussion (and research!) to be continued over the weeks and months to come.

I’ve had the great pleasure to celebrate today the launch of the most comprehensive and rigorous study on state-mandated Internet filtering with my colleagues and friends from the Berkman Center and the OpenNet Initiative, respectively. It was an inspired and inspiring conference here at Oxford University, and after a long day of debate it seems plain to me that the filtering reports from 41 countries presented today will keep us busy for the weeks and months to come.

Extenisve coverage both in traditional media (sse, e.g., BBC) and the blogosphere.

In the closing session, Professor John Palfrey, one of the principle investigators (check out his blog), was kind enough to put me on spot and ask for my take away points. Given the complexity of the information ecosystem including its diverse filtering regimes, it seems hard to come up with any kind of conclusion at this early stage. However, among the probably trickiest problems we might want to think about is the question whether we – as researchers – want and should contribute to the development of some sort of best practice model of speech control on the Internet – a model aimed at “minimizing” the harm done to free speech values in a world where filtering and blocking is likely to continue to exist-, or whether such an endeavor would be counterproductive under any circumstances, either because it would be immediately hijacked by governments to legitimize filtering or used by repressive regimes to make filtering more effective.

Having only a tentative answer to that question, we at the St. Gallen Research Center have started to brainstorm about ways in which various governance approaches to content filtering – focusing on filtering regimes in European countries and the U.S. – could be systematically mapped, analyzed, and compared. So far, we have come up with a set of six guiding questions:

1. Who is obliged or committed to block of filter content?
2. How do the obliged actors become aware of the content that has to be blocked?
3. Who determines what content has to be blocked, and how?
4. What technical means (such as, e.g., IP blocking, URL filtering, etc.) are used?
5. What are the procedural requirements and safeguards in the filtering process?
6. Who sets the rules, under which conditions?

The second issue we’re currently debating is how different filtering regimes can be evaluated, i.e., how the benchmarks for online speech control might look like. In this context, we’re considering the application of generic characteristics of good regulation – including criteria such as efficiency, due process, transparency, accountability, and expertise, among others - to online filtering regimes.

What are your thoughts on this idea as well as on the basic question whether we should get involved in a best practice discussion – even (or especially) if we believe in the power of a marketplace of ideas? Comments, as always, most welcome.

The University of St. Gallen has been the first Swiss university that has implemented the principles and standards set forth in the so-called Bologna Declaration aimed at harmonizing the European Higher Education System (more on the Bologna process here.) As a result, the St. Gallen law school offers two Master programs for J.D. students: Master of Arts in Legal Studies, and Master of Arts in Law and Economics.

Recently, I have been heavily involved in the law and economics program (I should mention that St. Gallen doesn’t follow the rather traditional approach to law and economics that is predominant among U.S. law schools. Click here for a brief description of the St. Gallen interpretation of law and economics). Today is a special day for the program’s faculty and staff, because the first generation of students enters the final 10th semester of the Bologna-compatible Master program. Arguably, this 10th semester is rather unique as far as structure and content is concerned. Instead of providing the usual selection of courses for graduate students, we have designed what we call an “integrating semester” in which all students are required to take three (but only three) full-semester courses aimed at “integrating” the knowledge, skills, and methods they have acquired over the past few years. All three seminars – together worth 30 credits – are designed and taught by an interdisciplinary group of faculty members from the University of St. Gallen and beyond, including legal scholars, economists, business school profs, technologists, etc. The first seminar, led by Professor Peter Nobel, Thomas Berndt, Miriam Meckel and Markus Ruffner, is entitled Law and Economics of Enterprises and deals with risk and risk management of multinational corporations. The second seminar, led by Professor Beat Schmid and me, concerns legal, economic, and business aspects of intellectual property rights in the digital age. Professors Hauser, Waldburger, and van Aaken, finally, are teaching the third seminar entitled Law and Economics of Globalization, addressing issues such as world market integration of low-income countries, foreign investments, global taxation, and regulation of multinational enterprises.

My seminar on law and economics of IPR in the digital age starts with a discussion of basic concepts of economic analysis of intellectual property law and a stock-taking of the main IPR-problems associated with the shift from an analog/offline to a digital/online environment. It then follows a module in which we will explore three key topics in greater detail: digital copyright, software and business methods patents, and trademarks/domain names. Towards the end of the semester, we will then try to tie all the elements together and develop a cross-sectional framework for economic analysis and assessment of IPR-related questions in the digitally networked environment. In this context, we will also be visiting the Swiss Federal Institute of Intellectual Property (in charge, among other things, with working on IP legislation in Switzerland), where we will discuss the promises and limits of economic analysis of IP law with the Institute’s senior legal advisor and the senior economic advisors.

Clearly, we have a very ambitious semester ahead. I’m particularly thrilled that a wonderful group of colleagues from Europe and abroad is helping me to do the heavy lifting (of course, my wonderful St. Gallen team is very involved, too, as usual.). My colleague and friend John Palfrey, Clinical Professor of Law at Harvard Law School, the Berkman Center’s executive director, and member of the board of our St. Gallen Research Center for Information Law, will be discussing with us thorny digital copyright issues and future scenarios of digital media. Klaus Schubert, partner of WilmerHale Berlin, will be guiding us through the software patents and business methods patents discussion. Last but not least, Professor Philippe Gillieron from the University of Lausanne will be speaking about trademark law in the digital age, focusing on domain name disputes.

All sessions are (hopefully) highly interactive. The students will contribute, among other things, with discussion papers, term papers, group presentations, and will participate in mock trials (one on Google’s recent copyright case in Europe), Oxford debates, and the like. Unfortunately, the Univ. of St. Gallen is still using a closed online teaching system called StudyNet, but if you’re interested in the Syllabus, check it out here. Comments, thoughts, suggestions, etc. most welcome!

My colleague and friend Dr Ian Brown, co-leader of the EUCD best practice project (check out the wiki and the project report), has posted a great article written for the EDRI-gram on the International Intellectual Property Alliance’s (IIPA) recent recommendations to the US Trade Representative’s 2007 review of global copyright laws. Ian concludes:

It is not surprising that US companies lobby to change global laws that would increase their profits. On past performance, the US government is likely to take careful note of their recommendations. But European nations should robustly defend their right to shape copyright policy to meet the needs of their own citizens, and not just those of large copyright holders.

I hope the EUCD best practice project mentioned above and similar initiatives support European policy makers in identifying the leeway they have under the WIPO Internet Treaties and the EUCD when shaping their copyright and DRM frameworks.

We have teamed up with the Berkman Center on an ambitious transatlantic research project on ICT interoperability and e-innovation. Today, we have been hosting a first meeting to discuss some of our research hypotheses and initial findings. Professor John Palfrey describes the challenge as follows:

This workshop is one in a series of such small-group conversations intended both to foster discussion and to inform our own work in this area of interoperability and its relationship to innovation in the field that we study. This is among the hardest, most complex topics that I’ve ever taken up in a serious way.

As with many of the other interesting topics in our field, interop makes clear the difficulty of truly understanding what is going on without having 1) skill in a variety of disciplines, or, absent a super-person who has all these skills in one mind, an interdisciplinary group of people who can bring these skills to bear together; 2) knowledge of multiple factual settings; and 3) perspectives from different places and cultures. While we’ve committed to a transatlantic dialogue on this topic, we realize that even in so doing we are still ignoring the vast majority of the world, where people no doubt also have something to say about interop. This need for breadth and depth is at once fascinating and painful.

As expected, the diverse group of 20 experts had significant disagreement on many of the key issues, especially with regard to the role that governments may play in the ICT interoperability ecosystem, which was characterized earlier today by Dr. Mira Burri Nenova, nccr trade regulation, as a complex adaptive system. In the wrap-up session, I was testing – switching from a substantive to a procedural approach – the following tentative framework (to be refined in the weeks to come) that might be helpful to policy-makers dealing with ICT interoperability issues:

1. In what area and context do we want to achieve interoperability? At what level and to what degree? To what purpose (policy goals such as innovation) and at what costs?
2. What is the appropriate approach (e.g. IP licensing, technical collaboration, standards) to achieve the desired level of interoperability in the identified context? Is ex ante or ex post regulation necessary, or do we leave it to the market forces?
3. If we decide to pursue a market-driven approach to achieve it, are there any specific areas of concerns and problems, respectively, that we - from a public policy perspective – still might want to address (e.g. disclosure rules aimed at ensuring transparency)?
4. If we decide to pursue a market-based approach to interoperability, is there a proactive role for governments to support private sector attempts aimed at achieving interoperability (e.g. promotion of development of industry standards)?
5. If we decide to intervene (either by constraining, leveling, or enabling legislation and/or regulation), what should be the guiding principles (e.g. technological neutrality; minimum regulatory burden; etc.)?

As always, comments are welcome. Last, but not least, thanks to Richard Staeuber and Daniel Haeusermann for their excellent preparation of this workshop.

The EU commission recently released an impressive 280+ pp. study on the economic impact of open source software on innovation and the competitiveness of the ICT sector in the EU. The report analyzes, among other things, FLOSS’ market share, and its direct and indirect economic impacts on innovation and growth. It also discusses trends and scenarios and formulates policy recommendations. Some of the findings that I find particularly interesting:

• Almost two-thirds of FLOSS is written by individuals, while firms contribute about 15% and other institutions 20%. The existing base of FLOSS software represents about 131.000 real person-years of effort.
• Europe is the leading region as far as the number of globally collaborating FLOSS developers and global project leaders are concerned. Weighted by average income, India is the leading provider of FLOSS developers, followed by China.
• The existing base of quality FLOSS applications would cost firms almost 12 billion Euros to reproduce internally. The code base has been doubling every 12-24 month. FLOSS potentially saves the industry over 36% in software R&D investment.
• FLOSS is an important growth factor for the European economy. It encourages the creation of SMEs and jobs and is unlikely to cannibalize proprietary software jobs. The FLOSS-related share of the economic could reach 4% of the European GDP by 2010.
• Europe’s strength regarding FLOSS are its strong community of active developers, small firms, and secondary software industry. In contrast, a generally low level of ICT investment and a relatively low rate of FLOSS adaptation by large industry (if compared to U.S.) are among its weaknesses.

As to policy recommendations, the report suggests a focus on the correction of existing policies and practices that currently favor proprietary software. Among the recommendations: support FLOSS in pre-competitive research and standardization; encourage partnerships among large firms, SMEs and FLOSS communities; provide equitable tax treatment for FLOSS creators.

We have just released our EUCD best practice guide. The report, sponsored by the Open Society Institute (OSI), provides a set of recommendations for transposing the EU Copyright Directive (EUCD) into the national copyright frameworks of accession states and candidate countries. The guide, which could also inform future law reform in existing member states and is related to stock-taking studies such as the Gowers Report (released yesterday) and the forthcoming official review of the EU copyright framework, is based on a peer-produced compilation and comparison of existing EUCD implementations across the EU.

The best practice guide takes a closer look at four clusters of legal issues typically associated with EUCD-implementation. First, in a cross-sectional manner, it provides recommendations regarding the implementation of the EUCD’s anti-circumvention provisions (i.e., legal protection of technological protection measures). Second, it suggests a series of principles in areas of copyright law that shape the ways in which we – as peers – can produce and distribute information. The third section deals with universal access issues, including teaching and research exceptions, exceptions for libraries, archives, and the like, and copyright exceptions for disabled people. Third, the document provides recommendations with regard to selected copyright provisions that have an impact on political and cultural participation.

Here is an overview of the recommendations we’ve made:

Anti-circumvention provisions

• In order to avoid unintended consequences in general and spillover effects of anti-circumvention legislation in particular, (a) define the subject matter and scope of TPM as narrow as possible; (b) choose a liberal approach to exceptions and limitations and make sure that beneficiaries of exceptions can enjoy them; and (c) take a minimalist approach to sanctions and remedies for the violation of anti-circumvention provisions.
• Provide a definition of the circumstances (“minimum threshold”) under which TPM are considered to be “effective”.
• To the extent possible, limit the scope of prohibited circumvention-relevant conduct to situations where circumventions would lead to actual infringement of copyright.
• Immediately establish a mechanism for the enforcement of copyright exceptions vis-à-vis TPM and in the absence of voluntary measures by right-holders. Provide for an easily accessible and effective enforcement mechanism.
• Incorporate a private copying right vis-à-vis TPM analog to traditional private copying exceptions in order to foster access to information, knowledge, and entertainment.
• Use discretion with regard to sanctions and penalties and adhere to the principle of proportionality. Consider limitations on criminal and civil liability for non-profit organizations such as libraries, archives, etc., flexible sanctions for innocent infringers, and limitations on sanctions for legitimate purposes such as research and teaching.

Peer collaboration & distribution

• Provide for a broad private copying exception that is applicable to both analog/offline and digital/online works.
• Use discretion with regard to sanctions and penalties imposed on illegal file-sharing (uploading) and adhere to the principle of proportionality. Consider limitations on criminal and civil liability for small-scale infringements.
• Provide for a private copying exception that encompasses the act of downloading copyrighted material from the Internet, including from P2P file-sharing networks, regardless of the lawfulness of the master copy or the distribution platform.

Universal Access

• Provide a broad teaching exception that not only covers materials for face-to-face use in the classroom of educational facilities, but also the use of works at home for studying purposes. The preparation and post-processing of courses at educational institutions should be included as well.
• Implementations should not (further) limit the scope of the teaching exception as stipulated in the EUCD. Instead, provide for open definitions of the limitations on exempted uses for teaching purposes.
• Transpose the quotation exception by allowing quotations in multimedia works with an educational purpose or within instructions and textbooks for educational use.
• Provide for an exception that allows publicly accessible libraries and archives as well as documentation centers to make copies of entire works for specific purposes, without respect to whether these institutions are part of an educational or scientific institution or of a museum.
• Explicitly allow the reproduction of works on any medium in both digital and analog format.
• Allow the sharing of out-of-print copies among beneficiaries if certain requirements are met (out-of-print clause).
• Explicitly regulate the question of traditional as well as advanced forms of electronic document delivery by privileged institutions such as public libraries in the national copyright act.
• Permit electronic forms of delivery (e.g. in graphic file format) of individual copies of articles in periodicals and parts of published works to patrons for private study and research for non-commercial purposes, regardless whether the relevant material is available via an on-demand service or not.
• Provide for a broad disability exception to both the rights to reproduction and communication to the public that might mention, but is not limited to, certain types of disabilities such as visual or hearing impairment.
• Consider an exception or limitation for people with disabilities without requiring fair compensation.

Political & Cultural Participation

• Provide for a current-event exception and prescribe the conditions under which the freedom of expression right trumps the exlusive author’s rights. Do not restrict the scope of the exception to traditional media, such as newspapers, television or radio.
• The quotation right should allow diverse forms of quotations. It should encompass multimedia quotes as well as texts.
• Allow private persons to disseminate public and political speeches over the internet.
• Explicitly allow creative forms of political and cultural crticism. Use caricature, parody or pastiche as exemplary forms, but do not restrict the exception to these forms.

Download the full report for detailed discussion, references to member state implemenations, and case law examples.