The site suffered a nasty attack last week that took some time to resolve. If you run across any lingering problems, I’d welcome a note.
The site suffered a nasty attack last week that took some time to resolve. If you run across any lingering problems, I’d welcome a note.
Reposting a link to this piece in Ars Technica by Evelin Heidel, Ezequiel Martin Acuña, and me. Here’s how it wraps up:
The combination of wider distribution and lower pricing has also begun to influence practices of financing. “Right now, traders are becoming investors,” Moscoso said. “Large retailers are becoming producers, distributors are making movies, and thus they don’t depend only on the state to produce films. Here, making a movie used to be like climbing the Everest in flip-flops and a T-shirt. You had to be lucky if you wanted to show your movie in the cinema. You had to have contacts or come from a family with a good social position. If you didn’t have any of that, you’d be happy if you managed to get your film shown once at a cultural center. But now you have the option to sell it in markets and shopping centers, where it will continue to sell.” Continue reading
Still more recommendations from the 2013 Global Congress Research Survey, focusing on methodology, communications, and social movement issues. This is Part 5 of 5 (for now1.
If you’d like to submit a couple paragraphs about research priorities, you can do so here. We’d be happy to publish Part 6, 7, etc..
Alek Tarkowski, Centrum Cyfrowe/ Creative Commons Polska / Communia, Poland
Strengthening economic research and tying it to social and cultural studies is an effort that is, in my opinion, crucial – and could for instance be addressed by a workshop-type interdisciplinary conference. Existing economic studies are useful and important (albeit nondecisive about key economic effects of either informal circulations or free / open content1 – but it rarely attempts to become engaged with social and cultural research. Access to data is obviously a challenge – in Poland a treasure-trove of data on informal practices is held by administrators of the “Chomikuj” file locker service – who will never make it available, as from a different perspective this might constitute proof in court…
Finally, as with any internet studies, methodologies still need to be developed, to provide in-depth understandings of use of content. Copyright, just like digital technologies, is a difficult matter, and thus not easily related by respondents in interviews, and even harder to understand through questionnaires.
Our community needs more opportunities to meet, and discuss in particular theoretical matters – it often feels like research is very policy oriented, which has the attached risk of being relatively shallow in terms of theory. Both researchers and activists would benefit not just from strong ties between research and activism or policy work, but also a strong shape of our research community itself.1more–>
In terms of a broader audience and policy debate, we believe that research provides ways to bring IPR issues into a public debate in a manner and scale that cannot be achieved with policy communication alone. We’ve been successfully using in Poland research studies as means of drawing public attention to key policy issues around IPR and public interest. Research also provides strong arguments to policymakers – even if they initially reject the outcomes.
Ramon Lobato and Julian Thomas, Swinburne University, Australia
Methodologically, more comparative studies of IP “on the ground” would be valuable – i.e. studies that consider global regulatory issues in terms of the difference they make to people’s communication practices in everyday life. Methodologically, these studies should be attentive to the already-existing informational needs and practices of citizens in different nations, which vary considerably, and thus derive research questions from pilot studies based on finding out what these are, in contrast to the international studies that weight the “effects” of a singular policy (WTO rules, corporate policy, etc1 across multiple sites. The task would then be to link such studies up with the top-down regulatory studies, providing a kind of meso-level bridge that can connect the two perspectives. Such work could follow in the path of the MPEE report, which provides a powerful template.
Peter DiCola, Northwestern University, USA.
The main need is the same that it has always been: data for empirical research. A few economic researchers — Mike Smith, Rahul Telang, and Brett Danaher — now have access to industry data, through the labels and studios. A few more researchers are working with or at the big tech companies. But the data are privately held. Despite the quality of the work that does exist, there is too little of it.
Institutional support is also needed. It is unclear whether there will be any funding for disinterested research in these areas. The politics of copyright continue to push individuals, firms, and other organizations to the poles of the always-heated debate. There is little space and little money in the middle. Several non-profit groups in the media and copyright space are struggling or have closed.
Evelin Heidel, Fundación Vía Libre, Argentina.
I think that the main issue is not only to do more research but also to communicate better the results of research projects. Most of the results of research projects are not reaching the public policy makers, and in general few of the activists in this area use these results when they engage with policy makers.
Geraldine Juarez, FATlab
I think more research should focus on the relationship between public policy and corporate lobbying. Research should also considered other positions, beyond Creative Commons, that may not be business models but that represent economically viable ways of promoting cultural production, like Basic Income. Research should also focus more in the edges of Internet, were actual exchange and production happens, regardless of policies.
My own goal is to start an on-line magazine called Infrin.gr based on the conclusion that all culture is infringement. A primary goal would be to stop questioning the hopeless possibilities of intellectual property and specifically copyright and just describe the infringing qualities of cultural exchange and production in the 21st century. The audience ideally would be as mainstream as possible and probably will be in English.
Joe Karaganis, The American Assembly, USA
At the last couple Global Congresses, I’ve been struck by the thinness of the connections between work on access to medicines and work on copyright. Concern with ‘intellectual property’ connects them at an obvious level, but doesn’t explain how and why these two loose groups (and not others1 have co-evolved and chosen to convene together over the last 10+ years. There have been efforts to develop intellectual foundations for this ‘field,’ notably Krikorian and Kapczynski (20101, but very little on the political and institutional history of this longer arc of academic and activist work. I think that this lack of histories of the field is beginning to be a loss for the field and–in small ways–a barrier to entry to the kinds of conversations we try to hold at the Global Congress. I think there’s a great, maybe collective, opportunity to write the history of A2K in the past two decades, now that it has one.
I’m also increasingly interested in non- or not-quite IP issues that seem underrated in how we account for incentives to produce. How many movies does a globalized film market need, and what happens to the film industries that aren’t in that top-level finance and exhibition loop? How does the availability of past audio-visual goods compete with the production of new ones? To what extent have some traditionally IP driven fields shifted to more direct rentseeking strategies, such as the explosion of public subsidies for film production?
Blayne Haggart, Brock University, Canada
The effects of social media on social movements remain surprisingly understudied (with some notable exceptions1, particularly within political studies. Because copyright activists have been pioneers in online activism and the use of social media, their experiences have the potential to teach us a great deal about the potential and limits of online activism to influence policy domestically and globally. It’s not news that the rising public interest in copyright has overturned copyright politics-as-usual around the world. However, while there have been some spectacular successes – the anti-SOPA protests, and the anti-ACTA protests in Europe and Mexico, to name only a few – the long-run effect of this public engagement is still unclear. Understanding copyright’s new politics is key to being able to implement successful reforms that encourage both creative production and dissemination.
Is Susan Sell right when she suggests (in her Revenge of the Nerds article, citing Ron Deibert1 that the “transnational activism” of the type seen in the SOPA/ACTA protests “might offer a ‘potential counterhegemonic force’ against vast material resources and state power”? Key to answering this is examining how the copyright-critical movement might transition from blocking bad policies and treaties at the domestic level to doing the same during treaty negotiations, and to influencing the future direction of copyright laws/treaties. Also: Is the global copyright-critical movement reinforcing North-South divisions in areas such as issue framing? We also need to understand how the concept of the “public interest” in copyright has been constructed, and by whom. How is the funding of public-interest groups, particularly from companies like Google, shaping copyright activism? Other questions of interest include whether this is a copyright/IP movement, or an Internet freedom movement. The two aren’t necessarily equivalent, and the answer has implications for the politicization of all forms of IP, as well as the potential for dramatic global IP reform.
Arlene Zank, Way Better Patents, USA
I attended the Global Congress at American University expecting to see a bunch of left wing nut jobs moaning about the unfairness of the patent system instead I found an engaged community calling attention to much of the problems and dysfunction in the system I was familiar with. These people were having the same experience that I was having – everyone was being beat by the patent system that had become a very private club almost inaccessible without spending lots of money. Simple things like letting the visually impaired access digital assets require herculean effort to fix. Artistic works couldn’t be completed because eight notes of a song were needed and couldn’t be licensed.
Another installment from the 2013 Global Congress Research Survey, focused on research priorities around creative industries, incentives, and changing cultural practices.
As always, if you’d like to submit a couple paragraphs about research priorities, you can do so here.
Christopher Sprigman, NYU, USA
We have largely one-size-fits-all IP law that treats a range of very different creative industries similarly. So copyright law imposes basically the same rules on software that it does for motion pictures. And patent law imposes basically the same rules on pharmaceuticals as it does on technologies in smartphones. I would like to see more studies focused on the innovation conditions in particular industries, aimed at understanding what the drivers of innovation are in those industries, and whether innovation in that particular setting thrives with more, less, or no IP protection. Understanding innovation better at the industry level would help us determine whether IP rules should be made more industry-specific, or whether the domain of IP law should be expanded or contracted.
Relatedly, I would like to see more research on the effect of IP rights on both competition and sequential innovation. We have a fair amount of economic theorizing on both, but relatively little empirical evidence regarding how IP shapes competition and sequential innovation in specific markets.
Joel Waldfogel, University of Minnesota, USA
One of my messages of late has been that, as important as piracy is, researchers should move beyond piracy and should instead ask the broader question relevant to whether copyright is working: in light of various different technological changes – some of which reduce revenue and other which reduce costs – what’s happening to the flow of new products. My own work is empirical using large-scale real world (as opposed to experimental1. The main challenge is generally getting access to such data, which exist but are often expensive.
Koleman Strumpf, University of Kansas, USA
In addition to examining the impact of IP on economic returns, it would be very useful to broaden our knowledge of how changes to copyright influence creative output. Topics could include how the quantity and quality of artistic production is shaped by IP, how reuse is impacted by IP, and how firms and individual artists respond to these changes. I think the first target here should be the academic community.
Greg Lastowka, Rutgers University, USA
I would like to see more attention paid to the economics of non-market copyright production and to the costs and benefits of our new information environment. Ideally, this research would be empirically grounded — while theoretical work is valuable, I’m concerned that many copyright critics are missing the opportunity to ground their claims in data. Paul Heald’s recent work on the practical effect of copyright protection is a great example of data-driven research in this area. In my opinion, the contemporary economic calculus of intellectual property is too often exclusively focused on industrial models of commoditized information. This is only part of the story of intellectual property. More attention should be given to empirical research that situates copyright law as cultural policy and considers the value of creativity and information exchange outside of the context of industrial production.
Ana Santos, Duke Law School, USA
There is a lot of assessment and categorization work to be done with regard to IP norms and policies in African countries. While there has been a boom of both scholarly and non-scholarly articles on phenomena like Nollywood, little attention has been paid to other blooming creative industries in Africa and to the role that IP laws, policies, perceptions, misconstructions and fallacies have played in fostering/hindering economic and cultural development in Africa.
Paul Keller, Kennisland/Communia/Creative Commons, Netherlands
From our perspective it would be extremely useful to see research into the attitudes of rights holders who do not commercially or otherwise exploit their works anymore. Given the long duration of copyright and discussions around subjects such as orphan works, mass digitization, extended collective licensing and registration of works it is crucial to gain insight into the motivations of creators/rights-holders that have effectively abandoned their works.
In most policy discussions, this group of rights holders/creators is subsumed within the position of organised rights holders/creators with the latter generally using the need to ‘protect’ unidentified or inactive rights holders as part of their arguments. It is quite credible that rights holders/creators who do not actively exploit their works or are fully inactive have different attitudes (and motivations1 from rights holders/creators who are actively exploiting their works. To my knowledge there is very little work being done on the motivation / attitudes of this specific group.
Mirek Filiciak, University of Social Sciences and Humanities/Centrum Cyfrowe, Poland
The main problem we identify is combining cultural/sociological perspectives with economist perspectives. There is a wide array of problems that need to be described and understood, starting with the sustainability of new business models. Also the need to build a new theoretical framework that would prove that open production models and a belief that “culture is not just a commodity” defend themselves also in economic terms. We’d love to do it by ourselves, but we have had a hard time finding smart economists to work with, and companies which could share their economic / financial data.
Last but not least – there’s a need to establish some global database for the exchange of data by people interested in the topics we’re focused on. It’s probably much more complicated than it sounds, but it eventually would make our research better and more cost-efficient.
Two narrower suggestions: First, a small qualitative study of blind students, looking at their practices related to copying and content use. While conducting the Shadow Libraries survey I’ve met a few visually impaired doctoral students, for whom a big part of educational materials is inaccessible.
The other is an attempt to establish more representative image of informal content-related practices within universities, by conducting a full, representative quantitative survey.
Both of these study would allow us to further develop a view and understanding of informal circulations of content, which are our (Alek Tarkowski and mine1 team’s main area of interest.
Jessica Litman, University of Michigan, USA
Empirical research on how the copyright system does and doesn’t work is sorely needed. We all have intuitions about how copyright law does and does not affect creativity, investment and distribution, but there is almost no research examining whether those intuitions actually reflect the world (and if so, which ones of them1. That makes it very difficult for purveyors of dueling intuitions to even have a conversation.
Kristin Thomson, Future of Music Coalition’s Artist Revenue Streams Project, USA
From the musician revenue perspective, we’re always keen on having Artist Revenue Streams work replicated in other countries. We’ve had conversations with key organizations and individuals in Canada, the UK and some smaller European countries, but we lack the funding to proceed. If anyone wants to work with us to make this happen, we’d love to talk.
Miguel Caetano, Center for the Study and Research of Sociology, ISCTE-IUL, Portugal
I’d like to see more research focused on the material traces of filesharers’ activities on BitTorrent sites and trackers, mainly to assess the level of cultural diversity as well as of dispersion/concentration of attention in the informal circuit when compared to the formal market. For all the talk about the “long tail” of online content both on legitimate as well as illegitimate sites, we should have a better picture of what kind of works generate more traffic—that is, if blockbusters and bestsellers still rule in the informal circuit or if content originated from niche artists and creators get a bigger share of activity. But there is still little data regarding this and adjacent issues.
In addition, I would like to see more “ethnographic” or other qualitative research on the inner life of private sharing communities like BitTorrent trackers (What.cd, Karagarga, Waffles.fm…1 in order to better understand the internal structures that govern these communities and ensure the continuity of a common-pool resource. The self-regulation mechanisms of file sharing communities could be used to inform public policies more in tune to Internet users’ daily practices.
Finally, I’d like to see more quantitative comparative analysis of the content available on legitimate streaming services like Spotify and Netflix and illegitimate file sharing sites and communities across different countries and languages. These could provide evidence that streaming subscriptions are not currently organized in a way that provides acceptable legal alternatives for many Internet users in many countries. Even when the services are available, there are other barriers, such as geographical restrictions on the contents users are allowed to see.
Pablo Arrieta, Red Para Todos, Colombia
I would like to see more work on the general inferiority of the new digital services deployed in peripheral or poor countries and the resulting use of circumvention techniques by consumers. The offerings of local services (like Netflix1 are poor in comparison to other countries (e.g., the Colombian catalogue vs. the USA catalogue1. This leads to geographical circumvention strategies, such as the use of VPNs to change their location in order to have (paid1 access to the content they consider interesting. Such arbitrary geographical licensing practices are common but are largely unexamined. The consumer practices that circumvent them are even more of a black box.
Relatedly, banking requirements remain an important barrier to access to the digital economy in developing countries. In order to buy digital goods in many countries, vendors require credit cards and give no option of “gift cards” or other payment methods. In countries like Colombia (with only a 30% of its population using at least a savings account1 this is a powerful barrier to access. The adoption of cellphones, in constrast, has been rapid in part because of the proliferation of alternative payment models, such as cash cards. How much of the ‘problem’ of piracy is attributable to these barriers to payment? Are there regulatory strategies that would permit governments to punish companies for passive response on “supply” but active engagement on “law enforcement”?
Ramon Lobato and Julian Thomas, Swindburne University, Australia
It would also be helpful to have a deeper understanding of the practices and priorities of government and industry research on media flows, as this sensitive information is not always easy to access. A simple strategy to achieve this would be to stage, then publish, dialogues and interviews between industry practitioners, regulators and scholars. Journal publications are not particularly useful for this task as the publication times are too long, unfortunately. Perhaps there is a need for alternative publication formats to showcase this kind of work.
Alek Tarkowski, Centrum Cyfrowe / Creative Commons Poland / Communia, Poland
At Centrum Cyfrowe, we plan to continue our sociological and anthropological investigations of content use and copying practices, and of the copyright system. For example, in our policy work we look closely at exceptions and limitations to authors’ rights. We would like to supplement this work with dedicated studies of practices in such milieus as schools and libraries—working on a general assumption that a modern copyright should follow contemporary practices.
Studies of the use of open/free content are also needed to prove the value of such resources. Having said that, we believe that ultimately economic arguments are crucial – thus we are striving to work more closely with economists, and on the economic aspects of these processes. This is difficult, due to lack of theories that span these different fields, but even more importantly, to the difficulty of obtaining good data, which is often held by private companies.
Based on the Polish context and ongoing debate, there’s also need for research that demonstrates relevance of copyright beyond the cultural sector, as a lot of the debates seem focused on cultural content and its creators, while ignoring, for example, the influence of copyright on research and science.
With relation to open content and its production models, in the long term we see a need for a theoretical study comparing the underlying ideologies, licensing rules and content production models of different “strands of open” (OA, OER, open data, etc.1.
Finally, I think that it would be interesting to attempt a “holistic” mapping of flows of funds attached to content (and content, measured through content use metrics, for example1 throughout the society, taking for example into account both public domain, orphan and copyrighted works; content not just in the cultural, but also educational and scientific sector; and different financial flows, in particular those based on copyright law requirements.
Rosana Pinheiro Machado, University of Oxford, UK
I wish we could put street markets and the trade of fake goods on the agenda of human rights, taking into account the millions of people involved in this activity in the developing countries. Informal economies and the trade of fake goods are huge sources of employment, but at the same time, a field in which, people are exploited in numerous ways away from formal regulatory forces. Neither a laissez-faire nor strict enforcement approach is possible. In both cases, policies are put in place to satisfy major international institutions.
Balázs Bodó, Institute for Information Law, University of Amsterdam, Netherlands
I have two suggestions. The first one is related to the empirical research on copyright policies. The copyright field lacks any official registry, due to the fact the copyright protection is not tied to formalities. This means that market data is the best proxy we have to the number of works in print, their availability in different forms, the supply of new works, the demand, etc. The effectiveness of copyright policies can be assessed through the observation of cultural markets. The problem is that market data is (a1 very segmented, and (b1 is treated as trade secret by those intermediaries who serve different markets: Google, Amazon, Spotify, Netflix, etc.
The inaccessibility of data on market transactions, on supply and demand; the privatization of knowledge on the cultural flows in the digital domain limits any effort to produce sound research on the economic mechanisms copyright is set to regulate. If copyright related industries have as much weight in the GDP of developed nations as for example agriculture, or energy , we should treat them with equal importance and make sure that the statistics we gather and the data we have on the flows and processes of this sector are as thorough and deep as what we have in those other economic sectors. Better statistical data gathering can and should be amended by an obligation on private cultural intermediaries, such as Amazon, to systematically report on the state of the market they control: supply and demand of works they have in their database, prices, etc. Much of that information is already available through existing APIs or on their public websites, the systematic gathering and archiving of such data is however an insurmountable problem. This can easily be solved by imposing data reporting obligations on those market players who are in the position to oversee a significant share of certain market transactions.
My second suggestion concerns the macro-environment of copyright debates. The recent release of Tor based Piratebrowser signaled that anti-surveillance and anti-copyright digital resistance movements started to merge. Many different groups started to gather behind the shield of dual-use privacy protecting technologies, pirates being one of them. We can expect copyright enforcement arguments to appear in the debate on how to regulate privacy technologies, which forces us, researchers to rethink our questions and arguments in the wider context of digital freedoms and broader digital human rights.
Welcome to part three of our series of comments on ‘research priorities,’ drawn from the 2013 Global Congress Research Survey. This section focuses mostly on patents, health, and trade issues.
As before, if you’d like to submit a couple paragraphs about research priorities for the field, here’s the place to do so. We’ll publish them back out.
Amy Kapczynski, Yale Law School, USA
I think we need more serious conceptualization of the commons and of public alternatives to the market. Studies of actual existing innovation schemes — in the commons, or public — that work and that conceptualize why sharing is important are high priorities, as well as work that explores how to deal w/ the flaws of these modes (insularity, waste, political interference1. Also, there needs to be more work on local IP law, and implementation of international agreements locally. We are better at the international scale because it’s easier to access.
Jorge Contreras, American University, USA
There is a need for good empirical work that quantifies the impact of patenting structures on innovation and welfare across different jurisdictions. Do more or fewer patents fuel innovation? What is the impact of patent litigation on innovators? Are there migrations of talent, capital or funding across borders based on patent issuance or litigation?
Arlene Zank, Way Better Patents, USA
Significant effort needs to be dedicated to patent quality research and the dynamics of the patent marketplace. There are several “urban legend” patent studies that are informing policy discussions – the James Bessen and Michael Meurer work on the impact of non-practicing entities, Colleen Chien on patent litigation, for example. These studies are based on a proprietary dataset developed by a firm that stands to benefit from results of the study. More high-quality scientific examination of these types of findings is needed. Researchers and investigators need to see if they can replicate the results of these studies independently and document the quantitative and economic methods for measuring the impact of NPEs.
An extension of work done on the impact of asymmetric information in patent licensing discussions is needed. Earlier work by Mark Lemly and others that discuss the economic impact of the lack of information transparency on patent licensing discussions warrants significant academic scrutiny. Along the same lines, the impact of private transfer of intellectual property (or more accurately the transfer of IP in private1 should be examined in light of the disclosure requirements for patents.1more–>
At a very basic level, it would be interesting to enlist a pool of grad students to see if they can figure out how to figure out the owner of patents (Real Party in Interest1 and how to contact the appropriate person to enter into licensing discussions. This effort would be focused on determining the extent to which a group of patents enable entrepreneurs, inventors, investors, etc. can find the right people and how long it takes in light of the disclosure requirements conveyed by a patent. We suspect that such an effort would confirm the difficulty in actually finding patents and the failure to meet the disclosure requirements.
Peter Maybarduk, Public Citizen, USA
What are the health budget impacts of biologic medicines—i.e., new treatments derived from living organisms for cancer, heart disease and many other conditions. Most of these are extraordinarily expensive. Some industry groups are pressing hard for the longest and broadest possible monopoly protections for these drugs, including via new rules we expect to see introduced around in the world in the coming few years. Can we measure some of the health budget impacts of these rules, particularly for developing countries?
How much do we know about research and development budgets for pharmaceuticals? What gaps remain in the literature, and are there generalizations we can make? Medicines, Innovation Models
What are the particular patented clean energy or other environmental technologies that could bring benefits if transferred to developing countries through licensing?
Brook Baker, Northeastern Law School, USA
Concerning access to medicines, this is now a world in which patent and potentially data barriers are going to be increasingly pronounced. As a consequence, licensing – voluntary and involuntary – will become increasingly important. In the context of private licensing, we need more researches in patterns of voluntary licensing, both commercial arms-length and quasi-humanitarian (forced in part by activism1. In this regard, we need an appraisal of medicines patent pools and what they have and haven’t accomplished. We need to know more about the terms of such licenses, mechanisms for increasing transparency concerning their terms, and options for regulating such licenses, including their extraterritorial features. In terms of compulsory licensing, we need new research on the production-for-export CL problem, including the best work-arounds for the August 30 System as well as new options, including an Article 30 limited exception. We need research on mechanisms for coordinating the issuance of compulsory licenses in multiple jurisdictions in order to aggregate markets that incentivize generic entry. Finally, with respect to licenses, we need better theoretical and empirical research on the complementarity of voluntary and compulsory licensing approaches.
Access to medicines to medicines for poor populations in middle-income countries is a growing problem. Two strategies need further development. First, we need better analyses of market sector segmentation (public/NGO vs. private1 as a partial solution to access needs. Second, we need better economic modeling of the impacts of tiered royalties on profitability for right holders and access for patients in need. The cost structures and efficiencies of generic producers suggest that there is ample “space” between the alleged no-profit and discount/tiered prices of right holders and the modest profit prices of generic companies. Using realistic models of manufacturing costs over time and differential cost structures, how could tiered royalties become a value proposition for right holders while still securing substantially lower prices for middle-income country patients.
Finally, LMICs are enamored with the prospects of local production of medicines, but there is very little economic or IP related research on the economic viability of local production in regions plastered with patents. In regional contexts where there are expected battles over where “regional” capacity should be located. How do patterns of patenting interact with clear-headed assessments of pharmaceutical capacity and eventual market efficiency and siting decisions?
Koichi Kameda, UAEM-Brazil
I think it is important to conduct research related to the implementation of the recommendations by WHO’s consultative expert working group in 2012 (the already classic CEWG report1. One topic is to understand concretely advantages and challenges for using open knowledge approaches in the research and development of health technologies.
We need research that can draw lessons from negotiations on the ‘Least Developed Countries’ TRIPS extension concluded this year. These could be very useful in forthcoming discussions on the TRIPS pharmaceutical exemption, which due to expire at the end of 2015. The target would be LDC negotiators.
Peter Drahos, Australian National University, Australia
My current work revolves around a project called ‘Global Energy Governance’—a study of G20 countries focusing on the variables that affect the transition from a high carbon to a low carbon economy. It would be very useful to look at how intellectual property rights affect specific energy sectors such as nuclear power.
A topic that is of huge fiscal significance for states but that has received little attention in the literature is the link between transfer pricing and intellectual property rights.
Ante Wessels, FFII (Germany1 and Vrijschrift (The Netherlands1
Investor-state dispute settlement (ISDS1 allows foreign investors (multinationals1 to circumvent domestic courts and bring claims against host governments before an international tribunal. The definitions of investment in investment treaties often include intellectual property rights. This gives investors the possibility to challenge reforms of copyright, patent, database and trade mark law. Investors may demand repeal of the measure concerned or high damages.
Regarding the total cost of ownership of investment treaties, besides the duration of a treaty, the investment agreements’ provisions may continue to be effective for up to 20 years after termination (survival clause1. To understand the risks of ISDS, a best and worst case scenario assessment of the total costs of ISDS for the full duration of the obligations is needed with regards to threats to use ISDS (as they have a chilling effect1, number of cases (rising sharply1, claims, damages, legal costs and lost opportunities, including lost opportunities to solve crucial problems such as climate change and the euro crisis.
ISDS involves a transfer of sovereignty, it gives investors equal standing to states, and arbitrators the power to decide in conflicts between investors and states. ISDS takes away “sovereign immunity”: states can be sued only under limited circumstances – ISDS leaves states limited defense. As it is a critical step to transfer sovereignty (especially for a long period in a fast changing world1, proponents have to provide sufficient evidence regarding necessity (as insurance and state-state dispute settlement are alternative ways to protect investments1, safeguards (the present system is riddled with conflicts of interest1 and total costs of ISDS. An inventory of missing evidence would provide oversight.
EU member states signed many bilateral investment treaties containing ISDS clauses. The 2009 Lisbon Treaty gave the EU competence to conclude such treaties, in time, nationally concluded investment treaties will be phased out. The EU competence is not fully exclusive, there is partly a mixed competence with the EU member states (mixed agreement1. The EU treaties do not contain provisions on how to withdraw from international agreements. Will an EU member state be allowed to withdraw from a mixed (competence1 investment treaty? Will EU withdrawal from investment treaties involve qualified majority voting in the Council? The complexity of the EU decision making process may make withdrawal from investment treaties difficult, close to a locked-in situation. An element to consider is that the EU single market is much bigger, with higher expected profits, than the individual member states’ markets. The EU may be a more attractive subject to challenge than individual EU member states. For civil societies to
participate meaningfully in the decision making process a good understanding of the processes and the scope of the EU competence is needed. This may include an assessment of the compatibility of proposed investment treaties with human rights (including social, economic and cultural rights1 and the EU treaties. Much attention goes to the EU – US trade agreement (TTIP / TAFTA1, but other trade agreements, like with Canada and Singapore, will probably go into a ratification process earlier, setting a precedent.
Glyn Moody, journalist, UK
Investor-state dispute resolution is the greatest threat to, well, everything. It allows multinational companies to override local laws, include those on health, safety, labour and intellectual monopolies. And yet few know about it. So a key aim would be to make the public and politicians aware of its huge threat.
Maira Sutton, Electronic Frontier Foundation, USA
We need a better picture of how lobbying from the copyright and patent industries are influencing innovation policy around the world, through various trade fora, WIPO, and any other means.
What kind of evidence, from papers or reports, are being used to justify such policies? There are several papers that are floating around that have been funded by the IP industries, that are used to support restrictive copyright and patent rules. The objectivity of such reports are highly questionable and thus should be exposed. This could lead to some baseline transparency standards over IP policy research.
What is the impact of the revolving doors between the IP industries and national/international rulemaking bodies? The lack of accountability over policy is no where more apparent than in the way public officials take high-paying jobs in the industries that they were previously authorized to regulate. There are several (possibly dozens more1 examples of this in the IP space.
This is the second set of comments reported out from the research survey. Here the comments focus primarily on research priorities around copyright reform, users’ rights, and enforcement.
Part 1 provides an explanation of the survey and selection principles, plus some overview comments.
Part 3 looks at patents, health, and trade (coming1.
Part 4 explores creative economies and practices (coming1.
Part 5 looks at issues of capacity, communication, and history in the field (coming1.
As before, if you want to submit a couple paragraphs about research priorities for the field, here’s the place to do so. We’ll publish them back out.
Pedro Paranagua, FGV, Brazil; Duke Law; House of Representatives, Brazil
Reframing exceptions and limitations to copyright as users’ rights should be the top target globally. The Marrakesh VIP Treaty is a good starting point. Among other issues, I’d also highlight net neutrality and Internet governance, for we are about to lose the Internet to the telcos, which would represent the end of the Arab Spring, and of a much freer society globally.
Network collaboration is essential. The greater collaboration between academics, NGOs and government officials since the passage of TRIPs has substantially increased the capacity of all players to learn and influence policy, both nationally and globally. I strongly suggest that these networks continue to be strengthened via regional and global conferences, and also via collaborative research projects, aimed at influencing public policy nationally and globally.
Carolina Botero, Karisma Foundation, Colombia
The Colombian debate on freedom of expression on the Internet is in its infancy, characterized by a mid-stream shift from traditional to digital and internet media, and a range of restrictive Internet proposals driven by the new Free Trade Agreement with the US—especially but not limited to the blocking and removal of content. We want to find means to support regional community media to advocate for their right to freedom of expression in view of these regulatory risks.
Given Colombia’s history with drugs and “terrorism” and the fact that it is surrounded by the “socialism of the XXI century”, there are multiple stakeholders pushing to expand the digital security state, including expanded surveillance measures across all areas of Colombian society. There is an urgent need to build capacity within civil society to monitor and intervene in these developments.1more–>
Lawrence Liang, Alternative Law Forum, India
The next big issue at WIPO is going to be exceptions and limitations for education. This is a critical area given the possibilities opened out by distance education, and I am hoping to focus on it for the next few years. I’ll also be trying to contribute to and organize work on several other issues, including the decriminalization of individual use and the scope of exceptions and limitations for cinematograph films. Monitoring the changes surrounding the Copyright Amendment of 2012 in India will also be a priority.
We are in the midst of what can be seen as a range of progressive policy changes around these issues and we would like to track them in terms of impact, dilution and challenges.
Peter Suber, Harvard University, USA
I’ve given a lot of thought to research priorities for Open Access over the years. In May 2008, I wrote an article, “What we don’t know about open access: research questions in need of researchers.” After I published it, I moved the list of questions to a page in the Open Access Directory (a wiki1, where I and the OA community at large have continued to refine and expand it. The best way I can answer your question is to point you to the OAD list of questions. Here’s a sample: “What is the current rate of self-archiving in different fields and countries? Can we graph the change in these rates over time? Can we disentangle spontaneous self-archiving from self-archiving encouraged or required by funders and universities? Can we calculate both the percentage of self-archiving authors and the percentage of self-archived papers? How accurately can we rank the disciplines by their levels of OA archiving? Even if the widely-held assumption is correct that physics is first, what’s the rest of the picture?”
Kimberlee Weatherall, University of Sydney, Australia
There are two broad beliefs motivating my research projects/focus at the moment:
(11 While there is a lot of discussion around the drafting of IP provisions in international treaties, and much advocacy, less attention is paid, in general, to domestic context and implementation. So one of my ambitions is to do the work that gives meaning and content to enforcement provisions in IP treaties: looking at the case law, looking at the domestic law changes that are brought in, looking at the background principles (e.g. in civil and criminal procedure1 against which such provisions will be interpreted/applied ‘on the ground’. I can do this in Australia, or for the UK – it would be great if other people were interested in doing similar work in other countries that are less accessible. One possibility would be co-authored work in this space: picking a few issues (e.g., seizure of infringing implements; assessment of injunctions; assessment of damages; border provisions1 and looking at how they are managed across a range of countries. But it requires working at the intersection of IP and civil procedure and so is not at all straightforward. If there were other people interested in other (non-English speaking1 jurisdictions, it’s something that could be done – small scale (ie a small group of individuals1 with a 2-3 year timeframe.
(21 Empirical and interdisciplinary projects that look at what happens on the ground: how people use technology; how they access content (or don’t access content1; what the barriers are for disabled or remote communities. Such analysis is incredibly important as it gives context to IP provisions and can provide the evidence base for legal reform. This would have to be more large scale – I’m imagining projects of the kind of scale of the Media Piracy project work on markets for infringing materials, targeted at that issue but also possibly others. One possibility might be a project looking at access to material for the disabled and tracking how/whether Marrakesh is effective, but also just looking at the ground at what some of the real barriers to access are. Another project along those lines that might be useful would be one that built the evidence base for other international treaties on exceptions – e.g. for libraries or education. But I’m less familiar with what’s already been done in that space.
Niva Elkin-Koren, University of Haifa, Israel
I think we should focus our attention on access and use of information as civil liberties. In this context, there are at least three major shifts that I believe we should worry about:
One is the rise of an infrastructure of control: we see more filtering, blocking and monitoring for the purpose of copyright enforcement (e.g., Content ID, DPI1. These practices should be subject to legal scrutiny and secure due process.
Another issue is the weakening power of users at the network ends. This is linked to the rise of online mega platforms, cloud computing, the shift in content distribution from products to services and the dominance of private ordering. Overall, these developments keep the ends with less control over the type of information that could be shared and accessed, and especially over the terms for doing so.
Finally, we should be worry about the collaboration between governments and online intermediaries in law enforcement tasks, without sufficient legal oversight (what my co-author Michael Birnhack and I named a decade ago the Invisible Handshake1. This government-market cooperation is becoming an important tool of governance and it is most likely here to stay.
Overall, those shifts put us at a turning point: this is not simply about access to information, it’s actually about freedom, and we currently lack the legal safeguards for securing it.
Natasha Tusikov, PhD Candidate, Australian National University
Despite the wealth of research on the role of intermediaries in the enforcement of IP infringement, there is need for greater analysis of the private-sector enforcement of infringement on the Internet, both for copyright and trademark infringement. The role of security firms that specialize in the online monitoring and policing of IP infringement requires greater scrutiny. Another topic of particular interest is the use of voluntary regulatory agreements among Internet firms (e.g., Google, PayPal, eBay, GoDaddy and Taobao1, rights holders and industry groups in the United States and United Kingdom. These agreements involve Internet firms voluntarily withdrawing their services (e.g., payment processing1 from targeted websites on behalf of rights holders. A related area of research is the extent to which Internet firms (e.g., Google and PayPal1 have the capacity and autonomy to shape, set and enforce global norms in relation to intellectual property. Internet firms have varying degrees of discretion to determine what actions or behaviours to police and how, and what sanctions (e.g., banning repeat offenders1 to impose.
Sherwin Siy, Public Knowledge, USA.
I’m particularly interested in the costs created by assuming the validity of terms of service and end-user license agreements. There has been some good research on the costs of privacy policies (Aleecia MacDonald’s, for instance1. I would love to see more on other types of contracts of adhesion. Given that the concessions demanded in these agreements are frequently quite significant, it would be interesting to parse the costs of reading them, given the manner (language and timing and format1 in which they’re represented.
I would also like to see more work on civil forfeiture as it’s applied in and out of the tech and IP sectors. Prior to concerns about server and domain name seizures, most of the coverage had been in the context of drug laws. There may be fruitful parallels to be investigated there.
Finally, and more speculatively, I’m interested in the growing use of IP licensing as a mechanism for tax avoidance by IP-intensive companies (via such strategies as the ‘Double Irish’1. Although this is often approached primarily as a tax issue, there might be an interesting IP research governments, in theory, at least, get to determine the contours of IP and its alienability and licensability in the first place.
Pam Samuelson, UC-Berkeley, USA
Our focus will continue to be copyright reform efforts in the US and elsewhere, with particular attention (though the Berkeley Digital Library Project1 to empirical and legal research to inform policy recommendations for revising library privileges. More generally, we need more: (11 Empirical work on the extent of the orphan works problem and the costs and benefits of different solutions; (21 Empirical work on the costs and benefits of copyright secondary liability rules; (31 Empirical work on the copyright alert system in the US and 3 strikes programs elsewhere; (41 Analysis of the costs of the US enforcement agenda and whether it is being effective or overly so. We will be holding a major conference on “The Next Great Copyright Act?” in April 2014 to explore many of these issues.
Gabriel Rossman, UCLA, USA
I’d like to see work on the magnitude of deadweight loss of transaction costs for title search (e.g., orphan works in copyright and indexability problem in software patents1 with eye towards realistic policy proposals to compensate legitimate rightsholders (e.g., orphan works legislation that amounts to opt-out compulsory licensing held in escrow1. I’d also like to see work approaching Tabarrok’s model of variable length patents.
Corynne McSherry, Electronic Frontier Foundation, USA
The copyright reform process needs better answers to many questions. How does copyright foster and/or impede economic growth, differentiating by industry to the extent possible? How does fair use/fair dealing foster and/or impede economic growth, differentiating by industry? How does fair use compare to “limitations and exceptions such as fair dealing” in terms of how effectively they foster secondary innovation and expression (e.g., fair use is broad and flexible but can be vague; fair dealing and other exceptions are more specific but perhaps ultimately more narrow1.
Between July and September, 2013, The American Assembly surveyed members of the ‘Global Congress on IP and the Public Interest’ community to learn more about their research and priorities. We invited responses from anyone who had either been to a Global Congress, been invited, or expressed interest in coming to one–a total of around 600 people. We received around 90 responses.
While the responses aren’t a representative sample of the community’s views on these issues, they make for interesting reading and are well worth a look for those interested in the intersection of research and IP policymaking. Broadly speaking, they describe a community focused on understanding how innovation systems for science and culture work, from rights and incentives to enforcement and changing cultural practices.
Rather than attempt a synthesis of the responses, we’ve decided to present this material in two ways.
First, we’re publishing edited and–in some cases–revised responses that offered relatively detailed accounts of the field or specific recommendations for future research. The first of 4-5 installments is below.
Second, we’ve built a database with the information that respondents shared about their current projects and research plans, sortable by topic and geographical focus.
The goal isn’t full representation of the community (however one might define it1 or an authoritative list of its priorities, but simply sharing back as many of the detailed suggestions and insights as we can.
If this process is useful to people, we can think about doing it again (and making it better and more inclusive1 ahead of the next Global Congress. If you didn’t participate but want to share a few paragraphs about research needs, here’s the place to do so. If we receive a bunch of new ones, we’ll publish them.
Thanks again to those who participated.1more–>
Nagla Rizk, American University, Egypt
It is important to develop better indicators for knowledge and innovation generated in developing countries, which often escape conventional measurements (such as the World Bank Knowledge Assessment Matrix , which, for example, cites the number of patents as an indicator of innovation. Clearly this does not apply to developing countries where a good part of innovation is informal1. Results of this work would redefine the global knowledge assessment metrics and maps. Such metric(s1 would capture the value emanating from informal innovation and knowledge sharing in developing countries. Jeremy deBeer has done work on informal innovation, and I am thinking perhaps (only perhaps1 the work of Eric Von Hippel on user generated innovation may be of interest. In any case, this work would require a first phase of theoretical conceptualization of the index, and a second one involving extensive fieldwork on the ground to apply the index.
Sean Flynn, American University, USA
One key question is: How do countries break out of the upwards IP ‘ratchet’—the tendency of IP policy to advance via new, higher floors? Two types of research seem useful: case studies of the renegotiation of IP obligations downwards, and precedents or clear pathways for the withdrawal from trade or investment agreements that contain onerous IP obligations.
Ahmed Abdel-Latif, ICTSD, Switzerland
A growing number of developing countries are elaborating IP policies and innovation strategies. Yet there is overall little comparative analysis concerning the key features and implications of these policies and strategies and, in particular, the extent to which they are consistent with the broader development objectives of these countries in the areas of public health, education and the environment.
Many developing countries are engaged in policies concerning the commercialization of publicly funded research following the Bayh-Dole model in the US. A number of countries have or are in the process of enacting legislation for this purpose (Brazil, South Africa, India1. However, there has been little comparative research about how this framework is being implemented and what lessons could be drawn so as to ensure that the development needs and specific socio-economic circumstances of these countries are taken in to consideration in these policies.
Andrew Rens, Duke University, USA
Looking ahead at research needs, I continue to see a lot of value in large, collaborative, comparative projects. I outline three promising possibilities.
1. Realizing human rights to health, education and speech
A large-scale, long-term project is necessary to address opportunities to develop access to knowledge and access to medicines as human rights through litigation. Developing analyses of the intersection of human rights and intellectual property through the lens of human rights litigation will ensure that the analyses remain grounded and pragmatic and immediately useful outside the academy.
A first stage would consist of a series of research studies looking at past litigation successes, such as those of Treatment Action Campaign in South Africa, and also identifying potential litigation targets around the world where fundamental rights arguments could be brought to bear. The project would then refine the kinds of arguments, tactics and evidence needed for the litigation targets. The initial focus could be on recording what worked in the HIV/public health movements before a generation of activists who fought those battles move out of the field. Another early focus would be how civil society actors reduce the expense of litigation.
A second stage would lay the theoretical ground work necessary for civil society to begin work on the targets in much the same way as the many articles on the right to health in South Africa laid the groundwork for the subsequent constitutional litigation. A third stage would involve teaching and training as much as research, to enable civil society organizations and their lawyers to engage in impact litigation. This would require a large network of scholars and activists in developing countries, the creation of a journal or other outlet for research studies, and training for human rights lawyers.
2. Trade Treaties and Democratic Theory
It is important to explore the ways in which trade treaties have become mechanisms to sidestep democratic processes. Although the opacity of trade treaties has been criticized by the Access to Knowledge movement, the circumvention of democratic has not received much attention from disciplines concerned with democracy, especially the theorization of democracy. Political science, political philosophy and constitutional scholarship haven’t yet analyzed the anti-democratic turn in international trade regulation.
3. Interconnections of access to knowledge and access to medicines
A project that explores the interconnectedness of access to medicines and access to knowledge would address the problem from a multi-disciplinary perspective including economics, other social sciences, technology policy, philosophy as well as law. The hoped-for outcome would be the creation of a common analytical framework or at least language for access to medicines and access to knowledge researchers.
Andrew Bridges, Fenwick & West LLP, USA
I believe that there needs to be comprehensive mapping of all the forums that shape policies to govern the activities of technology and Internet intermediary companies. This includes intergovernmental organizations and events like WTO, WIPO, OECD, and IGF; other groups such as ICC and BIAC; national governmental agencies such as USPTO, CR Office, USTR; trade associations such as IIPA, IIPI, INTA, IACC; and legal groups such as ABA, AIPLA, IPO.
Susan Sell, George Washington University, USA
I would like to see more country-level research on how various countries seek to integrate intellectual property policies into broader national goals. (For example, China’s “indigenous innovation” program is an interesting effort1.
I also would like to see scholars making more connections between the economics of innovation, intellectual property law, and the various roles of multiple institutions in intellectual property policymaking. For instance, the Federal Trade Commission in the US has been alert and active in punishing competition-killing deals between brand-name and generic pharmaceutical firms, while the Justice Department has been lax.
Mohammed El Said, U Central Lancastershire, UK
The Arab region remains absent from the majority of research conducted in the area of IP, public health and access to medicines. more empirical research is needed regarding the impact of FTAs on the region, including data exclusivity, patent extension terms, lack of generic competition …etc.
Nick Ashton-Hart, CCIA, Switzerland
I would say generally that international IP will not move much now given patent reform in the US (again, maybe real this time…1, the beginnings of a copyright review there, and in the EU, definitely a copyright review. These two countries/blocks won’t want to see any substantive changes while they are deciding what they want to do.
The result I think is that research needs to open better windows on what works and what doesn’t work about these systems. For example, there isn’t nearly enough research on the transaction costs of licensing of copyright as an activity in its own right—despite how inefficient all the manual, company by company, country-by-country licensing of creative works is. Where there is a solution that may help – such as extended collective licensing in Scandinavia, there’s really little research on how and why it works.
There’s also not enough research exploring what happens to money paid by licensees. Academic research should test the conventional wisdom about how little of the pie makes it to creators, from what, and why. For example, digital money is almost all getting kept by middlemen and not going to creators thanks to the structure of contractual relations from the bricks and mortar days, yet this is getting little or no attention from researchers.
Finally, there is also very little research on how large or small a portion of the money that should go to developing country rights holders actually makes it there, despite a long history where artists from small countries actually permanently leave their homeland simply because if they don’t they’ll never make a living. Copyright has been broken in fundamental ways even in its primary market-serving guises. Unfortunately this hasn’t gotten much attention; there’s been a great deal of attention on fair use, libraries, etc. but the best way to make clear that copyright doesn’t work is to document how badly it works at dealing with everyday, mainstream uses, uses that every consumer is aware of and has participated in.
Cross posted on China Law Blog.
Part 1: The Ancient History of the DVD is here.
Part 2: Who Wants What is here.
I won’t pretend any expertise on Hollywood-China film politics, but it does sound like it would make for a fantastic dark comedy. The story would certainly include the profit-sharing agreements whereby Chinese firms are the overwhelming beneficiaries of Hollywood’s growing popularity. It would include the endless, conflicted efforts of government distributors and censors to damage the Hollywood golden goose in the name of Chinese culture, by suddenly yanking Hollywood hits out of theaters, releasing them on the same day, or bowdlerizing them into (even more) incoherent messes. It would include the endless variety of Hollywood efforts to appease these capricious gods, whether by throwing Chinese actors into weird extra scenes for Chinese releases, stripping films of Chinese bad guys, launching joint ventures with Chinese princelings, or—allegedly—paying bribes for valuable exhibition slots, which the SEC is now investigating. Although some Chinese players probably benefit by keeping Hollywood guessing, one should assume that such privileges will eventually find their price. Continue reading
Again, this is jointly posted with China Law Blog.
Part 1: ‘The Ancient History of the DVD’ is here.
Part 3: ‘Forget it, Jack, it’s Chinatown’ is here.
Although we initially approached piracy an intellectual property issue, we ended up spending a lot of time on the determinants of price and availability in legal markets, and so on questions of media ownership and market structure. And when we looked at these, it was clear that the structural issue that mattered most was the extent to which legal and cultural barriers sheltered domestic studios and distributors from Hollywood. Outside India and China, there were very few successful domestic film industries. Once vibrant examples—in Europe of course, but also Mexico, Russia, and Japan—had become marginal in their home markets and inconsequential abroad. There are many reasons for this decline. Hollywood’s mastery of widely-accessible spectacle is a big part of it, of course. But so too is the advantage of operating from a rich home market, with stronger investment infrastructure and the ability to amortize production costs. So too is its much more effective control of the rest of the system, from saturation advertising, to the control or manipulation of distribution networks, to the capture of legislation, trade negotiations and state subsidy programs, to an ability to capitalize on the economic volatility of developing-world economies, which has periodically decimated local film industries. The Hollywood studios do all of this better than anyone else. Whether Transformers 4 is any good or not is very unlikely to matter. Continue reading
Dan Harris at China Law Blog invited me to write a post about the launch of the Chinese translation of Media Piracy in Emerging Economies. There is no China chapter in the report, but of course there are numerous China connections and parallels. Here’s an attempt to explore those connections, in three parts. Part 1 sets up the pricing argument that will be familiar to MPEE aficionados.
Part 2: What Everyone Wants, gets into film exhibition and market protection.
Part 3: Forget it, Jack, it’s Chinatown, discusses the politics and future of Hollywood in China.
Our headline finding is pretty simple: developing-world piracy is driven by high media prices, low incomes, and cheap digital technologies—and has not been significantly impacted by scaled-up enforcement. This is the sort of statement that’s obvious in most developing countries but that is still off limits in most international IP policy conversations, which are driven by the big copyright trade associations—the MPAA, BSA, IFPI, and so on. As a result, we have a policy debate focused single-mindedly on strengthening enforcement. But in our view, if you’re really concerned about piracy, you need to ask which of those other things will change: prices, incomes, or cheap tech? “Income” is a fine long-term answer in some countries but the realistic short-term answer—the one that rights holders can actually do something about—is “prices.” Let’s take the example of DVD piracy. Continue reading