Tuesday, February 17, 2009

INTELLECTUAL PROPERTY, one of the key factors of sustainable growth in the modern world

The subject of this interview is intellectual property as one of the key factors driving sustainable growth in the modern world. It is a challenging issue which is being discussed on all continents.

With the increased globalisation and the exchange of ideas, solutions and approaches, a question is raised ever more pressingly – who, if anyone, can own an idea, solution, business model, invention, melody, or the contents of a book. Are laws in the area of protection of intellectual property rights, specifically copyright and industrial property right laws, hindering or driving development?  

Who owns knowledge? Is it the person who at the appropriate moment has access to financing sources necessary to protect it in time? Is the owner of intellectual property an individual or the environment in which the new value was created or manifested? Should the modern societies revise regulations on intellectual property rights? Should initiatives for creativity and innovation be further formalised and reinforced in scope and duration, should stricter sanctions be implemented for infringement of these rights, or should creativity and innovation be stimulated in another way? 

Some of the answers can be found in the following written record of the discussion with our excellent interviewee, a copyright law expert, the precise, dynamic and insightful Maja Bogataj Jančič, who co-creates and critically reviews global trends. This is her story.

Maja Bogataj Jančič 
(Source: Vibacom)
Maja Bogataj Jančič co-founded the Intellectual Property Institute. She is the author of Avtorsko pravo v digitalni dobi (Copyright Law in the Digital Age), a book published in 2008.
VB: The Intellectual Property Institute’s website contains the quote “Copyright law's perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin”, written in large font. How do you view this dilemma?
MBJ: In my opinion, copyright law is primarily an arrangement intended to stimulate creativity. It provides the authors with incentives to create in the form of exclusive rights –  material and moral. In Slovenia, the predominant view of copyright law which is also implied in the Constitution of the Republic of Slovenia is that copyright is primarily a reward for the authors. 

VB: Why does a society enact copyright?
MBJ: This is based on the assumption that authors create because of the promise of exclusive rights obtained through their work. The author manages his or her exclusive rights – they are a means for acquiring financial resources and for controlling who and under which conditions is allowed to use their work. The society as a whole gains new creations, new knowledge which can be freely utilised after the copyright expires.

VB: However, copyright cannot be permanent, can it?
MBJ: No, these incentives are not permanent. Rights are based on established values or economic realities. These restrictions and rights were initially very limited. They were of short duration (14 years). Copyright expanded through the years, both in scope and in duration. Copyright has quickly adjusted to each new technology and regulates new usages as well. This is why we say that copyright law is permanently at war with technology.
As soon as a work is expressed, the author acquires copyright. However, copyright only protects the expression or manifestation, not the idea itself. Patents also protect the idea.
Protection is increasing – in scope and in duration. It is becoming increasingly evident that increased protection has become an obstacle and is no longer advantageous to certain groups of authors who disapprove of the "all rights reserved" system. They wish to make their creations available under less restrictive conditions. Artists create on the shoulders of the previous generation. They can use works, which are no longer protected, in new creations. This is particularly important in an age when modern technologies enable simplified interlacing, integration and modification of artwork.
Therefore the question of whether these rights are stimulating or suffocating creativity is entirely justified.
VB: What about the duration of copyright?
MBJ: Copyright is valid seventy years after the author’s death. As mentioned earlier, the duration has been extended through the years. Copyright owners endeavoured to prolong the duration to enjoy their right for a longer period of time. 70 years after the author’s death is obviously excessive. The commercialisation period of an original work is certainly significantly shorter. 

VB: How, if at all, did globalisation influence the development of copyright law?
MBJ: The first principal international treaties in the area of intellectual property are older than international peace treaties. The area is tremendously harmonised in spite of the fact that copyright law is still regulated at the national level. 

VB: I sometimes have the impression that the USA are running the policy in the international scene? Is this just an impression?
MBJ: The international treaties in the area of copyright law had been dictated by European continental countries for a long time. However, since products protected by intellectual property legislation have become one of the main export sources of the USA, their influence has increased significantly. Today, their influence in international law is strong and expanded to new technologies, including the Internet. Their industry is dictating the pace and lobbying on all continents, not only with the Congress.

VB: What is the situation in the 21st century?
MBJ: Superpowers, especially the USA, are lobbying across the globe. Developed powers whose production is based on copyright (music, software, the film industry) are forcing their views of copyright law on other, less developed nations. For example, the US industry was unable to achieve certain copyright law solutions by lobbying with the Congress, therefore they brought similar proposals to Geneva where in the 1990’s a new treaty was being adopted within the framework of World Intellectual Property Organization. They were successful – naturally, with the support of other superpowers, the EU and Japan. The USA were then OBLIGATED to implement the international treaty in their legislation. Thus they essentially adopted a solution which they initially rejected – the Digital Millenium Copyrigh Act . The USA is not an exception – based on the international treaty which provided for more balanced solutions, the EU adopted the Directive on copyright and related rights in the information society in which the interests of the owners of rights prevail. The Member States were obligated to implement the Directive. To make the matters even more absurd, countries signing various trade agreements with superpowers are forced to accommodate the terms of protection of intellectual property dictated by these superpowers. This results in underdeveloped countries – e.g. African countries – implementing similar copyright laws as EU Members or the USA. Which is not necessarily the best solution for them. However, these stories are not new. 

VB: Isn’t it true that currently the protection of intellectual property is suited to the wealthy? Patents are expensive and applications must be submitted in each country separately… Less wealthy nations are complaining that the rich world is “stealing” their recipes, owned by them for millennia, and patenting their synthetic variants across the globe. What is your opinion?
MBJ: Superpowers are doubtlessly dictating the pace. It is clear that the system for stimulating creativity and innovation is being skewed into a system where monopoly rights are used to pursue different goals – increase profits, eliminate competition, increase production volumes, etc. The problems lies in the fact that the less wealthy countries have to consent to the rules of the game, otherwise they are denied concessions in other areas. For example – if you do not implement a system of intellectual property and protection thereof, you will not receive agricultural subsidies. These are old stories which are, from a historical point of view, very unjust. The USA were the biggest pirate – copying of English books was initially not prohibited by copyright law. Later, the developed and successful USA used economic leverage to change the world in the area of copyright. 

Violeta Bulc and Maja Bogataj Jančič
(Source: Vibacom)

VB: The business world understands that in most cases business innovations and intangible intellectual property which cannot be patented influence business results most significantly. What is the situation in these cases?
MBJ: You are primarily talking about business models. They present us with a dilemma. Where are the limits of incentives in the form of monopoly rights? Since monopoly rights over intellectual creations are granted with the purpose of stimulating innovation, and thus for the progress of the society as a whole, protection of business models with these rights would not be efficient. In these matters, those permanently improving, innovating and staying ahead of the competition should win.

VB: What was the issue with the incident of the speech made by Janez Janša?
MBJ: This is an interesting question. The Intellectual Property Institute gathers the most important events and infringements of the previous year, both locally and globally. Globally, Google's settlement with the authors and publishers was certainly the must resounding case, while the most resounding locally – at least among those received – was the infringement of the moral copyright committed by Janez Janša. By adapting Tony Blair's speech without permission, Janez Janša violated Blair’s moral copyright which in Slovenia is a punishable act, prosecuted based on a proposal to initiate criminal proceedings. Naturally, such a proposal was not submitted.

Since I am not in favour of treating infringements of material and moral rights as criminal acts – they should stay prohibited, but should be resolved in civil courts and based on the complainant’s initiative – to me, this case is also an indicator of the current situation in our country. In spite of the intensive media attention, nobody characterised Janez Janša’s act as criminal. Journalists in our country often do not investigate the issues sufficiently.

VB: How is copyright responding to the digital age?
MBJ: Digital technologies presented copyright law with a significant challenge – digital technologies provide many new opportunities for creation and distribution, however they also present a threat. You know – mass infringements of the Internet, etc.
Unfortunately, rights’ owners, and based on their lobbying also legislators, mainly only responded to the threats. Novelties include new rights, stricter punishment, new protection for digital rights management (DRM), etc. On the other hand, new models which optimise new technologies are rare – at least among the traditional industries.

VB: Which way forward then?
MBJ: We need to carefully consider whether the arrangement is still serving everyone’s interests. Copyright does not discriminate between individuals and organisations. This rigorousness creates a paradox: technologies provide access to immense knowledge (including treasures kept in libraries, archives and museums); however, it is impossible to enable access to the general public due to the narrow interests of publishers and other rights’ owners. We should definitely start thinking in a new way and redefine copyright law based on new aspects and relationships.

VB: The article “Avtorsko pravo v digitalni obliki” (Copyright Law in the Digital Age) on the Institute’s website contains the quote “Copyright law is a system of legal rules whose primary goal is to stimulate the creation of literary and artistic work”. What about models, schemes, methodologies, newly-coined terms, etc., which also appear in other areas and professions, not only in literary and artistic fields? 
MBJ: The current view of certain industries, such as IT, Hollywood and the music industry, is that the current arrangement is working very well for them. Consequently, when they want to make their works available under different conditions, e.g. free licences: GPL, Creative Commons, they are burdened with excessive transaction costs. Why burden somebody who waives protection and wants to apply a different business model with all the formalities and transaction costs?

The free licences are not used only by nutty scientists, obscure musicians and “software freaks”: on the contrary, these licences are used by numerous artists and particularly institutions and organisations which want to offer copyrighted work under more favourable terms. However, all of them have to use licences or agreements.
The current arrangement is not serving many groups which create and contribute to the advancement of knowledge in the society. 
Violeta Bulc and Maja Bogataj Jančič
(Source: Vibacom)

VB: Are there any existing concrete proposals for the renewal of the system?
MBJ: There are several proposals on how to renew the system. For example, the solution advocated by professor Marco Ricolfi, who led the copyright law group at the High Level Group for Digital Libraries of the EU, is proposing a two-tier copyright system. Whoever wanted to protect their original work with copyright would have to register it, thus obtaining copyright for the period of 14 years. For those waiving protection it would apply that the work was made freely available to the public and the users would only be obligated to attribute it to the author. 

VB: In which aspects did Internet philosophy and technology then challenge the models of copyright law? Which novelties are being introduced due to the Internet? How did the Internet influence non-digital copyright law?
MBJ: The is only one kind of copyright law – it is applicable to both the analogue and the digital forms. Everything that is prohibited in the analogue world is also prohibited on the Internet. This is unaffected even by the fact that digital technologies enable easy reproduction, interlacing, integration and dissemination of contents. This is a fact which is often difficult to grasp for those shaping new business models. It is even more difficult for the users of contents who can easily access everything without charge.

It is obvious that all advantages and disadvantages are not fully understood by the rights owners either. It is easier to complain that nobody is observing your rights and demand stricter sanctions and new laws than to form new business models.

VB: I believe that it is socially irresponsible to support a narrow interest group of copyright owners and thereby neglect potentials provided by new technologies to the society as a whole.
MBJ: Take the example of public libraries, archives and museums. Everything they are keeping can be digitalised. All of it could be made publicly available in a very simple way – however, in order to do that, the issue of copyright must be resolved first. Only works created by authors who died more than 70 years ago can be made freely available. Due to the rigid regulation of copyright, most works created in the 19th century will be digitalised, but will for now only be available within a limited scope in libraries. 

VB: Don’t you think the society is at a great loss because of that?
MBJ: We are seeking new models which would enable quicker access to “national” treasures while at the same time ensuring the authors are not overlooked. Law always hinders technology, seeks compromises between various interest groups and stays a step behind – which is the way it should be. However, these issues must be discussed not only from the aspect of massive infringements over the Internet caused by “kids” who download music, and consequently starve musicians, but we also need to highlight other issues arising from the current arrangement which call for constructive solutions.

VB: Are the challenges regarding new technologies and copyright law merely a consequence of reactionism, or is there more to the matter?
MBJ: It is a matter of being trapped in a deeply-rooted concepts of the interests involved. All rights’ owners, the lobbying industries – they are the “old boys”. Everyone in any way involved in creating new laws is also very “old”. We were not born into the digital world – we migrated into it and learned its characteristics through experience. 
The new “born digital” generations find some of the arguments completely absurd and unnatural. The way they communicate, share and modify content is completely different for them – and copyright law belongs to the age of the dinosaur. They will never internalise laws which prohibit something entirely natural to them. 

Violeta Bulc and Maja Bogataj Jančič 
(Source: Vibacom)

VB: The authors of laws therefore lack real experience and technological knowledge necessary to create new models?
MBJ: It is not really a matter of the authors of laws – it is the interest groups that are lobbying for laws, and the strongest wins. They will have to realise sooner or later that they need to adapt to the new conditions, and specifically to the new technologies. Legislation needs to be adapted to the new realities – and not forcefully implement or retain old and obsolete models by adopting new legislation. 

VB: What is the EU’s attitude towards these challenges? Do the EU’s beliefs differ from e.g. American or Asian ones?
MBJ: No. As already explained, the superpowers are quite consolidated. This is evident from the last example – extending the duration of the rights of performers. First, the USA secured an extension (not surprisingly, just in time to prevent Mickey Mouse from falling within the public domain). Now the EU is following suit by trying to harmonise its system with the US system – so that performers from the EU would not be disadvantaged. The expert public is opposing, trying to prove that an extension would only benefit publishers and elderly musicians; nevertheless, the Commission insists on the proposal which is aimed to defend narrow interests. This is bad – not only because it is an indication of the distribution of power in the business, but also because it highlights the deficiencies and the lack of democracy in the process of adopting EU legislation. Everyone is ignoring the experts.
Furthermore, music publishers are successful in lobbying with the Commission – to the extent that the results of the studies the Commission commissioned with the Institute for Information Law in Amsterdam (IVIR), and which give evidence against the extension, are ignored. 
VB: Concluding thoughts?
MBJ: Due to digital technologies and global communication networks copyright law has been facing a challenge for quite some time. We need to consider whether the current system for stimulating creativity is in need of radical amendments for it is clearly not serving everyone involved in creative processes. We need radical changes – not only of national legislations and Directives in the EU, but also in international treaties. If the current arrangement is working well for certain groups or industries it needs to be retained, at least in the scope in which it is working. However, it is completely socially unacceptable that due to certain narrow interests many other authors who would prefer a different system are being ignored. It would also be unacceptable if we failed to seize the opportunities to preserve and expand knowledge the new technologies are providing to educational institutions and public libraries. The future will certainly bring changes. Law will adapt to the technologies. As usually, the process will be slow, but I hope that the future will bring changes different from those we witnessed in the previous two decades.

Copyright law is another pillar of society which needs to be critically reviewed and updated in light of supporting sustainable development, creativity and progress. Perhaps there is a lesson we could learn from old civilisations. For example, the Inca who reached new truths together. They all participated in creating conditions for common progress. It did not matter who originated an idea or developed an invention for they all came into existence based on the suitable conditions co-created by everyone. The task of the person who had made the step forward was to teach everyone else, to pass the wisdom to others. Which direction will copyright law take in the future? Will it be and obstacle or a driving force of development? For everyone, or only for those who have already acquired the necessary power of capital? The topic is pressing enough to deserve a greater public debate. Let’s start it!

Violeta Bulc