Positive Copyright and Open Content Licences: How to Make a Marriage Work by Empowering Authors to Disseminate Their Creations

Positive copyright appears to have been progressively turned away from its normative function of ensuring a fair and efficient transmission of human knowledge. The private sector is seeking to counterbalance this phenomenon by adopting legal tools that expand the public domain of knowledge, such as web-based licences modelled on the "open access" approach. The increasing world-wide preference for Creative Commons licences confirms their aptness to transform copyright law into a tool flexible enough to serve authors' several purposes. Such a spontaneous counterbalance experiences many difficulties though, because of the structure that positive copyright has adopted over the last few years. The current situation is an excellent point from which to look back at how authors used to disseminate their works before the advent of the Internet. From a historical view-point copyright has always accomplished the twin functions of economically rewarding authors and enabling communication of their creations to the public. The latter goal is achieved by means of statutory mechanisms limiting the freedom of contract between authors and their counterparts (intermediaries in a broad sense), in order to enforce the authors' capacity to spread their works. In the current digital environment, however, these mechanisms are not likely to accomplish their original functions. This paper seeks to explore an adjustment that will permit authors to take advantage of all the new means of commercial exploitation and non-commercial dissemination of their works offered by the Internet. Such an adjustment aims also at realigning positive and normative copyright by encompassing the use of open content licensing within the current copyright framework

Flexibility as an Instrument in Digital Rights Management

We consider the optimal design of flexible use in a digital-rights-management policy. The basic model considers a single distributor of digital goods and a continuum of consumers. Each consumer can acquire the digital good either as a licensed product or an unlicensed copy. The availability of (or access to) unlicensed copies is increasing both in the number of licensed copies and in the flexibility accorded to licensed copies. We thus analyze the optimal design of flexibility in the presence of unlicensed distribution channels (the "greynet"). We augment the basic model by introducing a “secure platform” that is required to use the digital good. We compare the optimal design of flexibility in the presence of a platform to the one without a platform. Finally, we analyze the equilibrium provision when platform and content are complimentary goods but are distributed and priced by different sellers.Digital Rights Management, Platform, Flexibility, Piracy

The relationship between copyright and contract law

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory

Safe Harbor for the Innocent Infringer in the Digital Age

The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, cognizable market harm. Safe Harbor was judged one of the best law review articles related to entertainment, publishing and/or the arts published in the 2013-14 academic publishing cycle and selected for inclusion in the 2014 edition of the Entertainment, Publishing and the Arts Handbook, an anthology published annually by Thomson Reuters (West)

Intellectual Property and the Prisoner’s Dilemma: A Game Theory Justification of Copyrights, Patents, and Trade Secrets

In this article, I will offer an argument for the protection of intellectual property based on individual self-interest and prudence. In large part, this argument will parallel considerations that arise in a prisoner’s dilemma game. In brief, allowing content to be unprotected in terms of free access leads to a sub-optimal outcome where creation and innovation are suppressed. Adopting the institutions of copyright, patent, and trade secret is one way to avoid these sub-optimal results

Efficient Contracts for Digital Content

This paper analyses efficient contracts for digital content, focusing on the music industry. It contributes to the quest for an efficient intellectual property rights environment for information goods. Moreover, it adds an interesting application to the field of behavioural economics. The model is set in a contract theory framework with the copyright holder being the principal and a consumer the agent. We offer three contract cases for analysis: strong copy protection, a strategically low price and voluntary reciprocal contributions. Insights from the economics of information and behavioural economics - information goods have public goods properties; social preferences are significant among individuals - are applied to examine the value of a strict copyright enforcement in the digital age. We find that endogenous incomplete contracts based on fair, reciprocal behaviour may achieve a first-best allocation of information goods, while complete contracts are limited to second-best results.internet, music industry, social preferences, reciprocity, moral hazard, file sharing

Music in electronic markets: an empirical study

Music plays an important, and sometimes overlooked part in the transformation of communication and distribution channels. With a global market volume exceeding US$40 billion, music is not only one of the primary entertainment goods in its own right. Since music is easily personalized and transmitted, it also permeates many other services across cultural borders, anticipating social and economic trends. This article presents one of the first detailed empirical studies on the impact of internet technologies on a specific industry. Drawing on more than 100 interviews conducted between 1996 and 2000 with multinational and independent music companies in 10 markets, strategies of the major players, current business models, future scenarios and regulatory responses to the online distribution of music files are identified and evaluated. The data suggest that changes in the music industry will indeed be far-reaching, but disintermediation is not the likely outcome

Digital piracy : theory

This article reviews recent theoretical contributions on digital piracy. It starts by elaborating on the reasons for intellectual property protection, by reporting a few facts about copyright protection, and by examining reasons to become a digital pirate. Next, it provides an exploration of the consequences of digital piracy, using a base model and several extensions (with consumer sampling, network effects, and indirect appropriation). A closer look at market-structure implications of end-user piracy is then taken. After a brief review of commercial piracy, additional legal and private responses to end-user piracy are considered. Finally, a quick look at emerging new business models is taken.information good, piracy, copyright, IP protection, internet, peer-to-peer, software, music