Do market failures hamper the perspectives of broadband?

This report analyses the broadband market and asks whether a specific role of government is necessary. As broadband telecommunication is seen as a source of productivity gains, the European Union and other regions are encouraging the deployment of a secure broadband infrastructure. In the Netherlands, there is some concern whether the supply of broadband capacity will meet the strongly increasing demand. The main conclusions are that presently, given current broadband policy, no considerable market failures exist. Firms have adequate incentives to invest in broadband, partly induced by specific regulation of access to the local copper loop. Hence, there is no need for changes in current broadband policy. Market failures in terms of knowledge spillovers are taken care of by other policies. As the broadband markets are very dynamic, unforeseen developments may emerge such as the appearance of new dominant techniques and market players. The best strategy for the government, in particular the competition authority, is to continuously monitor these markets, making timely intervention easier when needed.

Flexible copyright: the law and economics of introducing an open norm in the Netherlands

This study analyses the law and economics of introducing flexibility in the system of exceptions and limitations in Dutch copyright law. Such flexibility would exist in an open norm, on the basis of which the courts can decide whether certain uses of copyrighted material are permissible or not, instead of explicitly defining this in the law. First, it assesses problem areas where the lack of flexibility creates legal disputes and potential barriers to innovation and commercialisation. Second, it analyses the economic rationale and economic effects of introducing flexibility. The study was commissioned by the Dutch Ministry of Economic Affairs, Agriculture & Innovation. Research methods used are literature review and in-depth interviews. The study includes a case study of Israel, where a fair use exception was introduced in the Copyright Act in 2007. Exceptions and limitations in the current copyright system are meant to balance the protection granted to rights owners with the public interest’s need to make certain unauthorized uses. However, this report identified a number of situations that do not fit well within the current set of exceptions and limitations and attributes this to a lack of flexibility. Among these uses are the activities of search engines, the use of works in User Created Content, cloud computing, data mining, distance learning, and transformative uses by, for instance, documentary filmmakers. Several of these problem areas have given rise to court proceedings with varying outcomes. The interpretation given by courts to existing exceptions and limitations - such as the quotation right, the exception for transient and incidental copying, the private copying exception, and the incidental use exception - is usually too narrow to respond to new technological developments, new developments in the creation process, or new commercialisation models. These types of uses generally do not ‘fit’ the narrowly defined exceptions and limitations and therefore lack legal basis. The same is true for things not yet invented. Because the law is not flexible in itself, courts have increasingly found inventive ways to create legal space for uses that are not covered by the exhaustive list of exceptions. In these cases flexibility with specific evaluation criteria could have been more satisfactory from a legal perspective. Flexibility could be obtained by introducing an open norm in the copyright system. This report defines such an open norm for the purpose of analysing the effects of more flexibility in copyright law. The norm has two main properties. First, it would coexist with the exhaustive list of exceptions and limitations in the current Dutch Copyright Act. Second, a use of a work would only benefit from the open norm if it passes the so-called three-step test, which takes the interests of the author or right holder into account. The first category of economic effects of introducing an open norm is that for some known uses that otherwise require licensing, the open norm would allow unlicensed use. Thispotentially reduces the reward to the creator of a work and therefore decreases the incentive to create. By contrast, it is also likely to reduce the creator’s costs of using another work as an input when producing a new work, and therefore to increase the incentive to create. It is difficult to predict which of these two opposing effects ultimately turns the scale in specific markets. Traditional creators generally worry about the negative effect on their reward and seem to believe that the first effect dominates. For businesses that use large numbers of protected works as an input for their services, such as Google, the opposite is true. They emphasise the benefits of reduced input costs and are likely to improve their legal position with an open norm. Collective rights management organisations in turn fear that their bargaining power vis-à-vis users like UCC-platforms, such as YouTube, would suffer from an open norm. However, given the design of the open norm, it is unlikely that rewards for creators are significantly affected. The application of the open norm by the courts tests for adverse effects on the business model of the rights holder (the previously mentioned three-step test). In case of severe adverse effects on the rights holder, the open norm does not apply. The shift in bargaining power from rights holders to user (platforms) is limited to cases that are currently licensed and where parties are sufficiently confident that the use benefits from the open norm. The second category of economic effects of introducing an open norm is that the legal delineation between infringement and permissible use becomes capable of accommodating developments in technology and society. This enables entrepreneurs to develop new products and services that rely on currently unforeseen use of protected material. On the downside, flexibility may reduce legal certainty in the short run, until jurisprudence on the practice of flexible copyright has developed. The countries that have recently introduced an open norm in their copyright laws have not produced any ex-ante or ex-post studies on the magnitude of these economic effects. The case study of fair use in Israel shows that the change may decrease legal certainty in the short run (as case law needs time to develop), but improve legal certainty in the longer run, as the legal position of acts that do not ‘fit’ a rigid system with an exhaustive list of static exceptions is being clarified. In sum, the main effects of introducing an open norm seem to be of a legal nature: it changes the legal position of some businesses and therefore affects the costs these businesses make to comply with copyright. ‘Tomorrow’s inventions’ are likely to be facilitated by an open norm. Since most businesses seem currently not chilled by the lack of flexibility, the effect on products and services available in the market is likely to be secondary to the legal effects

Study protocol of the TIRED study:A randomised controlled trial comparing either graded exercise therapy for severe fatigue or cognitive behaviour therapy with usual care in patients with incurable cancer

Background: Fatigue is a common and debilitating symptom for patients with incurable cancer receiving systemic treatment with palliative intent. There is evidence that non-pharmacological interventions such as graded exercise therapy (GET) or cognitive behaviour therapy (CBT) reduce cancer-related fatigue in disease-free cancer patients and in patients receiving treatment with curative intent. These interventions may also result in a reduction of fatigue in patients receiving treatment with palliative intent, by improving physical fitness (GET) or changing fatigue-related cognitions and behaviour (CBT). The primary aim of our study is to assess the efficacy of GET or CBT compared to usual care (UC) in reducing fatigue in patients with incurable cancer. Methods: The TIRED study is a multicentre three-armed randomised controlled trial (RCT) for incurable cancer patients receiving systemic treatment with palliative intent. Participants will be randomised to GET, CBT, or UC. In addition to UC, the GET group will participate in a 12-week supervised exercise programme. The CBT group will receive a 12-week CBT intervention in addition to UC. Primary and secondary outcome measures will be assessed at baseline, post-intervention (14 weeks), and at follow-up assessments (18 and 26 weeks post-randomisation). The primary outcome measure is fatigue severity (Checklist Individual Strength subscale fatigue severity). Secondary outcome measures are fatigue (EORTC-QLQ-C30 subscale fatigue), functional impairments (Sickness Impact Profile total score, EORTC-QLQ-C30 subscale emotional functioning, subscale physical functioning) and quality of life (EORTC-QLQ-C30 subscale QoL). Outcomes at 14 weeks (primary endpoint) of either treatment arm will be compared to those of UC participants. In addition, outcomes at 18 and 26 weeks (follow-up assessments) of either treatment arm will be compared to those of UC participants. Discussion: To our knowledge, the TIRED study is the first RCT investigating the efficacy of GET and CBT on reducing fatigue during treatment with palliative intent in incurable cancer patients. The results of this study will provide information about the possibility and efficacy of GET and CBT for severely fatigued incurable cancer patients