Blakeney, M.

Heald, Paul

Marshall, L.

Tang, P.

Taylor, M.

Thumm, N.

English

Bournemouth University Research Online

Proceedings Symposium “A New Feudalism of Ideas?”Centre for Intellectual Property Policy & ManagementBournemouth University, 26 June 2001Note: These proceedings are edited transcriptions of contributions based on notes taken by Julia Fallon andGurminder Panesar (MA/LLM Intellectual Property Management). A special issue on the topic of thesymposium is in preperation (eds. Martin Kretschmer & Peter Drahos).OPEN SESSION:Lee Marshall, Department of Sociology, University College WorcesterA Taxonomy of PiracyThe ownership of rights is now more important to the major players in the music industrythan the production of actual music. However, the word ‘piracy’ is a label given to a verydisparate and diverse number of practices. Large scale commercial piracy in themanufacturing and distribution of counterfeit products differs significantly from the currentmoral panic concerning Napster and MP3, or the earlier panic about home taping. There areseveral distinct forms of piracy, each with its own history and economic and socialrationales while at the same time sharing certain characteristics, notably the infringement ofcopyright in sound recordings. In this contribution, I shall offer a taxonomy of ‘pirate’activities in the music industry, based on an analysis of contemporary documents andinterviews with the legitimate music industry, pirates and listeners.(1) Pirates and CounterfeitersCounterfeit recordings, i.e. copied products that pretend to be or resemble the originalrelease, are the most widespread form of piracy, but take on different characteristics indifferent parts of the world. This section looks at the effects of piracy in the developedworld, in Eastern Europe and in Asia. It will investigate record industry claims thatcounterfeiting is orchestrated by organised crime gangs and discuss the Mafia’s role inpiracy. The chapter also looks at the new development of CDR piracy, which the industrycurrently sees as its biggest problem in this field.(2) BootleggersBootlegging, i.e. the unauthorised recording of live performances, is the smallest form ofpiracy but arguably the most interesting. This section will give a broad overview of thebootlegging phenomenon and discuss the production and consumption of bootlegs. Inparticular, it highlights the extreme efforts of the recording industry to prevent bootlegsdespite their negligible impact on the economics of the industry.(3) Home tapers and tape tradersHome taping became the major issue for the industry during the 1980s when tape to taperecorders became widespread. This section provides detail on the most significant legal casefor home taping, which was ironically not brought by the recording industry against tapemanufacturers, but by the film industry against video recorder manufacturer Sony. This caseenshrined the right (in the US) to ‘timeshift’ recordings for personal use. Such a concept isbeing eroded because of the developments on the internet, and they will be discussed furtherin the following chapter. This chapter shall examine public attitudes to home taping, therecord industry’s attempts to gain a levy on recording equipment/media, the furore overDigital Audio Tape (DAT) and now CDR.(4) DownloadersThe future of music copyright in the face of new technological possibilities on the internet iscurrently the most salient issue in this area. This section will offer a detailed analysis ofMP3 and Napster et al. It will contextualise the current debates by discussing historicalexamples of when new technology has threatened copyright principles (such as the inventionof radio) and discuss the legislation that has been introduced by the US and EU to combatonline piracy.Finally, it is argued that despite the obvious differences in the types of problem posed by thedifferent types of piracy, the music industry’s response has been remarkably similar in allcases. In particular, the industry has centred its arguments not on economics but onaesthetics, claiming that piracy is bad for art and artists. Yet despite these campaigns, formsof piracy remain high. This section offers details of some of the less successful campaigns,and asks why they failed. There is an ideological understanding of music, and rock music inparticular, that separates it from commercial interests and celebrates illegality. The musicindustry cannot successfully assert its property rights through technological or legalmeasures, but only by convincing individuals that copying infringing files is wrong. In thecontext of the digital environment, this dialectic will evolve neither into revolution norfeudalism but into a kind of musical guerrilla warfare involving publicity stunts and hit-and-run legal cases.E-mail: L.Marshall@WORC.AC.UKMillie Taylor, Performing Arts, King Alfred’s WinchesterPerforming Arts – copyright authorship and commercial exploitation of IP inuniversitiesM.Taylor initiated a discussion concerning the management of IP in academic institutions,using the example of devised theatre.IP is not really used in performing arts and devised theatre (where a group of people createan event, often containing inmprovised elements). There is no system of recordingauthorship of performances, nor is there a system for exploiting the performances for theperformers. Universities now apply pressure to clarify the ownership situation.Apart from authorship of the performance itself, authorship of videos and audio recordingsof performances (creative contribution of camera, sound design etc) is subject to muchdiscussion within the performing arts world at the moment.Paul Heald - The problems could be solved by consensus by contract.MT – Most performing artists do not sign or use contracts.This ties in with Lee Marshall’s point that formalising a performance for commercialexploitation creates an ideological tension, and Friedemann Kawohl’s claim that the abstractwork character imposed by copyright law is at variance with contemporary culturalpractices.There was widespread scepticism about the suitability and viability of commercialexploitation of IP in the context of a university environment. Bill Maughan’s points aboutthe funding of public goods were raised.E-mail: M.Taylor@wkac.ac.uk________Paul Heald, Allen Post Professor of Law, University of Georgia, USAPublic Interest Issues in IP LawP.Heald is involved in promoting public interest based opposition to the tidal wave of IPculture, which is threatening to engulf the USA. Congress, for example, did not consider theimpact of copyright term extension on the users – only on the owners.Most IP academics support attempts to actively reshape the law in accordance with publicinterest considerations. The problem is that public interest arguments cannot be easilyorganised into a lobby group, defending significant economic interests. Database legislation,however, was significantly improved through critical academic intervention.PH highlights the rise of ‘IP clinics’ which take up concerns raised by users of IP. PH isactively involved in such initiatives.It is felt that as the economic force behind the expansion of IP rights continues, oppositionwill continue to intensify. PH argues that IP revolution is the most likely of the threealternatives posed in the symposium, and at the very least, lobbying, if sufficiently intense,will result in IP retreat.E-mail: heald@arches.uga.edu________Nikolaus ThummEuropean Commission, Institute for Prospective Technological Studies, SevillaStrategic Objectives of PatentingN.Thumm argues that strategic uses of patenting are becoming increasingly important.“Patenting is a tool to make money” and firms are spending increasing amounts on portfolioanalysis. Patenting can be a lifeline for a company; not only can it be used to keepcompetitors at a safe distance, it can also provide a firm with a competitive advantage thatcan lead to expansion and increased profits.There are two basic types of patenting strategy that can be adopted: defensive or offensive.As a result of strategic patent portfolio development, we may end up with “portfolio wars”.It is extremely difficult to accurately document patent strategies empirically due to thereluctance of patent managers to disclose such sensitive information to researchers. But “ifthere is smoke, there is bound to be fire”.Strategic use of patents could result in cross-licensing, patenting pools, mergers andacquisitions, and even attempts to pay competitors to leave the field.  This behaviour couldbe seen as anti-competitive. Policy makers need to ensure that competition law plays a fullpart in shaping the patent system of the future.  The patent system evolved in order topromote innovation and development through disclosure and shared information. Without alevel playing field, the patent system will be undermined by those who benefit from it themost.  As a logical consequence, the increasing role of competition law could possibly leadto an IP retreat.E-mail: Nikolaus.Thumm@jrc.es________Puay Tang, Science and Technology Policy Research Unit (SPRU), University of SussexBusiness Method Software PatentsP.Tang reported findings from a survey carried out with small and medium sized softwarebusinesses (study commissioned by European Commission, Directorate-General Enterprise;co-authors John Adams and Daniel Paré).The research found that these companies used confidentiality and copyright as protectionfrom competition; patents were mostly bottom of their list. Most firms didn’t feel thatpatents would increase their chances of attracting venture capital (nor did they consider itnecessary to have patents in order to attract venture capitalists) – as opposed to the viewoften held in the US and Japan. Business method patents are thought to stifle creativity andinnovation.The software industry will not benefit from software patenting because it is such a fastdeveloping area; new technology is likely to have overtaken its predecessor by the time ithas obtained patent protection, effectively rendering any such protection useless or obsolete.Innovation may be slowed down because innovators have limited access to the relevant priorart technologies; inadvertent infringements are a threat.Typical of the attitudes expressed is the following quote (Patent Protection of ComputerSoftware p. 63): “Fast moving businesses, like almost all SME software businesses, workand grow at such as rate that following up their own legal rights is a distraction. You canmake more money, faster, by just doing something else and getting on with it. The onlypossible exception is if a big company steals an idea and proceeds to make a lot of moneyfrom it - but your chances of bringing a big company to book on this is effectively zero.”The respondents believed that it is not a good enough reason to adopt software patenting justbecause the USA have chosen to take that path.  The USA has led the way by adopting apatent ‘anything under the Sun’ approach, however such an approach has moredisadvantages than advantages.Importantly, there is the threat that patent offices may become incapable of dealing with theincreasing number of patent applications.  The more applications that are filed the lesscertainty there can be as to a patent’s validity. This may be due to the overworking of patentexaminers and insufficient attention paid to each application.  Eventually, the backlog willbe felt most in the courts, where the only real winners are the highly paid lawyers.  Ifprotection continues to be afforded to increasingly dubious patent applications (as in theUSA), it will be the patent system which will lose out in the long run.Currently the US Patent and Trademark Office (USPTO) is seeing a decline in businessmethod patent applications partly due to the general feeling of inevitability of expensivechallenges to patent validity.  If this trend continues business method patents will becomemerely a theoretical threat, and the memory of such patents will eventually be confined to‘Room 101’.  This suggests that IP feudalism is less of a possibility than would otherwisehave been the case.E-mail: p.tang@sussex.ac.uk______________Michael Blakeney, Herchel Smith Professor, Queen Mary IP Institute, Univ. of LondonTraditional Knowledge (Indigenous Rights)M.Blakeney gave an account of a case study involving a special type of rice grown in Mali.The Malian rice, which is bacterial blight resistant, had been selected and preserved byMalian rice producers, but researchers from the University of California Davis (UCD)subsequently obtained a patent to the rice. Following mediation, UCD offered scholarshipsto the indigenous people of Mali in return for the use of their knowledge.Should such a case fall within the scope of patent protection, or are there arguments for adifferent ‘sui generis’ protection?  MB argues that the idea of awarding patent protection to‘inventions’ involving traditional knowledge (if they can technically be called inventions) isincompatible with the patent system in its current form.  IP law is supposed to be forwardlooking rather than offering rewards for accomplishments of the past.E-mail: M.Blakeney@qmw.ac.uk__________Alan Story, Kent Law School, University of Canterbury“What does IP mean to you in your daily life?”Alan Story offers a critique of the essay competition launched by the World IntellectualProperty Organization (WIPO) and introduces a counter-competition under the same titlewhose organisation committee he co-chairs with Lee Marshall:See www.wipout.netfor more information.E-mail: a.c.story@ukc.ac.uk

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