For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Thursday, 26 June 2014

Sir Hugh Laddie Lecture: Professor Hugh Hansen warns of the culture of the public domain

The AmeriKat, five years ago, when she really
was a tiny little kitten 
It has been five years since the first Sir Hugh Laddie lecture at UCL's Institute of Brand and Innovation Law. In June 2009, the world was coming to terms with the death of Michael Jackson, Justice Sotomayor (as she now is) had only just been nominated to the Supreme Court, L'Oreal v Bellure was before the ECJ (as it then was) and the AmeriKat published her first IPKat post.   Sandwiched in between stories on biologics and the nomination of David Kappos to Director of the USPTO, was a story about Jammie Thomas-Rasset, the Minnesetoan mother who illegally downloaded and shared 24 songs and was ordered to pay $1.92 million to four major musical labels.   Back then the AmeriKat commented that the RIAA should have been concerned with the public perception of their litigation in these circumstances.  The writing, she felt, was on the wall about how this saga would ultimately play out and it wouldn't play well for copyright law or litigation.

Fast-forward to five years later to a lecture theater in Gower Street in London where Professor Hugh Hansen of Fordham Law School is making his closing remarks in the 5th Sir Hugh Laddie Lecture on the "Culture of the Public Domain".  "Copyright owners are part of the problem [of the growing strength of the culture of the public domain]", he states.  In support, he cites the poor choices of copyright owners in some litigation and the inability to judge reactions to their actions.  Pacing the stage, he recounts the successful case the RIAA brought against a mother - probably Minnesetoan - who illegally downloaded music.  Instead of taking the court award and settling for a reasonable amount, the RIAA instead decided to make an example of the defendant.  This type of conduct, he argues, exacerbates the problem of the culture of the public domain.  ["The problem of what, exactly?", Merpel asks.]  

Professor Hansen
Well, Merpel, let's rewind to the start of Professor Hansen's lecture.  The culture of the public domain is a very American concept, commenced Professor Hansen, but it is spreading "like a virus".   To illustrate the concept, Professor Hansen introduced the first actors of the evening -  "The Traditionalists".  The Traditionalists existed in a pre-digital world of small groups of technically challenged attorneys and traditional creative industries who held a natural law view of IP protection.  This group of people considered that the truth of copyright law was that it is a natural law right which protects investment and benefits both creators and the public.  The public domain, in this context, happens when these rights expire and this is considered a bad thing.  In this traditionalist world there is "no concept of a public domain reservoir that we all want to tap into."  Then there are the "Agnostics and Atheists".  This group comprises of academics and others mostly from the tech side who want to limit copyright on the basis that copyright is a blockade to what they want to do with technology.  There are newly anointed apostles of this movement each day who are young law students, taught by Agnostic/Atheist law school professors, who go on to clerk for federal judges.  Professor Hansen argued that the decisions of some circuit courts in the copyright sphere are probably as a result of judges who do not know much about copyright being guided by clerks "imbued with the public domain".  The goal of the Agnostics and Atheists is to limit copyright and maximize the PR value of the public domain, but Professor Hansen argued that their intellectual basis for doing so is either "intellectually dishonest or grossly negligent".  

US Constitution
He cited Larry Lessing as the originator of this doctrine who pointed to the purpose of copyright as incentivizing creation.  The "incentivization" argument is allegedly derived from the US Constitution.  Citing the Preamble of the US Constitution and, more specifically, the Copyright Clause, Professor Hansen explained that the latter clause is preambulatory.  It is there to explain what copyright and patents were to people who did not know.  It was not a controversial clause for the Framers.  Twelve of the thirteen colonies already had common law copyright protection.  As such, the Copyright Clause does not say that these rights are being "created", merely that they are being secured - they are already in existence.  Further, unlike the Statute of Anne, the Clause refers to the securing of the "exclusive Right".  Drafters would not use the word "exclusive", Professor Hansen argued, if you meant that there needed to be a balancing act between the rights and the public domain.  In addition, citing the Copyright Act of 1790, Professor Hansen argued that because the Act protected, retroactively, subject matter that was already in existence there was no basis to argue that the copyright legislation was there to "incentivize".  That is to say, you cannot incentive the creation of copyright works already in existence or works that are necessary (i.e. maps, which were the subject of the 1790 Act).  

Being openly anti-copyright is one thing,
but disguising that sentiment as
pro-public domain is another,
argued Professor Hansen
Professor Hansen then turned to the concept of copyright as a monopoly right arguing that copyright was no such thing.  Copyright and patents are not true monopoly rights.  They are just a property right as, unlike monopoly rights, they do not afford the owner any market power.  So why is it called a monopoly?  Professor Hansen's view was that it was probably because initially it was difficult for the public to grasp the concept of intangible property.  Now, however, "monopoly" is likely adopted as a pejorative term.  So by the alignment of "monopoly" with "copyright"  the public starts to associate copyright as a negative concept which is a problem.  This association is leveraged by the public domain believers and the public domain is advanced as a solution to the purported problem of the copyright monopoly.  The antidote to this contagion is by framing copyright as a property right.  Property rights restrict what we can do with other people's property.  We cannot take other's property.  As soon as the term "property" enters the frame then people are forced to think about "right" and "wrong".  

The father of property - John Locke
After a detour into the Lockean concept of property rights - labour creating a natural right to property - which is the basis upon which American property rights are established, Professor Hansen turned to the question as to whether the public domain is a good thing.  The argument is that without the public domain, fewer new works are created and the number of derivative works decreases.  However, he argued that consumer cost is the same as the money that is generated goes to the producer who benefits from the public domain by circumventing the length of the creative process.  To illustrate this point, Professor Hansen asked the audience to list what they considered to be the five most important works.  After the audience mentally listed them, he asked them to consider whether those works were created because the public domain was allowed to happen.  The answer, he said, to this question is "No.".  

Bringing us up to where the AmeriKat started this post, Professor Hansen concluded that the problem of the culture of the public domain is that it adversely affects moral value "by encouraging lack of sensitivity in harm being done others in the taking of their property".  The Agnostics and Atheists never say that downloading is "wrong".  With the culture of the public domain, the morality of copyright protection no longer enters into the debate (a point that IPKat Jeremy also made at his recent Fordham presentation).  In this environment it becomes okay to take one's property.  Doing so is justified because copyright is not considered a property right, its considered a monopoly.  Monopolies are bad and should be destroyed, especially if the destruction is justified on the grounds of the creation of new works. The creation of new works, after all, is the goal of the copyright system because the system is meant to incentivize.  However, over the last forty minutes as summarized in this post, Professor Hansen sequentially broke apart this justification for the culture of the public domain with characteristic fury and fervor that makes the Fordham IP Conference such a joy to attend.

The AmeriKat was intrigued by Professor Hansen's provoking "five most important works" question, but she disagreed that there was no creative value in the culture of the public domain.  Frantically scribbling away in a note to IPKat Jeremy, she argued that the public domain actually did create new IP.  For example, the creation of the culture of the public domain and the behaviors in the public domain pool (e.g. illegal downloading) demonstrated that there was a demand for certain copyright works which were arguably not otherwise available in a manner which the public wanted to consume them.  This demand created a technological response to provide licensed copyright works to the public by easier means across multiple jurisdictions, e.g., Spotify, Netflix, etc.  This technological response created IP in its own right and provided legal access to property rights of others.  However, after a lively discussion at dinner, she countered-argued her own point.  Perhaps its not the public domain itself that created these works, but the fear of the public domain and its growing culture that generates works and innovations (lest you lose all your property in the public domain reservoir with no source of income from any new property developments).  

The AmeriKat and the IPKat team would like to commend Professor Hansen on an excellent and entertaining lecture.  The AmeriKat would especially like to personally thank her alma mater, UCL and IBIL for continuing to organize such intriguing debates on contested IP issues in the memory of the wonderful, and much missed, Sir Hugh Laddie.  

15 comments:

Anonymous said...

Neither Shakespeare nor Walt Disney would likely have attained their enduring success without access to the public domain of folktale and legend - the "cauldron of story" as it is sometimes known. The "five top works" argument is broken before it begins...

Francis Davey said...

What an extremely odd point of view is reported in this post.

Anyone with a nodding acquaintance with copyright history will know Macaulay's speech delivered in 1841 in debates on a copyright bill in the House of Commons:

http://www.gutenberg.org/files/2170/2170-h/2170-h.htm

His argument is quite recognizably to do with incentivization. To suggest that Lessig invented the concept is astonishing.

Of course Macaulay was speaking in England where there most certainly is not - or at least was not historically - a Lockean justification of property. 5 minutes with Glanvill or Littleton would disabuse the reader of that. So maybe the Professor is merely putting an American point of view, but Copyright is an international concept and not merely an American one, so his views should be read with caution.

As for monopoly (and Macaualay is quite clear about that), I have always found the idea that copyright does not give a monopoly right very odd. Again, as historically understood a monopoly is an exclusive right someone has to do something, eg to hold a market or fair or to print a book. Copyright is very much in that tradition and when it was first enacted in the UK that is how it was understood. Economists are happy with the idea of "monopolistic competition" which is a useful modern way of understanding how J.K.Rowling can have a monopoly over Harry Potter books but not all books.

Now of course I write as one of those people far far gone into the dark side as the Professor might think, but it would be useful if we could have a discussion of copyright policy without being anachronistic.

For much of my life I have always thought Romeo and Juliet to be one of the most important works of English literature. As is well known, the play draws a great deal from earlier works such as Romeus and Juliet. Maybe I have misunderstood the Professor's argument here, but it seems confused.

Jeremy said...

Francis, don't worry! When Annsley wrote"He cited Larry Lessing as the originator of this doctrine who pointed to the purpose of copyright as incentivizing creation", the words "this doctrine" referred to the doctrine of the culture of the public domain, not the doctrine of copyright as an incentivising element.

Simon Newman said...

Great to hear such a fair and balanced meditation on the value of the public domain last night. My students particularly enjoyed the shouting match at the end. >:)

Colonial Curmudgeon said...

Dear Jeremy:

Wouldn't it be loverly if the English were to utilize such modern conveniences as the internet, webcasts and archives to make such wonderful events available to those of us off in the colonies who can't attend?

Any chance we'll get to see Hugh Hansen online?

I hope he didn't utter any profanities, which he has been known to do when excited...

Best regards,

Colonial Curmudgeon

Jeremy said...

Colonial Curmudgeon, you are right: in this day and age, events of this nature -- and this magnitude -- should be streamed or otherwise made available to a much bigger audience.

Our own seminar earlier this year was streamed, with over 600 people following it in part or whole, and we encourage firms who host our events to do this.

john r walker said...

Jeremy & Francis
While not really sure what "culture of the public domain" exactly refers to ( it is a pity that the talk is not a podcast), I feel that could be a touch of the good old/new 'classic' paradox,at the heart of the "The Traditionalists"Vs "culture of the public domain" 'debate'.

For example the wisest answer to the question: Is Shakespeare a new and unique expression (of a unique author),or,is Shakespeare a culmination of centuries of other tales (and many authors)? Is: both statements are True. And thus, neither statement is True,on its, own.

Currently Reading SJ Goulds "The Hedgehog The Fox and the magistrates pox". Bacon's paradox, Swifts Honeybee vs the Spider and the Hedgehog vs the Fox are themes that S J Gould spent many years thinking about and writing on, possibly worth a read.

Jeff John Roberts said...

Is Professor Hansen serious about these notions? Or is he just stirring the pot to rile us "intellectually dishonest" and "grossly negligent" IP thinkers of the North American persuasion?

The reason the public domain is much on our lips is because entertainment conglomerates have persuaded governments to extend copyright to absurdly long terms.

Awarding Disney a term of 95 years to Mickey Mouse, or giving me a copyright of life + 70 years in this Kat-comment is just absurd -- under theories of Locke, natural law, or the Queen of Sheba.

Call it a property right or a natural right, the effect of century-long copyright is the same: a diminished supply of cultural material to tell stories.

And while so-called ReMix culture attracts its share of zealots, its premise is correct: new creative work (and IP) depends on access to a common stock-pot of images, characters, and so on.

As for Professor Hansen's odd interpretation of American IP history, I wonder how he reconciles the Founders' allegedly lofty conceptions of copyright and patents with the rampant piracy the Founders encouraged as part of the country's nascent industrial policy. It's a shame he, as a Brit, couldn't step into 19th century America for a day and try to copyright his work.

I can only hope Professor Hansen was trying his hand a provocateur for an evening (if not, god help us).

In any case, he has succeeded in provoking debate. A big thanks to the AmeriKat for another of her many excellent accounts.

Jeff John Roberts (Guest Kat Emeritus)

Francis Davey said...

John R Walker: I agree with your "a pity" point because it means we aren't quite sure what was being said.

On Shakespeare, I mentioned Romeo and Juliet in particular because the plot was lifted (in some cases very closely) from Arthur Brooke's 1562 work. Had the 1988 Act (or indeed any Berne compatible law) been in force at the time, Shakespeare would have been guilty of copyright infringement and, under UK law, criminally so. It was that specific point, rather than the more general "drawing on culture" idea that I had in mind.

Clearly we could trace the star-crossed lovers back to Pyramus and Thisbe and beyond...

Simon Newman said...

@Jeff John Roberts - Prof Hansen is very much American, not British!

john r walker said...

Francis

In Shakespeare's day the audience for performances would have been much bigger than the number of people who could read (or afford to buy a book).

Was there at that time, some sort of Performance rights? I.e did Shakespeare or the Globe have a right over performances of Romeo and Juliet ?

Anonymous said...

Having a common culture, a public domain, is essential to a free society. Nobody would be able to write anything, since even the Latin characters used to devise words is the creation of someone!

john r walker said...

On a more careful reading, I think that what Professor Hansen was referring to as "a culture of the public domain" is a culture that seems to think that, if it is visible to the public then its 'public property'. And that he thinks that is is not a good thing.

Anonymous said...

There is a pervasive undercurrent of the "right of the commons" challenging all aspects of intellectual property.

In the States this is referred to as an Attack from the Left.

The U.S. is in the vanguard of protecting IP from this angle of attack as we tend to be more-antisocialist than Europe.

The tricky part, of course, is that the patent system (as the most visible example) is also under attack from the Right; that is, from a sector of the economy most often aligned with what is normally considered the Right wing of politics: the pro-business sector. This is better identified as the Large multi-national corporate side, which in truth owes NO allegiance to any one nation, and pushes for weakening of IP rights across the board because they would prefer to be able to compete on other factors that they can control outside of innovation (such as market size and a better ability to move cost factors easily from one state to the next).

The bottom line summary is that strong IP rights better serve the promotion of innovation for innovation's sake, quite apart from the dogmas of both the Left and the Right.

Careful scrutiny of the basis of any styled "improvements" is the only mechanism to guard against weakening of IP protection.

Anonymous said...

Hansen's lecture (at least as reported here) seems very odd.

In particular, he appears to be trying to finesse an implication (without ever quite stating it, because it is demonstrably false) that the Founders of the U.S. Constitution viewed copyrights and patents as Lockean "natural rights", and that a natural-rights view, with its implication of support for perpetual copyright, was therefore a "Traditionalist" view.

I say "finesse an implication, without ever quite stating it", because Prof Hansen surely knows that this is simply not true.

As he surely knows, both Jefferson and Madison in fact denied any such view, in terms -- Jefferson in his "he who lights his taper at mine" letter (1813), goes on to emphasise that it is social law, made as an encouragement to men to pursue ideas which may produce utility, with costs and benefits to be very carefully weighed, Jefferson emphasising the difficulty, that he knew well ... of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.

http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

Madison too emphasised that such exclusive rights ought to be granted with caution, and guarded with strictness agst abuse, construing such rights as a purchase by the community of property which the owner might otherwise withold from public use; but emphasising that such rights ought to be temporary, because under that limitation a sufficient recompence and encouragement may be given. Even then, he is concerned about the potential for "evil effects".

http://www.volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#1181652886

https://www.techdirt.com/articles/20080220/020252302.shtml

This is explicitly the language of "incentivization", entirely consonant with copyright only on application, strictly limited to 14 years renewable for another 14. It is a world away from copyright as a "natural" right, or any notions of perpetual copyright.

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