IBIL Seminar Report: Where are the leaders in copyright law? (Part II)

Laws that people will obey

What would God's
copyright policy look like?

The primary role of a good leader, Patry suggested, is to shape and introduce copyright laws that people will obey.  Many policy makers, politicians and government officials state that they have to focus on the enforcement of intellectual property laws because if they do not focus on enforcement, then lack of effective enforcement will erode exclusive IP rights and then the whole IP system is weakened.  Patry disagreed that this “top-down” approach is effective and argued that it can lead to laws which do not reflect societal norms.  Good copyright policy focuses on introducing and shaping laws that most people want to obey.  Where, as in copyright law, most infringement occurs in private it is especially important that laws are created that people will obey.  Strong copyright leadership will therefore focus on creating these types of laws from the societal perspective, and not from the “top down” perspective.  If the “top-down” approach did not work for God and Moses on Mount Sinai, it is not going to work for copyright law, mused Patry. 

Of course, Patry conceded, drafting copyright laws that reflect society's norms is incredibly difficult because we live in a pluralistic society where people will not share a consensus view on any given issue.  However, Patry believed that it is possible to find a general consensus in society that views a particular course of conduct fair or unfair.  Patry, citing Tom Tyler, explained that most people will obey laws, even where the judgment call is close and will do so especially where the person introducing the law is fair and the process is fair.  It is therefore essential that the process of implementation of the laws (in contrast to the process as explained above) is fair because for people to buy into the law and obey the law, they need to buy into the system that implements the law.  This was the opposite of what occurred during the SOPA and ACTA sagas where the majority of the texts were decided in secret, there was little transparency and very little evidence-based support for the legislation.   Can lawmakers reasonably expect society or sections of society to buy into and obey a law that is negotiated in these circumstances? 

In closing Patry, expressing his jealously in light of the US system, congratulated the Hargreaves and Gowers reviews for their transparent and evidence-based process.  He said that during these reviews the UK Government expressed a willingness to examine submissions and view and shape proposals in light of evidence.  The US, Patry said, is far behind the UK in this respect. 

Discussion

Sir Robin commented that although the UK may appear transparent in terms of how it goes about examining and proposing copyright law, the EU is far less clear.  Copyright law in the EU, he said, seems to “emerge” from non-transparent processes.  Sir Robin commented that perhaps the more one knows about the lawmaking process, the more unhappy one becomes.  This view is definitely one the AmeriKat shares following her foray into European unitary patent politics. 

Sir Robin Jacob

Sir Robin and Patry went on to discuss what evidence would constitute adequate evidence for an “evidence-based” policy.  Examples included, in relation to term extension, whether or not a book was still in print 50 years after publication and more generally, anything that was “self-evident”.  The pair then mooted the topic of “orphan works” (the AmeriKat's previous pet subject and subject of her dissertation when she was a kitten at UCL many years ago).  The answer last night to orphan works problem was, as she concluded in her paper then, to limit damages for copyright infringement in the event that the copyright owner comes forward – much like what was proposed in the Shawn Bentley Bill.  Patry explained that orphan works only became a problem when the formality of registration was no longer a prerequisite to copyright following the implementation of Berne in the US. 

On a more political note, Patry explained that if we want to improve copyright laws and/or to change bad laws that are already implemented, we must stop reaffirming the bad laws.  The more governments commit, by way of international or trade agreements, to bad copyright legislation the more difficult it is to improve those laws or to back track from the legislation.  Was the key message, the AmeriKat wonders, not to make copyright law a trade issue?  But in common-law countries it’s an economic right – it would seem strange not to make an essentially economic right and the commodities that are subject of these economic rights subject to trade-related issues and agreements….

The final go-to question from Sir Robin was where Patry anticipated copyright law to be in 10-15 years time.  “I have no idea”, Patry stated.

Neither does the AmeriKat, but she does know it will not be the “poorer cousin” of the IP seminar circuit for much longer.  The next generation of intellectual property law is considered by some to be the domain of copyright law.  Indeed, Patry’s closing story illustrated the continually raising profile of copyright law in practice:  Patry, who  has now been at Google for 5 years and 5 months, explained that it took him almost 11 months to get hired because Google were then unconvinced that there was enough copyright work to keep one person occupied full-time.  ["How wrong they were!" says the IPKat]

But if the next age belongs to copyright, we need to start locating our copyright leaders who will guide us through the predictably tumultuous road of national and international copyright law, and dare the AmeriKat say it - "harmonzied" copyright law - that will pave the road.  Otherwise we may find ourselves stumbling from one bad copyright law to the next....

The AmeriKat would like to thank UCL IBIL for arranging (yet again) another excellent evening of intellectual property law debate and discussion, in particular to Sir Robin and Lisa Penfold for their organization.  This year's Annual Sir Hugh Laddie Lecture is being held on 27 June 2012 with Judge Rader singing (may be even literally) on the topic of “The growing imperative to internationalize the law”.  You can reserve your places here.