How to negotiate a Creative Commons license in a work contract

Posted on 14 January 2009
Filed under Copyright, Creative Commons, Publishing
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Michael Mandiberg has written a piece, HOWTO Negotiate a Creative Commons License: Ten Steps, targeted at authors working with commercial publishers.

I’ve encountered a similar challenge in a different context: work contracts. Even friendly organizations tend to use legal boilerplate in their contracts — which typically treats your intellectual production as a work for hire, assigning exclusive copyright to your client or employer. This should be problematic for anyone: not only do you lose the right to apply a CC license to your work, you lose the right to use your work for any purpose without getting your (former) employer’s permission.

Without getting into a discussion about the work-for-hire doctrine, there’s an easy way around this. You can assign copyright to your employer, but you get a non-exclusive license, too. This is similar to the logic of the author addenda of the scholarly publishing world. They can do anything they want with the content you produced — but you can, too.

There are some common conditions an employer will want in this situation, which I find pretty reasonable:

The license only applies to non-confidential materials.
The employer gets right of first publication and may want an embargo on other uses (e.g., you can’t publish it elsewhere for 30 days).
The employer has a right of attribution and may want a link back.
You can’t imply the employer endorses your re-uses.

Conveniently, the latter conditions are already written into the Creative Commons licenses.

Here are three live examples, the first two without a CC license, the third with:

Any written work product created by you under this agreement will be deemed a “work made for hire” under Section 101 of the United States Copyright Act of 1976, as amended. [Client] hereby grants you the royalty-free, unlimited, perpetual, non-exclusive, irrevocable right and license to make, use, copy, distribute, display, publish, perform, modify, or translate any written work product not containing Confidential Information for any purpose and in any medium worldwide and to sublicense the foregoing rights, and this sublicense right, to others.

Contributor acknowledges and agrees that [client] owns all right, title and interest in and to the Works, each which is hereby deemed to be “work made for hire” (as such term is defined in 17 U.S.C. § 101). To the extent that a Work may not be considered a “work made for hire,” Contributor hereby irrevocably transfers and assigns to [client] all of Contributor’s right, title, and interest in and to the Work. To the extent Contributor retains any right, title or interest in or to the Works, Contributor hereby grants to [client] a perpetual, irrevocable, fully paid-up license to use, reproduce, distribute, display and perform, prepare derivative works of and otherwise modify all or any portion of the Works in any form or media. Contributor further waives any “moral” rights or other rights with respect to attribution of authorship of integrity of the Works.

Subject to the terms and conditions hereof, [client] hereby grants to Contributor a royalty-free, unlimited, perpetual, non-exclusive, irrevocable right and license to make, use, copy, distribute, display, publish, perform, modify, or translate the Works (including portions thereof) for any purpose and in any medium worldwide and to sublicense the foregoing rights, and this sublicense right, to others; provided, however, that (a) Contributor attribute the Works (or portions thereof) to [client], and require sublicensees to do so; (b) any such use can only be made after thirty (30) days following [client]’s first publication of same (unless [client] agrees otherwise); and (c) Contributor shall require that sublicensees may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement with [client]. Notwithstanding the foregoing, Contributor may not make any changes to the Work in a manner that alters its editorial intent without prior written consent; however, this provision shall not bind any sublicensee receiving a license which permits modification.

Any Works not containing Proprietary Information shall be made available to [author] under a Creative Commons Attribution 3.0 Unported license. Attribution of non-proprietary material shall be in the name of [client].

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TACD IP conference review

Posted on 13 January 2009
Filed under Whatever
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Here are my liveblog posts from Patents, Copyrights and Knowledge Governance: The Next Four Years, hosted by Trans Atlantic Consumer Dialogue (Washington, DC, January 12-13, 2009), in the order of the sessions [not necessarily the order I posted them]:

I’m not sure if the audio, video, or slides will be posted online — if they are, I’ll link them from here at a later date. Also send me links to other blog or press coverage of the event.

There were good and less-good aspects of the conference, but I’m too exhausted to say much other than this:

When Lawrence Lessig announced he was shifting focus away from information policy, some people were concerned it might leave a vacuum of leadership in the field. With all the luminaries and young leaders at this conference, from across Europe and North America, doing remarkably varied work, it’s clear there’s no lack of leaders or good ideas.

The only question is whether policymakers will listen. After this conference, I’m hopeful.

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Liveblog: TACD IP: Innovation Inducement Prizes

Posted on 13 January 2009
Filed under Patents
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The next panel is on innovation inducement prizes. [I’m posting this out of order because I couldn’t get a connection during the session. I didn’t format my notes then, and I’ll post them in raw form here.] First is Steve Merrill of the National Academies of Science.

in most circumstances, prizes don’t replace patents
circumstances appropriate for prizes are limited
can be complex to administer with non-trivial administrative costs
as we consider & implement public prizes, we need to build in a system to evaluate effectiveness

prizes for achievements after the fact — don’t necessarily help

prizes ex ante — do induce effort/attention direction at specified goals

discrete prizes: designed for a particular objective; many of these, long history
series of prizes: Innocentive, X Prizes
program of prizes: Royal Society of Agriculture
system of prizes: 1 proposed

Royal Society of Agriculture: 100 years, awarded prizes & metals for innovative farm machinery
both monetary and honorific
each year, society targeted areas and announced in advanced

system: Medical Prize Innovation Act
awards based on improvements in public health
designed to produce open competition in production and distribution — patents unenforceable after award of prize

effectiveness of prizes:
purposes: achieve technical objective
encourage participation, e.g. of non-traditional participants [participatory science]
encourage unorthodox approaches (cf. limits of peer-review system)
often designed to encourage collaboration and team-building
often designed to educate & inspire non-participants [participatory science]

little scholarly evaluation of prizes
Lerner re: royal society: investments of winners 3x monetary prize; medals more attractive than monetary prizes

many rules to be decided
have to promote existence of prize to spur participation

what topics work?
ones where the market isn’t serving
but doesn’t work well for basic science

judging and establishing rules is tricky

there is a larger role for prizes than are currently used, but it’s not unlimited
don’t underestimate the complexity and cost of organizing prize contests

Next is Jamie Love of Knowledge Ecology International.

recommendations:
de-link R&D incentives from prizes
create sustainable institutions to increase the supply of global public goods

deficits in current funding system
only 10% of new drug approvals in 2007 were priority drugs

Next is Michelle Childs of Médecins Sans Frontières:

there is an absence of needs-driven research
lack of drugs, diagnostics, vaccines
antiquated or ill-adapted tools

e.g. diagnostic technology for TB as used not changed since 1800s; 50% failure rate

WHO IP report: patents not relevant or effective for needs without a market

WHA 60.30: needs-driven R&D; address link b/w costs of R&D and price of medicines, etc.

[link b/w science-innovation-entrepreneurship — attracting participation in general, but especially to needed areas]

recommendations:
need targeted funds
support WHO proposal by Bolivia and Barbados
need new models for i+a
de-link R&D costs from prizes

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Liveblog: TACD IP: Patent Reform

Posted on 13 January 2009
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The next panel is on patent reform. [I’m posting this out of order because I couldn’t get a connection during the session. I didn’t format my notes then, and I’ll post them in raw form here.] First is Josh Lerner of Harvard Business School.

change 1: created central patent court — had been significant divergence of results among different circuit courts
so central court fell in love with patents

change 2: patent office went from cost center to profit center
led to pressure to increase patent grants — also increased litigation

truth 1: there will always be mistakes
unrealistic to expect no “bad” patents

truth 2: there will always be more chaff than wheat
most innovations are worth little

truth 3: incentives matter
lower examination standards -> more applications -> fewer examiners/patent -> poorer examinations

truth 4: information flow is critical
examiners will always have limited information

needed reform: getting more information
opportunity to challenge before costly court system
current system is stacked against opposition

needed reform: address litigation
address issues with jury trials

currently:
congress: IT wants one thing, pharma wants another
USPTO: some progress, but limits to self-policing
courts: eBay, KSR, Bilski

why should you care: patents still relevant

Next is Dan Ravicher of the Public Patent Foundation.

everyone can agree that patent systems can be made better
i don’t care about the outcomes, as long as the processes are fair
who are the stakeholders: patent holders, patent attorneys, patent officials, public
we should always treat opponents with respect

reforms:
have a fair process

make quality job #1
not quantity
remove the examiner quota system
reform the continuation system
introduce more points where patents can be challenged (could go to pure registration system, with no assumption of validity upon suit [but wouldn’t this create a massive amount of uncertainty?])

create fair use for patents
start negotiating point: remove injunctions as a remedy to infringement (just set a fair price for compulsory license — if infringer can’t pay, de facto injunction)
research: no research should be precluded
civil liberties

Next is Philippe Aigrain of Sopinspace.

standards of patentability

what won’t work: patentability reform just be first job
standard response: we don’t need to reform patentability standards
why this doesn’t work
USPTO adopted more extensive examination rituals — first year, sw patent grants dropped; but went up after that — because we can generate sw patent applications at will
Europe: 6-10 year backlog for category including sw patents
it’s in the interest of every innovator to understand standards of patentability

so how can we get generally understable standards of patentability?
Europe: some type of entities can’t be patented
US: history of software: committee during Carter admin was divided b/w copyright and no protection for software — but case law decided that subject matter restrictions were out

simplest approach to patent reform is to codify standard that information/processing can’t be patented — goes back to Jefferson’s stand that ideas can’t be patented

plan B: new examination ritual that leads to reject all patents on software, gene sequences, algorithms, data
already happening: US: Bilski; Europe: patent directive

Q&A

lerner: fair use is an interesting idea
compelling economic case for research exemption
less comfortable with human rights exemption — it’s amorphous

aigrain: sympathetic to fair use, but has to be carefully constructed
Europe has research exemption

ravicher: designing a fair use would be a deliberative process
if we have constitutional rights, we have to protect them
as long as the process is fair, it’ll be OK

questions:

Q: mentioned getting info into the patent system. often there’s a lot of information, but it’s of dubious quality.
lerner: it’s a needle in the haystack — examiner doesn’t know where to find the right pieces of information.
rules limit ability to bring up facts mentioned during patent examination during litigation — disinclines people to raise the info earlier.

ravicher: removing the quota system would also encourage people to raise the info, knowing that it might be considered.

love: alternatives to monopoly — in a system of liabilities rules, how to compensate for non-voluntary use?
ravicher: there are various arbitration systems, ways to compensate for loss, etc.
lerner: it may seem easy now, but later it may get more complicated.

karachelios: 1: society assumes that a system can set it owns boundaries. but it’s not that easy. 2: in case of doubt, grant or review? cultural context: if it’s profit center, grant it. if you think patent=innovation, then grant it. [systematic undervaluing of public domain, underestimating the costs of uncertainty, etc.]
ravicher: could create financial incentive for patentholders for bad patents — right to refund if your patent is held invalid.
aigrain: it’s not about old vs. new technologies, it’s about the nature of certain technologies.

Q: different purposes of patent system
ravicher: purpose is to enhance the state of technology available to the public. if the purpose is to incentivize innovation, system sucks. otherwise patents would be stronger.
lerner: sequential innovation — stronger patents != more innovation.
ravicher: sequential innovation depends on access. perspective should be on public access to technology, not the private right to control inventions.
aigrain: software copyright has enabled competition of approaches (proprietary vs. open) — patent gives only monopolies. orphan drugs aren’t just small or neglected diseases, but diseases where medicine is unpatentable.

Q: administrative reform: is patent examiner union a problem?
lerner: both labor & management have been incompetent.
ravicher: i have no solution.

rashmi rangnath: 1: what was bad about the patent bill from 110th congress? 2: what about peer to patent project?
lerner: damage calculation reform — opening pandora’s box of complexity and ambiguity. rather focus on patent quality.
ravicher: peer to patent is interesting, helpful to empower public to participate as early as possible. problem: even if we give examiners better info, if there’s other issues (e.g. not enough time), it won’t be helpful.

perens: people who’ve seen patent applications can’t participate in other projects — introduces issue of treble damages (for looking).
ravicher: the doctrine has changed somewhat but still has problems.

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Liveblog: TACD IP: Openness

Posted on 13 January 2009
Filed under Copyright, Open access, Patents
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[Kevin Donovan retrieved this post from yesterday, which I had somehow lost. Thanks much!]

The next panel is on openness. First up is Konstantinos Karachalios of the European Patent Office.

Civility is important. The field is very polarized. Our publication contains others’ vision.
The definition of patents is openness — see its etymology. The opposite is secrecy (latent). But the patent system has come to mean its opposite in public perception. How can a system survive meaning its opposite?
Openness and transparency are major components of social trust. Patents are a pivotal element of the knowledge economy. Patent offices offer a framework of global governance — you may criticize TRIPS, but at least there’s something there to criticize. Patent offices have been assigned to focus on innovation
Backlogs are a serious problem. It’s a latent patent thicket.
Transparency and availability of information about patents is a serious issue.
How much is an ICT standard worth? If there are patents in it, it’s a goldmine. Proposal: coordinate competition authorities and patent offices, and link it with standardization bodies.
Technology transfer to developing countries: if this fails, other Millennium Development Goals will fail. Climate change: can’t progress until people know how much it will cost.
Patent system must look outside its narrow, legal/technical field and engage more broadly with social dialogue.

Next is Tim Hubbard of the Wellcome Trust. Genome informatics. Title: “Openness and privacy: can you have your cake and eat it?”

Open data, releasing it as you collect it, is a recent idea. Human Genome Project drove this model. Has been adopted as a requirement of many funders — must include data access policy in grant requests.
Value of open data: maximize investment, enable competition/collaboration
Openness has risen in other fields: OA literature, open source software
2003 report by Wellcome Trust did the economic analysis which lead to its OA policy. Others have followed. Remaining problems: name control, permission problems (e.g. data mining)
Pubmed Commons: Comments, tags
Recommendation: Success of open data and OA literature hasn’t yet lead to mandates everywhere — should become a standard.
Data sharing: Cultural attitudes are a problem (credit/attribution, adjusting to new competitive environment — people interpreting your data before you can). Other practical problems (e.g. standardization).
Privacy: genome sequences and genotypes are anonymized, but potentially re-identifiable. Individual data will be limited to bona fide researchers, but summaries will be publicly available — but we’ve shown that these can be re-identified too. But will your registered researchers share it with unauthorized third parties?
In the future, the whole of the UK NHS will have DNA data attached. Plans for connecting this to research. People like to contribute to health research, but don’t want their data leaked or misplaced. UK: significant lack of trust about this.
Hard for data to be anonymous and useful. Need to be able to do research with fine granularity of data.
Potential solutions: Make it fuzzy (but hard); change in social values; do everything behind closed doors (literally) — but slows research; or run researchers’ code on the mainframe system, but the results are only released as summary data
Latter: Can’t make it perfectly leak-proof, but if you make it “good enough”, most legitimate researchers will use it; make it hard and illegal to discourage bypassing
Is this a model of a generic implementation for openness + privacy? [But everyone has to trust the honest broker]
But conflict with profit motive, even in public sector
Recommendation: establish principles regarding private data
Recommendation: standards for data formats and implementation

Next: Heather Joseph of SPARC.

Need for openness in scholarly arena. Raising awareness of lawmakers of benefits of openness, but need to see it more in policy. Keeping policymakers convinced of benefits, even for biomedical research (other fields worse), is tenuous. But initial recognition that communicating results is an essential part of research. And growing view among public that openness in research is good, and an essential component of investment in research.
Need for policy framework to remove access and permission barriers to maximize investment. But uptake so far mostly limited to biomedical research. And there’s pushback from opponents.
Time to move from =”data management plans” to greater push for OA to data.
Incoming administration does seem to value communication of science. Key posts filled to date have been filled to some extent with scientists who demonstrate this.
OA policies should be made throughout administration — whether through executive order or regulation — and not as part of IP policymaking.
OA policies are low overhead, aren’t punitive, and take advantage of the Internet to maximize existing public investment in research, fueling innovation and economic growth

Q&A:

Perens: (1) Patent system is seen as opaque because IP policymaking is undemocratic (WIPO). (2) To protect personal data, give it IP protection and require users (e.g. companies) to get my permissions or face class action suit. (3) Are we talking about just OA to research literature or about overturning Bayh-Dole? A: (1) Patent offices must be advocates for transparent. (2) IP protection probably won’t help much when a junior official loses a laptop of private data on the train. (3) Have to draw distinction between OA literature and patents — many Congressional offices ask about relation to Bayh-Dole.
Love: If there was an access to knowledge treaty, what specific issues would you want to include? Hubbard: OA data and literature; mandated protection of private data, to make it useful for research; greater openness to economic data; standards for government data. Joseph: OA literature and data — need to repeat the value of this to any innovation, competitiveness, A2K agenda. Karachalios: Define a technology commons. See climate change: can’t continue with private thinking in the face of public challenges. Hubbard: Everybody seems to think they’ll make a fortune from tech transfer, but it causes a significant disruption to other activities. Another prisoner’s dilemma.
Jonathan Band: Crown copyright — having U.S. government works in the public domain creates a lot of value. But other countries hold copyright on government-created works. We should advocate for a change to this.

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Liveblog: TACD IP: Innovation and Access for Medical Technologies

Posted on 13 January 2009
Filed under Open access, Patents
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The next panel is on Innovation and Access for Medical Technologies. First is Anthony So of Duke University.

Perfect storm in pharma industry: lower productivity of R&D pipeline, increased generic competition, VC funding drying up
Clinical trials as a public good: non-transparent trial results (selective disclosure); avoidance of clinical trials that might reveal unfavorable outcomes (head-to-head effectiveness not compared); data exclusivity; shelved products
Public funding for trials = less need to recoup costs with high prices
Opportunity: Call for comparative effectiveness clinical trials; call for economic recovery package
Implementation issues: Start with revenue-neutral strategy with targets of opportunity (e.g. comparative effectiveness trials); strategic support for alternative business models for neglected diseases; must not have conflicts of interest
Recommendations: Public access to full clinical trial protocols and regulatory submissions; establish an independent entity to conduct clinical trials in the public interest; offer funding incentives for alternative business models to lower the costs of drug development

Questions:
[I asked about the FDA Amendments Act and clinicaltrials.gov, as well as the U.S. withdrawing support for the Declaration of Helsinki.]

Jamie Love asked a question but I was too busy Googling the above to pay attention.

Q: Is there a standard model for drug development that takes these concerns into account?
There are common elements: royalty-free access to developing countries, establishing the conditions up front from funding.

Next is Sophie Bloemen of Health Action International.

Recommendation: Apply competition policy more strictly in the area of pharmaceuticals.
Recommendation: Move regulatory authority from the European Commission’s Directorate General of Enterprise and Industry to DG of Health and Consumers.
Recommendation: Re-assess IP policy toward developing countries. No correlation between EU position at WHO IGWG and in bilateral trade agreements.

Next is Ellen ‘t Hoen, formerly of MSF and futurely of UNITAID:

Use of Doha flexibilities is widespread
But older (generic) ARVs are much cheaper than newer second-line ARVs
UNITAID is a multilateral funding mechanism for AIDS, TB, and malaria drugs. Explicitly supports Doha principles and other innovative mechanisms.
Patent pool [voluntary collective license]. Supported in WHO global strategy on IP, UNITAID commitment, NGO support, response from patented and generic manufacturers positive
Recommendations: Support UNITAID initiative to set up a patent pool for LMI countries. Support i+a agenda: implement WHO IP global strategy, WHA resolution 60.30. Obama should tell WHO DG to release Bolivia/Barbados proposal.

Next is Judit Rius of Knowledge Ecology International:

Recognize the Doha Declaration, honoring the public health flexibilities in IP rules. Countries have the right to do this, but US and Europe are threatening when they do so. Don’t negotiate for TRIPS+ provisions like data exclusivity.
Mandate open licensing of public funded R&D to developing countries.
Promote R&D incentives that separate innovation from market for the product, e.g. prize funds
Inducements should include open source dividends to encourage open sharing of knowledge, data, material, and technology
Support a biomedical R&D treaty (WHA 61.21) — sustainable financing for needs-based R&D, open access to scientific articles and data from publicly-funded research

Next is Rob Weissman of Essential Action

Renegotiate bilateral FTAs: Eliminate TRIPS-plus measures (minimum: renegotiate to revise patent rules to match changes in Peru/Panama), abandon anti-counterfeiting agenda for medicines (including ACTA)
Climate change technologies: no pressure on countries for using TRIPS flexibilities regarding climate change technologies; publicly funding technologies openly licensed to developing countries
Biogenerics: biologics are much more expensive than conventional drugs; no process for generic approval. Issues:
- Regulatory pathway
- Data exclusivity (submitted regulatory data — generics point to data submitted previously; exclusivity means they can’t use that data and have to re-do the tests at high expense) — recommendation: no exclusivity (alternative: cost-sharing, generics pay a share of the disclosed costs of trials)
- Patent-related issues: how do you figure out which patents apply to a drug (patents listed in Orange Book), how do you resolve patent disputes before a patent expires — recommendation: disclose patents as a condition of enforceability, no delay for when generics can challenge a patent (industry wants a delay), no requirement for generics to share confidential information with patent holder (industry wants to require disclosure so they can assess potential infringement).
Consequences: could have massive savings with an efficient generic approval system. Affordability depends on an effective generic market

Questions:
Love: How does biogenerics track in Europe?
Weissman: I don’t know.
Sarah Rimmington of Essential Action: Europeans have higher data exclusivity than 5 years under Hatch-Waxman. Why shouldn’t we have higher levels like Europe? Well, Europeans have price controls.
Weissman: Should they be called biogenerics or biosimilars? Question is whether they’re substitutes or in the same class.

Love: If WHO begins discussion on an R&D treaty, what advice would you give negotiators on what to include?
Rohit Malpani of Oxfam: Have to clarify funding levels.
‘t Hoen: Principle is that everyone contributes to the R&D. Priority-setting is important: how do you identify needs.
Weissman: Still being able to have a patent system for drugs makes the R&D treaty more politically feasible.
Rius: Negotiation needs is start. Prioritization is important. How to fund it is important — not high prices. Who pays for it — must include middle-income and some low-income countries.

Aigrain: Do you plan a campaign to move authority to SANCO?
Bloemen: Yes, we are planning to campaign on it.

Q: Does the fact that citizens in Europe and U.S. will have crisis with access to medicines will change the way they see it? Do we have something to learn from developing countries?
Weissman: Reality is industry vs. consumers (governments, employers). Pricing fights: biogenerics, Medicare compensation for publicly-funded drugs, reimportation.
‘t Hoen: Pricing crisis will offer opportunity — more people will get involved, offer ideas.

Malpani: Advance market commitment, priority review voucher: Comments?
Rius: They’re good — consequence of IGWG. But implementations are just at the service of the current business model. But doesn’t de-link from monopoly rights. Need i+a.
‘t Hoen: Companies have scooped up extra subsidies through this. AMC goes to a pre-existing product and doesn’t change the IP. Priority review is difficult: speeding up health review is not in the interest of health consumers. But encouraging to have new proposals and to test them. But we need to assess them critically.

[end of conference. I’ll post the notes from this morning later, as well as my missing-but-now-recovered post from yesterday.]

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Liveblog: TACD IP: Innovation, Creativity and Access to Knowledge

Posted on 13 January 2009
Filed under Academia, Copyright, Education, Open education, Open formats, Publishing
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The next panel is on Innovation, Creativity and Access to Knowledge.

First is Anne-Catherine Lorrain of Trans Atlantic Consumer Dialogue.

Interoperability should be a public principle.
ISP liability: Pressure for filtering solutions (consumer surveillance).
Government procurement should require open standards.

Richard Wilder of Microsoft.

(I’m not speaking on behalf of Microsoft.) IP online is important; we need more enforcement. This is key to our continued R&D.
Open source is an important part of the software sector. Our goal is to work together.
We need to be clear about the role of government involvement in standards-setting.
We recognize the role of IP in collaboration and competition online.
We’re interested in patent quality.

Bruce Perens:

Learning is a human right. There are threats under the heading of both “IP” and “security” to learning.
Innovation in different areas has different models. But we have the same IP law. So in software we created open source.
Government’s function is to create a level playing field for competition. IP is the main barrier to interoperability.
Governments should make sure that file formats and communication protocols are freely available.

Nicole Allen of the Student PIRGs:

The Internet provides the opportunity to access learning materials. It also creates the need for industries to change business models.
Textbook prices have risen significantly and pose a significant burden to students.
We need policies that increase the supply and demand of low-cost textbooks and help new companies enter the market.
If textbooks take the lead in changing their business model, other industries will follow suit.

What should government do?

Wilder: PLoS is an example of new business models made possible by the Internet. But there has to be a business plan that makes it [financially] sustainable. At PLoS, authors pay a fee to publish, which can be internalized in research funding. In software, several business models are possible, from providing services, advertising, sale and licensing, new models from software-as-a-service. IP has a role in each model.
Perens: I don’t think it’s true in the case of scientific and technical journals today. It used to be true. We used to need the publisher for printing and distribution. There doesn’t have to be a business plan: the important players, the journals, have never been paid. They do it for the prestige, which is an economic motive, but it’s not direct remuneration. PLoS, by the way, isn’t the only such publisher. In a number of fields, we can cast aside IP because it’s no longer relevant. Apache is the most popular Web browser of the world, none of which has direct remuneration to develop Apache. They need Apache as infrastructure. There are two types of IP. One grants a substantial business differentiation, e.g. Amazon’s recommendation system — if Amazon let others use that system, they’d lose their business differentiation. But Amazon uses Linux and funds it as a cost center.
Lorrain: The discussion on IP has been frozen, so we’re trapped talking about enforcement. Hugenholtz said we need to increase the consumer’s power in Europe. The Paris Accord, a TACD project, is about finding alternative means of remuneration for creative communities while facilitating broader access. Our goal is to build an A2K movement at the Europe.
Allen: Business models are important, whether compensation comes from money or prestige. We need more government involvement in stimulating innovation in business models. [Marc Rotenberg: So we should spend on broadband infrastructure?] I don’t think it addresses the concern. Industry needs to evolve. We need to ensure access to affordable education.
Wilder: I’m concerned about government intervention in standard-setting, government procurement policies using standards favoring one business model or another.
Lorrain: Interoperability and standards are important for consumers but they must be adopted transparently.
Perens: We need standards for standards — Danish have the best. We need transparent, open, equitable development of standards; and standards must be available to all and royalty-free. On education, formal education is not the only or best way that people learn. We’ve gotten rid of the means of private hands-on education in the name of law enforcement.

Questions:
Phillipe Aigrain: These recommendations are somewhat small. (1) We need a government that acts as a trustee for the information commons and should consider new regulation in light of its impact on the commons. (2) We need to recognize activities that occur outside markets. The IP economy is the bubble that has not exploded yet. We need a positive synergy between the economy and non-market activities.
Perens: We don’t make policy democratically, but rather by treaty.

Q: Deep packet inspection — copyright owners like this. How do we prevent copyright infringement online?
Q: (1) Interconnection directive in Europe — could we have an interoperability directive? (2) Are there open source models for textbook development?
Q: We need to keep all media of delivery in consideration. Books are expensive. We need ways to promote open source without a brand.
Q: Is government action necessary in these areas? Regulation is not necessary the answer to everything.
Q: Microsoft dominates the industry in Egypt. Is open source relevant to developing countries?

Allen: Open source knowledge and educational content exist. In the U.S., books need to be marketable to professors. Open textbooks have to replicate traditional textbooks. DRM is a big issue with textbooks. Publishers sell digitized versions of books, but it’s a subscription, so it expires. They’ll face piracy. The market is powerful, and using market forces as much as possible is important, but when there’s a market malfunction there’s a role for government to play — such as the textbook market.

Perens: The answer isn’t greater regulation, but existing regulation that is bad, such as the DMCA. It doesn’t work for music. The rhetoric of defending small businesses doesn’t hold up — small businesses can’t actually enforce patents against big business. Instead big businesses can use their IP to preclude disruptive technologies. Does open source have a role in developing countries — OLPC has been killed by big companies, Intel and Microsoft. I published open books with Prentice Hall, and people are using them in Egypt. Egypt should defend the right to learn internationally.

Wilder: We want to see access to technology. The right to learn sets up a conflict, similar to debates about the right to health — really infrastructure is the issue. On deep packet inspection, IP protection is important, but government should let business models evolve naturally.

Lorrain: (1) Governments should promote procurement of devices complying with open standards.
(2) Governments should develop alternative reward systems to compensate artists without requiring consumer surveillance.
(3) Governments should support robust work program on E&Ls at WIPO, including access for the blind, distance education, and others.

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Liveblog: TACD IP: IPR enforcement

Posted on 13 January 2009
Filed under Copyright
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The next panel is on IPR enforcement. First is Susan Sell of George Washington University.

Forum shifting/institution shifting.
Enforcement agenda. ACTA — fear obfuscating details of policy making. Opaque negotiations.
Customs and INTERPOL not trained to adjudicate complex legal issues. Can they judge fair use?
Recommendations:
- Moratorium. No enforcement detail until definitions are sorted out.
- Evidence-based policymaking.
- Reform the PTO.
- Campaign finance reform (cf. Lessig). Cooling-off period from USTR to working in private sector.
- Enforcement is not just about property rights — also about enforcing fair use, privacy, competition policy, etc.

Next is Christophe Geiger of the Centre d’Etudes Internationales de la Propriété Intellectuelle.

Draft French enforcement bill (passed Sénat — not discussed in the Assemblée nationale). Even if passed, likely unconstitutional and violates European and international standards on human rights (e.g. right to fair trial, privacy, proportionality)
Alternative: graduated response (cf. parking ticket)
Good signs: progress on E&Ls in Europe, WIPO

Next is Paul Levy of Public Citizen.

Problems of DMCA take-down procedure. OSPs have safe harbor if they comply with the requirements: take action against repeat infringers and take down sword allegations of infringement (with counter-notification).
This isn’t so good for consumers who are engaging in fair use, e.g. criticism of copyright materials.
ex: Both Obama and McCain received YouTube takedowns for videos with short excerpts of news. McCain complained about 10-day length of takedown. McCain asked for carve-out for political campaigns — hand review for postings by political campaigns.
ProgressIllinois posted short excerpts of news; Fox objected. Fox said they should link to full segments instead (but not all videos were available on Fox site). 3 videos had been taken down — YouTube treated as repeat infringer, took down all its videos. Fox said it’d drop its complaints if they wouldn’t do it in the future (waive the right to fair use).
Recommendation: No assumption that a complaint of infringement is valid; wait for take-down only if no counter-notice received within reasonable period of time.
Recommendation: Allow the suit for a wrongful takedown to proceed without proof that takedown was willfully wrong. Statutory damages.
Recommendation: Public notice of takedown [cf. Chilling Effects]

Next is Eddan Katz of EFF.

History of ACTA: STOP!, EU-US strategy on enforcement, US IP czar predecessor in Commerce Dept.
ACTA is important and we need to stop it
In addition to forum-shifting, there’s meme-shifting. The treaty is named “counterfeiting”, but it’s about “piracy”. Need to disentangle them.
Must address secrecy about ACTA. Opportunity with change of administration.
Plurilateral agreement — doesn’t require consent of Congress. [Really?]
Contents of ACTA: not sure — text not public. Three pillars: international cooperation, legal framework. Separate meeting on Internet issues.
“Information customs”. Customs officers not known for nuance and sensitivity.
Under WCO, was body for IP — abolished — expect something to replace it.
Concern about ex officio authority given to customs officials.
Recommendation: Electronic Device Privacy Act, meant to address border searches of laptops & etc. should be reintroduced and promoted.
Criminal provisions of ACTA a significant concern. Willful non-commercial infringement.
DMCA-like provisions may be under discussion (anticircumvention).
This is a way to exclude the [WIPO] Development Agenda
Recommendation: Need public access to the substantive language. New U.S. IP czar must work with consumers. Should pass anti-laptop search act. Should consider future economic concerns — think more about what drives innovation.

Questions:
[I asked a question and so was away from my computer.]
My question was on ACTA and the seeming contradiction with the EU’s move to create a fifth freedom for the free movement of knowledge within the internal market. But nobody answered it.

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