The article deals with the comparison of key terminology in the field of copyright in the Polish, English, Japanese and German languages. The research material consists of copyright acts binding in Poland, Great Britain, the United States of America, Japan and Germany. The terminology has been compared in order to reveal similarities and differences in the meaning. Firstly, statutory terms from the Polish, English, German and Japanese acts will be presented and discussed. Also, a list of functional equivalents (...) will be presented. The task was to search for functional equivalents, and if there is partial equivalence or no equivalence, an equivalent was provided according to techniques of providing equivalents for non-equivalent terms. They were made in such a way that equivalents will correspond with the reality of the laws in the above mentioned languages. The terms have been extracted with the usage of AntConc. The method of analysis of comparable texts has been applied as well as the one based on three categories of equivalence by Šarčević : “near equivalence”, “partial equivalence” and “non-equivalence”. Special attention has been paid to system-bound terminology existing in those five legal systems. To sum up, it should be borne in mind that the copyright law has been unified almost world-wide. As a result many countries have adopted similar or almost identical principles in this respect. Therefore, there is a significant convergence of meanings of analysed copyright terms with only slight differences resulting from deeply ingrained local and national legal traditions. (shrink)

This revised version of the author’s 1985 article “Contra Copyright” includes a new, introductory section explaining the background of the author’s path to copyright abolitionism. The main article surveys various libertarian debates on this issue, including the anti-intellectual property views of Benjamin Tucker and the pro-IP views of Lysander Spooner. McElroy argues that the issue of copyright hinges on the question: can ideas be property? Because only scarce goods can be property, and ideas are not scarce, (...) class='Hi'>copyright must be rejected as unjustified. (shrink)

Is copyright a property right? Common law and civil law jurists have debated that issue for over three centuries. It remains at the heart of battles over copyright’s scope and duration today, even if its import lies principally in the rhetorical force of labeling a right as "property," not in any doctrinal consequence flowing directly from that label. In parallel to their common law and civil law counterparts, presentday rabbinic jurists engage in lively debate about whether Jewish law (...) recognizes copyright as a property right. And, as in secular law but for different reasons, that issue has significant repercussions in Jewish law. As discussed in rabbinic court decisions and writings, whether Jewish law accords authors a right of ownership in their works impacts such issues as whether it is permissible, without license from the author or publisher, to copy and distribute software and sound recordings, perform music in wedding halls, make copies for private and classroom use, and download songs from the Internet. There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish and secular law. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular copyright law. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate in Jewish law about whether copyright is property. (shrink)

Copyright is accepted as being the necessary and efficient response to the need of authors and publishers to appropriate the economic value of copyright works from users. Nevertheless, difficulties arise when such works are both produced and consumed within universities. The law recognizes that copyright cannot be an absolute right and in certain circumstances, the scope of copyright protection is limited by the statute. Where educational usage of works is concerned, the British copyright law has (...) attempted to balance the rights of the individual academic user, the duties of universities and their libraries, and the rights of the copyright owners. However, recent case-law suggests that the correct balance between the interests of copyright owners on the one hand, and the interests of education and scholarship on the other has not been achieved especially where the educator and the copyright author reside in a single individual. The article employs stakeholder analysis to discern whether there should be a re-evaluation of the law so that copyright law and policy better reflect the interests of key participants within the educational sector. (shrink)

The most widely accepted explanation of why we need copyright is that it provides authors with the necessary economic incentive to create. This incentive story has largely gone unchallenged, and has been used to justify lengthening and strengthening the legal protections for expressive works. This Article points out, however, that the empirical foundation for the copyright-as-incentive story is seriously suspect. It fails to account for the economic conditions under which most art, literature and other expressive works are produced, (...) and it contravenes the insights provided over the last forty years or so by psychologists interested in creativity and by behavioral economists. Empirical research has shown that intrinsic factors are much more important determinants of participation in creative work than such extrinsic ones as monetary reward. In fact, evidence exists that the promise of extrinsic rewards such as money can actually be detrimental to the creative impulse. This is not to say that concern with economic rewards should play no role in a legal regime designed to encourage the creative process. But, at a minimum, this Article suggests both that copyright scholars need to develop a far more nuanced understanding of why people produce what they do, and that a satisfactory legal regime to promote intellectual property creation and dissemination can afford to be far less concerned than it presently is with ensuring that authors and copyright owners can extract every bit of available profit from their works. (shrink)

This Article calls into question the primary meaning of copyright law. It argues that copyright is not primarily a legal instrument, but rather a fundamental mode of human existence. The starting point of the analysis is Kant’s definition of a book as a "public address" and of author’s rights as ultimately being grounded in the furtherance and maintenance of truth. Building on Kant’s argument, the Article defines the copyright primary subject matter as the act of speaking publicly (...) in one’s own name, and the copyright sphere as the author-public coalescence that such act of speaking generates. This enables reaching a proper understanding of the scope of copyright and to characterizing its specificity as compared to its "fellow rights," patents and trademarks. (shrink)

In this article, the categories of literary, dramatic, musical and artistic (LDMA) works in which copyright subsists are considered, and an argument made that the legislature’s division of protected works into categories is appropriate given the psychology of art appreciation, and the fact that in order to perceive a work qua work one must perceive it in relation to a category of work. Nonetheless, an argument is also made that the statutory definitions of LDMA works suffer from the defects (...) of formalist theory. Those defects are outlined, and an alternative theory of works proposed, drawing on the scholarship of art theorist Kendall Walton and the intentional, historical view of the work developed in a recent publication (J Pila, ‘An Intentional View of the Copyright Work’ (2008) 71 MLR 535–58). According to that theory, LDMA works are constituted in part by their properties of form and in part by the history of their individual production. Consistent with this, the statutory categories of work are cast as denoting authorial traditions: evolving practices of LDMA expression that exist and are experienced in a particular social context. In addition to its general explanatory and normative value for copyright, this theory has specific implications for the legislature’s expression of the categories of works in which copyright subsists. (shrink)

Determining the copyright status of a literary work is not always straightforward, because copyrights are territorial and the relevant laws differ significantly country by country. In some legislations, for example, a work’s copyright status may depend on the publication date, on whether the publication was posthumous, on the quantity and quality of editorial interventions the manuscript underwent before publication, etc. 2021 marked the 70th anniversary of Wittgenstein’s death. In many countries, the duration of the copyright term is (...) the author’s life plus 70 years. Thus, as of the moment of this writing, it is important to attempt a comprehensive analysis and to try to determine whether, where and why his manuscripts and his published works are in the public domain. This paper clarifies the general principles of copyright and describes the rules and best practices that must be followed in the context of internet publications. Additionally, it examines the factors that make it particularly challenging to ascertain the copyright status both of Wittgenstein’s published works and of the transcriptions of his manuscripts. Lastly, it provides a detailed account of the copyright status of some of Wittgenstein’s works that were published in the second half of the 20th century, proving that they are in the public domain in most countries. (shrink)

Two property regimes for software development may be distinguished. Within corporations, on the one hand, a Private Regime obtains which excludes all outsiders from access to a firm's software assets. It is shown how the protective instruments of secrecy and both copyright and patent have been strengthened considerably during the last two decades. On the other, a Public Regime among hackers may be distinguished, initiated by individuals, organizations or firms, in which source code is freely exchanged. It is argued (...) that copyright is put to novel use here: claiming their rights, authors write `open source licenses' that allow public usage of the code, while at the same time regulating the inclusion of users. A `regulated commons' is created. The analysis focuses successively on the most important open source licenses to emerge, the problem of possible incompatibility between them (especially as far as the dominant General Public License is concerned), and the fragmentation into several user communities that may result. (shrink)

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection (...) of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture. (shrink)

In recent years, copyright governance for short videos has become a hot issue of common concern in the academic community and the industry. Therefore, this study intends to explore the economic aspect of copyright governance in relation to the proliferation of infringing short videos. The short video industry of China has been taken as a case to demonstrate the copyright governance issue. Transaction cost theory has been applied to analyze the economic aspect of copyright governance in (...) terms of four dimensions: bounded rationality, opportunism, environmental uncertainty, and asset specificity. From the perspective of transaction cost economics, the problem of short video infringement is observed to be essentially a market failure due to high transaction costs. In the short video market, substantial transaction costs are incurred in the legal transaction of copyright with these costs considered to be too high. This is especially the case when transaction costs exceed the net proceeds initially expected by short video users from the authorization, making it impossible to carry out the transaction and leading to infringement. To effectively control the copyright infringement of short videos, it is necessary to build a cross-platform information-sharing mechanism to reduce search costs, establish a unified copyright management platform to reduce coordination costs, and give full attention to the role of technical support to reduce regulatory costs. (shrink)

This paper attempts a theoretical discussion of effects on the legal regime of copyright induced by the change from material to digital media. Specifically, a fundamental question remains unanswered: what is the relationship between an object and a copy? A conceptually clear answer to this question has been unnecessary because it has always been possible to provide an ad hoc answer through visual inspection of an object. Authorized mechanical reproductions – authorized copies – look similar to one another, and (...) unauthorized reproductions bear tangible evidence of degradation. Digital reproduction, however, makes such visual inspection impossible, as both authorized and unauthorized digital reproductions look the same. At that moment, one “would expect” that copyright protects the essence of the object, independently of how it looks. Indeed, this is precisely what copyright jurisprudence, which emphasizes originality, tries to do. However, absent the baseline of visual intelligibility, there is no criterion for knowing which object legitimately embodies its eidos and which does not. The effects of this absence stand behind many of the battles surrounding digital reproduction. In section 2, I discuss more precisely how digital reproduction undermines the original/copy distinction. In section 3, I show how the effects of this are manifest in contemporary debates. Section 4 attempts a more theoretical discussion, organized around Deleuze's discussion of Platonism (and the degree to which, for Deleuze, the Platonic original/copy distinction functions to enable the police work of good copy/bad copy). The essay concludes with some thoughts about future developments in copyright and the suggestion that the move to digital rights management technologies are appropriately seen as a response to these conceptual limitations in copyright. (shrink)

In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights is, to an (...) important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law. (shrink)

The problems and the keys to their solutions -- Ontology of artworks -- Copyright and its limits -- Token appropriation -- Pattern appropriation -- Appropriation of artistic elements.

The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests to strengthen claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ everexpanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a (...) social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this period, activists promoted the idea of the public — and not simply the author — as primary to the workings of American copyright. The framing of the purposes of copyright, the appeal to a broader public, and the complex negotiations surrounding the passage of an international copyright act after a long period of gestation was formative to the creation of modern United States copyright law. Ironically, the movement for international copyright also sharpened the identification of interest groups. The first modern American comprehensive copyright legislation, the 1909 Copyright Act, was drafted by gathering together these groups for negotiations remarkably similar in style to those which led to the protection of the rights of foreign authors — but which would strongly embrace a proprietary model. (shrink)

The prevalence of social production and the increase in User Generated Content destabilize some of the fundamental premises of our current copyright law. Copyright law is primarily designed to regulate the relationships of a single owner with other non-owners and is focused on the sovereignty of the author/owner. Social production, by contrast, requires us to articulate a matrix of relationships between the individual, the facilitating platform and the communities and crowds involved in social production. The transition from industrial (...) production to social production transforms the social relations associated with the production of content and therefore requires adjustment of the institutions that design such relations. This Article closely examines the social dimension of content production and analyzes the consequences for the governance of content in the social web. The Article proceeds as follows: Part I describes social production and analyzes the implications for the stakeholders involved. I focus on three key features of social production which affect why we create, how we create, and what assets are generated by the process of creation. Part II explains why social production might be incompatible with the current copyright regime. In particular, I argue that copyright law mainly defines rights against strangers and fails to provide a framework for managing the rights and interests within a gigantic group of collaborators. Furthermore, the exclusivity offered by copyright law may undermine social motivation and collaborative production. Finally, in Part III, I outline some of the challenges for legal policy. (shrink)

This article is a limited defense of copyrights for the contents of factual compilations. The form of protection that I propose, under which the collective factual content of such compilations is protected, differs from an approach that protects individual facts and from the currently accepted approach (as articulated in Feist v. Rural Telephone), under which only selections and arrangements of individual facts are protected. Although I accept that there are sound economic justifications for refusing to copyright individual facts, my (...) justifications differ from those that have traditionally been offered. The traditional justifications are: 1) that the monopolization costs of protecting individual facts are too great, because facts are too valuable as components for future works to have access to them limited by property rights, and 2) that facts fail the independent creation requirement for copyright protection, because they are not authored by anyone. Both of these justifications fail. Monopolization costs can at most justify limited terms for copyrights in facts. And, far from failing the independent creation requirement, facts (properly understood as representations of reality rather than reality itself) are as much works of authorship as novels are. I argue that transaction and enforcement costs are the real reasons that individual facts are not copyrightable. Furthermore, some components of factual works - specifically, ground breaking and explanatorily powerful theories like Einstein's theory of relativity - should be copyrightable if our sole concerns were transaction, enforcement and monopolization costs. Instead such theories are not protectable because any work that borrows them is their complement (in the sense that its production makes them more desirable), provided that the work acknowledges the theories' true provenance. This is because it is only through dissemination in other works that such theories can undergo the test of truth. But nothing about the uncopyrightability of the components of factual works stands in the way of copyrights for the collective factual content conveyed by such works. It might appear that protecting collective content is no different from the Feist approach, in which selections and arrangements of facts alone are protected. After all, collective factual content is created by selecting and arranging individual facts. If individual facts are not protected, then the selections and arrangements, it seems, must be. But this is a fallacy. Protecting a fictional story is not the same as protecting the methods of selection and arrangement used to generate the story from unprotected elements of character, plot, and setting. Likewise, protecting the collective factual content of a database is not the same as the Feist method. The collective content of databases, I argue, should be protected in the same manner that fictional stories are. Such an approach, far diverging from traditional copyright principles, follows from them. (shrink)

This book provides international perspectives on the law of copyright in relation to three core themes - copyright and developing countries; the government and copyright; and technology and the future of copyright. The third theme includes an examination of the extent to which technology will dictate the development of the law, and a re-examination of the role of copyright in fostering innovation and creativity. As a critique, one chapter discusses how certain rights can create or (...) reinforce social inequality under copyright royalty systems. Underlying these themes is the role the law of copyright has in encouraging or impeding human flourishing. (shrink)

Creative influence, be it in the form of subtle inspiration or unequivocal imitation, has impacted the development of artistic styles and schools of thought for millennia. Since the late twentieth century, appropriation artists have drawn attention to these customs by intentionally borrowing or copying from preexisting sources with little or no transformation, despite these practices running into direct conflict with United States copyright law. Indeed, recent decades have witnessed several noteworthy lawsuits involving prominent artists who have challenged the boundaries (...) between copyright infringement and fair use, raising questions regarding the ethical creation and consumption of art. The purpose of this paper is to demonstrate the ethical responsibility to teach students of the visual arts about the purpose, theory, and parameters of copyright law, including its inherent ambiguities and risks, in order to foster moral creative practices. Because of the complex nature of copyright law, the author advocates both traditional instruction on copyright principles and applications as well as the encouragement of personal self-regulation on the part of students with regard to their own professional work. (shrink)

Creative influence, be it in the form of subtle inspiration or unequivocal imitation, has impacted the development of artistic styles and schools of thought for millennia. Since the late twentieth century, appropriation artists have drawn attention to these customs by intentionally borrowing or copying from preexisting sources with little or no transformation, despite these practices running into direct conflict with United States copyright law. Indeed, recent decades have witnessed several noteworthy lawsuits involving prominent artists who have challenged the boundaries (...) between copyright infringement and fair use, raising questions regarding the ethical creation and consumption of art. The purpose of this paper is to demonstrate the ethical responsibility to teach students of the visual arts about the purpose, theory, and parameters of copyright law, including its inherent ambiguities and risks, in order to foster moral creative practices. Because of the complex nature of copyright law, the author advocates both traditional instruction on copyright principles and applications as well as the encouragement of personal self-regulation on the part of students with regard to their own professional work. (shrink)

This study is based on analysis of copyright policies and 26 interviews with science and engineering faculty at three research universities on the topic of copyright beliefs, values, and practices, with emphasis on copyright of instructional materials, courseware, tools, and texts. Given that research universities now emphasize increasing external revenue flows through marketing of intellectual property, we expected copyright to follow the path of patents and lead to institutional emphasis of policies and practices that enhanced universities’ (...) intellectual property portfolios, accompanied by an increase in copyrighting by professors. Although this pattern occurred with regard to institutions, professors offered a more varied pattern, with some fully participating in commercialization of copyright and embracing entrepreneurial values, while others resisted or subverted commercial activity in favor of traditional science and engineering values. (shrink)

Book reviewed in this article: Perspectives on the Unity and Integration of Knowledge Garth Benson, Ronald Glasberg & Bryant Griffith Intercultural Communication: pragmatics, genealogy, deconstruction Robert Young.

Pendant plus de dix ans, chacun dans son coin, Marie-Pierre, Gérôme et Samuel ont consacré leur temps libre à des fanzines sur la musique. Jusqu’à ce qu’en 1998 Samuel se lance dans la publication de travaux de jeunes chercheurs en Lettres et en Sciences humaines et fonde les éditions Mélanie Séteun – anagramme et nom de plume de Samuel Étienne. Nombre de manuscrits qu’il reçoit ne sont pas publiables in extenso. Il songe alors à un livre collectif. L’IRMA, diffuseur des (...) éditions, rectifie l... (shrink)