Book Description

Many of the knowledge-based economy's (KBE) most valuable assets come in the form of information products. It has become the practice to claim copyright protection for virtually every piece of “writing” or its electronic equivalent, from instruction manuals for use of motorized saws to specifications for pipeline tenders. This work posits that the legal doctrine of copyright was never intended and is not equipped to regulate the very building block of our society - information. When used to protect utilitarian information works (UIW) en masse, copyright can impede the flow of information necessary for innovation, foster waste in the form of redundant creation and adversely impact competition in the market. It is desirable to seek to reduce the impact of copyright protection has on UIW. Part I provides a snapshot of present-day copyright law. Copyright protection of creative works, both utilitarian and non-utilitarian, is envisioned as a three layer structure, consisting of: (1) traditional copyright, (2) technological protection measures (TPM), and (3) legal reinforcement of technological protection in the form of anti-circumvention rules. Each of these layers is discussed in turn, in the context of both common law copyright, as illustrated by U.S. law, and civil law author's rights, as illustrated by German law. Part II considers the environment of the knowledge-based economy. This type of economy confronts copyright law with new realities which challenge its traditional paradigm. Challenges include the role of information as the “building block” of the KBE, creation of UIW by way of “sequential collaboration” among knowledge professionals, alternating roles of creator and user/improver, the need for free and easy access to information to fuel ongoing improvement and innovation of UIW, the impact of IP laws on the free flow of information, as well as the market behavior of UIW, likely to produce network effects, standards and lock-ins. All of these challenges are discussed in some detail. Part III examines the areas of copyright law that are relevant to protectability of UIW. The fundamental issue is the clash of values underlying copyright laws with the characteristics of UIW: copyright law encourages diversification through individuality, originality and deviation from the routine, while the functional nature of UIW dictates uniformity and conformity, and renders the individuality of authorial input irrelevant. Conversely, the inherent characteristics of UIW relevant to their wealth-generating ability (i.e. functionality, improvability, collective creation and constraint on expression) are not recognized by copyright law because the requisite tools are lacking. Application to UIW of the limited tools by which copyright law evaluates protectability yields results that unduly restrict the flow of information. Several court decisions involving UIW which illustrate how such results are reached are examined in detail. Part IV considers possible approaches to improving the impact of copyright on UIW. To ensure alternate treatment, whether by copyright law or otherwise, UIW must be capable of being segregated from other work categories. To this end, the specific characteristics of UIW - functionality, constrained expression and incremental improvement - are examined, on the one hand, in terms of their treatment under copyright law, and on the other, in terms of their ability to differentiate UIW from other works. A solution would optimally take into account the interests of all stakeholders, and ideally attenuate the “winner takes all” effect inherent in the exclusive rights approach. With this goal in mind, options such as functionality limitations or exceptions and sui generis protection for UIW are sketched out and discussed. However, recognizing the difficulties inherent in implementing a solution favoring a single stakeholder, the solution proposed here is a court supervised licensing negotiation, wherein copyright law merely serves as leverage. By allocating informational and economic resources based on the parties' self-determined needs and abilities, this solution is likely to overcome the constraining effects of copyright protection and ease the flow of information.