What we learned about copyright policy at the Fordham Conference

2/2016 4.5.2016
(Photo: http://fordhamipconference.com/conference-2015/)
With almost four hundred participants and around a hundred invited speakers and panellists, the Fordham IP conference is one of the biggest conferences in the field of intellectual property law. I will highlight some of the debates that took place with respect to copyright policy, an area of law that is perpetually under construction.

On 31 March and 1 April 2016 Fordham University School of Law organized the 24th annual Fordham Intellectual Property Law and Policy Conference in New York City, under the banner ‘Learn, Debate, Have Fun’. With almost four hundred participants and around a hundred invited speakers and panellists, the Fordham IP conference is one of the biggest conferences in the field of intellectual property law in the world, if not the biggest. Among the speakers were academics, judges, policymakers, attorneys, industry representatives and lobbyists. The panels addressed a wide variety of topics, from patent law (e.g. second medical use and  the UPC), copyright law (e.g. music licensing and fair use) and trademark law (e.g. disparaging marks and EU trademark reform), to international treaty developments (including the TPP and TTIP), trade secrets and competition law issues.

In this short contribution I will highlight some of the debates that took place with respect to copyright policy, an area of law that is perpetually under construction. In the European Union copyright reform has been on the agenda of the new Commission from the outset and also in the United States copyright reform remains a hot topic. Speaking at Fordham were government representatives from both sides of the Atlantic, providing insight into recent developments.

Copyright Policy Making in EU

After a short introduction by conference host Professor Hugh Hansen of Fordham University the conference started with a short presentation about EU copyright policy by Maria Martin-Prat (Head of Unit – Copyright, DG Connect, European Commission). She started by stating that most questions raised during the digital era are still on the table and gave a Commission perspective on the (near) future of copyright. Interestingly, she indicated the Commission will in principle stick to approximation of laws of the EU member states through the adoption of directives. She did not see a big place for regulations, except in case of isolated subject-matter. It became clear during her presentation that copyright policy at the EU level is still being developed with a strong focus on the functioning of the internal market. Martin-Prat asked for instance the (seemingly) rhetorical question whether it is always justified that rights are exercised in a territorial manner.

This scepticism of territorial exercise has led the new Commission to tackle the thorny issue of ‘cross-border portability of online content services’. More remarkably, Martin-Prat indicated that the Commission does not deem it necessary to fully harmonize copyright exceptions. She argued that harmonization is necessary only for those exceptions that have cross-border effects. Other exceptions should be left to the discretion of the member states. By extension, this implies that full harmonization of copyright in Europe by introducing a pan-European copyright title, which has been advocated by European copyright scholars in the recent past, may be far away. This seems to contradict the recent commitment by the Commission to a unitary title as a ‘long-term target’.

A constant throughout the conference was a critical questioning of speakers by Professor Hugh Hansen. After Martin-Prat’s presentation he criticized copyright policy making in the EU, describing it as a ‘madhouse’. Martin-Prat was adamant that those issues that need it, get the attention they deserve. If reform is not occurring, it may mean it is not necessary, she pointed out. Her position was supported by Shira Perlmutter (Chief Policy Officer and Director for International Affairs, United States Patent and Trademark Office), who made the point that legislative success should not necessarily be measured exclusively by the output of new laws or treaties. She noted that there are also other kinds of success, such as bringing stakeholders together and facilitating market solutions.

Future of copyright in the United States

Perlmutter herself gave an overview of the recommendations of the US Department of Commerce in respect of copyright policy in its recent White Paper. The Paper focuses on three issues: remixes, exhaustion in the digital environment, and statutory damages. Concerning the first two, the White Paper suggests no change in the law. First, as regards remixes, the government should support the development of stakeholder-negotiated guidelines as to the application of fair use, more education of the public about what is allowed under fair use and development of licensing alternatives for uses where fair use does not apply. Second, exhaustion should not be extended to the digital environment, mainly because risks to right holders’ primary markets still exist. Nevertheless, since the market for e-lending by libraries is still developing, it should be followed closely to determine whether further action is needed. Finally, the White Paper does recommend legislative action with regard to statutory damages. Perhaps most interesting, it suggests incorporating a list of factors into the Copyright Act to help courts and juries determine the amount of a statutory damages award.

Maria Pallante (Register of Copyrights, US Copyright Office) gave some further brief remarks on the future of copyright in the US. In 2013 she advised Congress to step away from piecemeal copyright legislation. Since then, Congress has held over 20 hearings on copyright reform. Suggestions by Pallante included one for a copyright tribunal for voluntary dispute resolution of small claims. She also recommended that Congress should not intervene in the making available right or the fair use provision. As regards the latter, Pallante has suggested in the past that further guidance for the public and for courts could be useful. This has led to the collection of around 350 cases on fair use, which have been made available to inform the public about the scope of fair use.

During one of the last panels, on the subject of fair use, Professor Justin Hughes (Loyola Law School) put forward an interesting idea about the compliance of fair use with the three-step test. This is an issue that has been hotly debated for well-over two decades, in particular since the inclusion of the test in the TRIPS Agreement.[3] Hughes suggested that the fair use provision itself should not be considered the exception for the purpose of the three-step test. Rather, it is a mechanism that permits courts to establish specific exceptions. It is these specific judge-made doctrines that should be subject to the three-step test.

Unfortunately, the space available here allows only for a very limited overview of the great number of interesting topics that were discussed. The two-day conference, which really ought to be experienced first-hand, can perhaps best be summarized as follows: we learned, debated, had fun, as its motto commanded us!

Daniël Jongsma
PhD candidate
Hanken School of Economics

The annual IP Conference is always held the Thursday and Friday following Easter.On April 20 and April 21, 2017, the 25th Annual Fordham Intellectual Property Law and Policy Conference will take place at Fordham University School of Law in New York City.

Aiheet: Muut, Tekijänoikeus
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