Live Blogging IP Counterfactuals at MSU Law, Installment Two

I’m back . . . and I’ll attempt to live blog the third copyright panel. I got no angry emails, so I’ll assume that I’ve done an innocuous, irrelevant and/or good job . . . and I have thus proven my previous caveat that I will be unable to cover everything!

First presentation: If copyright were really about authors, personal use would be irrelevant and fair use would be integral to copyright, rather than a defense. Originality is derived from source, and copyright can have a “second author”, as opposed to patent (which has no “second inventor”). Inventions are not a mode of discourse with another, but copyright is. Authorship is a mode of communication, and as compared to trademark, a mode of discourse. Fair use is not an exception, but a user right. Copyright is closer to trademark than patent as a mode of communiction.

Archiving digital code: we are urged to archive our digital heritage. It is noted that judges in various countries, like New Zealand, Australia and Canada, like to make analogies to cookery (i.e., recipes for rice pudding) in their analysis of copyright. Object code should be protected sui generis, with 10-15 year terms based upon commercial use and allowing for the archiving of digital culture.

Image enhancements — who is the author of a satellite photo? How is it protected? Interesting consideration is to protect it as a database. A collection of spatial data. Data moves from satellite to receiver — so is it a work only when manipulated at the end (by the processor). If its just data that has not been organized into a copyrightable form, then it is copyrightable? Where is the author? Is creativity in the manipulation of the sattelite, organizing data? If its just data, its not fixed. Copyright gets “lost in space.”

Last presentation: what if employees owned their copyrights? For example, what if authors could terminate ownership of their copyrights by others (i.e., director of film takes back ownership of film that he produced?) We might not see impact on industry, but profits of old works may cover cost of new works, but impact on public access could be more significant.

[Note: this entry is cross-posted at Hearsay Culture].

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