Wednesday, July 23, 2008

The Declaration on the Three-Step test

On April 2d, I did a post on the counter-reformation against amendments to copyright laws in the public interest. It is, apparently, not enough for some copyright holders that their rights have ballooned to unprecedented size and strength: they also have to fight back any efforts to ameliorate the harsh consequences on the public from the expansion of those rights. One political argument advanced in the push-back against the public is what I call the Neo-Blackstone movement: copyright is property, and property represents “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Blackstone’s ode here (in his Commentaries) to property was never descriptive, not even of then-contemporary English law; it was in fact merely a political wish. Professor Robert Gordon, in a study of the actual state of the law in Blackstone’s time, wrote:

What strikes the backward-looking observer
as curious is simply this: that in the midst of
such a lush flowering of absolute dominion talk
in theoretical and political discourse,
English legal doctrines should contain so
very few plausible instances of absolute
individual rights. Moreover, it is curious that
English and colonial social practices contained so
many property relations that seem to traduce the
ideal of absolute individual rights.
Robert Gordon, “Paradoxical Property,” reproduced in Early Modern Conceptions of Property 95, 97 (John Brewer and Susan Staves editors 2996, Rutledge).

And as much as Blackstone pushed the view of copyright as a natural property as a lawyer for the London publishers in the great “Battle of the Bookseller,” when he later became a judge, he did not adhere to the view of copyright as vesting its owner with the sole and despostic dominion he earlier advanced in his Commentaries. Wonderful evidence of this is provided in a report of the 1774 decision in Hawkesworth v. Newbery, which held that abridgments (we would call them condensations today), might not violate copyright owners’ rights:

The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author's property whereon to ground an injunction.

That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in a carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work.

That this had been done by Mr. Newbery, whose edition might be read in a fourth of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That [the Lord Chancellor] had consulted Mr. Justice Blackstone whose knowledge and skill in the profession was universally known, and who as an author had done honour to his country.

That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr. Newberry's falls within these reasons and descriptions.

Judgment for defendant abridger. Fair abridgments were permitted in the United States until passage of the 1909 Act. So much for the sole and despostic view. But one even sees expressions of the view that the natural state of affairs in copyright is sole and despotic dominion in how to interpret the Berne Convention's three-step test. Professor Sam Ricketson, the god of Berne Convention scholars and an all around great guy, wrote in a 2003 study of rights and limitations in the Berne Convention statements that limitations and exceptions will be allowed if “there is a public interest … that justifies overriding the private rights of authors in their works in … particular circumstances.” Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright Related Rights in the Digital Environment 4, Standing Committee on Copyright and Related Rights, Ninth Session, Geneva, June 23 to June 27, 2003, SCCR/9/7 (April 5, 2003).

I don’t accept the private -- public dichotomy advanced here: there is, after all, no such thing as copyright rights privately created and privately enforced. Copyright is created by governments for public reasons and is enforced by public laws and public judges. Copyright laws are created as an entire fabric consisting of certain entitlements given to copyright owners, and certain entitlements given to the public. There is no basis to regard any one entitlement as more privileged or important than another. That leads me to an exciting new declaration on the three-step test recently issued by three very prominent European scholars: Reto. M. Hilty, who is the Director of the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, and a Professor at the Universities of Zurich and Munich, Germany; Christophe Geiger, a Researcher, at Max Planck Institute and Associate Professor and Director, Centre for International Industrial Property Studies (CEIPI), University of Strasbourg, France; and Jonathan Griffiths, Senior Lecturer, School of Law, Queen Mary, University of London.

The declaration is available here, at the Max Planck website, and is entitled “A Balanced Interpretation of the ‘Three-Step Test’ in Copyright Law. The word balanced is accurate for all but the most partisan of combatants in the Copyright Wars. The declaration states, for example: “Copyright law aims to benefit the public interest. It produces important incentives for the creation and dissemination of new works of authorship to the general public. These works serve to satisfy common needs; either in their own right or as a basis for the creation of further works.” The declaration also does not interpret the three-step test as a free for all, noting: “The Three-Step Test has already established an effective means of preventing the excessive application of limitations and exceptions.” No bomb throwers in this group. The declaration adds, though: “The public interest is not well served if copyright law neglects the more general interests of individuals and groups in society when establishing incentives for rightholders.”

This balanced view is continued in how to interpret the three-step test. The dominant way of interpreting it – advanced by copyright owners and natural rights copyright lawyers – is as an obstacle course: national governments interested in amendments to serve the public interest have to surmount all three steps, and the burden is really heavy at each step. In place of this absurd approach, the declaration states in reaction to a finding that “in applying the Three-Step Test, national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test”:

1. The Three-Step test constitutes an indivisible entirety. The three steps are to be considered together and as a whole in a comprehensive overall assessment.
2. The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes.
3. The Three-Step Test’s restrictions of limitations and exceptions to exclusive rights to certain special cases does not prevent legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable …

The last statement refers of course to fair use and should be a helpful rebuke to the whispering campaign being conducted in certain national capitals against the adoption of more liberal fair dealing laws. I regard the declaration as a watershed event: a statement by the crème de la crème of European scholarship that the counter-reformation is exactly that.


Anonymous said...


I have some observations that at some point lead to a question that has more to do with mental models that may be at work than legislation, but I hope you can lend some perspective.

It is my understanding that part of the current U.S. copyright regime's restrictiveness has its roots in a mid-1980s thought among Congress members that intellectual property was one area in which America could remain –- and needed to remain -- "competitive" economically on a global level. In order for the U.S. to leverage that "competitive" advantage on the world stage, though, the country had to protect its copyright-producing industries (i.e. film, software) abroad.

Arguably, the move toward stronger copyright protection, the linkage between domestic economic welfare and U.S. “global competitiveness," and the Clintonesque comparison of countries competing in the marketplace like corporations, have been strong sociopolitical factors that have led to TRIPS and passage of other control- and protection-based legislation in the U.S. (i.e. DMCA, CTEA)

(The economist Paul Krugman analyzed why he thinks the “competitiveness” argument fails back in 1994, so people can view that analysis on their own.)

However one considers the attempts in the 1980s to tighten copyright law, the prevailing –- and perhaps even reasonable –- attitude was “If we don't get this legislation, our industry is in trouble. And the way the economy is going [with the not-so-subtle reference to Japan], America needs to do whatever it can to protect its lucrative industries.”

(And let's conveniently forget that asking the government for an industry-saving monopoly extension runs counter to the free-market said industries typically espouse.)

So now you are reporting attempts to wrench copyright law even more tightly, under the guise of things like "inalienable rights" and roundabout challenges to the Berne Convention's three-step test. Like in the 1980s, these moves come during a time of economic crisis, amidst rather serious and daunting questions about the current stability of the American economy and whether it is too large to allow other countries to let it fail.

(The subtext, of course, is that the American economy is in such poor condition right now that it no longer is ludicrous to consider it cratering through the floor, no matter how fanciful that situation once seemed.)

It's like deja vu all over again.

My question is this: Are American policy makers really serious about stricter copyright because they sincerely believe –- like in the 1980s –- that they need such legislation to protect certain industries that will maintain the viability of the American economy? (And without such industrial viability, economic cratering is coming soon to a theater near you?) Or is this just another greedy copyright grab? Or does the truth lie somewhere in between? And to what extent does one shade this toward the "true believer" side versus the "we're doing this to continue to pay for our Hamptons estate" side?

Finally, how fundamentally different is this as compared to the mid-1980s?

(I know that was more than 1 question: please feel free to choose any you consider meritorious enough to answer.)

Honestly, I am (and hopefully others are) trying to get some inside, knowledgeable perspective here because for all I have written about the evils of the “piracy” frame (and the deeper I study framing and agenda setting as political and communications phenomena), it has occurred to me that the frame's proponents may be doing so not to be evil or greedy, but because they truly believe this is necessary for economic survival. And if that is the case ... well, to paraphrase a SportsCenter anchor: “You cannot stop it, you can only hope to contain it.” To me, this possibility is scarier than greed-driven, disingenuous "piracy" spin.

Anonymous said...

Terrific post, Bill.

The EU members have such a long history of collective licensing of copyright works through quasi or direct government control. That licensing throws off substantial "contributions" to state-run parochial cultural organizations that are for the benefit of the public. We don't do that here in the United States, of course. So while the Three Step Test seeks to place scrutiny on exceptions and limitations, there is this whole other tier of activity acting to create direct public value from the commercial exploitation of copyrighted works.

William Patry said...

Kevin, thanks for your very lengthy comment. The tying of trade to IP came gradually, as you point out gradually in the early 1980s, when our balance of payments was seriously out of whack. The first tie was modest, the Caribbean Basin Economic Initiative, in which we conditioned favorable tariff treatment on CBI countries providing adequate and effective protection to U.S. works. From there it grew, and then morphed into the 301 and special 301 provisions.

Then alas, we come to the disasters of the Clinton era: GATT and the DMCA, the latter being part of Gore's "Reinventing Government" initiative.

I regard the current neo-Blackstone movement as simply a continuation of those successes: if you can get more, you keep asking for more. But as you infer with your reference to framing, usually there must be ever new foes to vanquish, that justify the need for heightened protection. There are exceptions: term extension was pushed as parity with Europe, but on the whole moral panics and folk devils are conjured up as justifying the need for increased rights. Did Jack Valenti really believe that the VCR was to the movie picture industry what the Boston Strangler was to a woman home alone? Did Jay Berman really believe that DAT was the biggest threat ever to the music business? I don't think so. I think that moral panics and folk devils are deliberate rhetoric constructs used to mask economic grabs.