'Tales of the Unintended in Copyright Law' by Peter K. Yu in (2014)
Studies in Law, Politics, and Society comments
Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures.
While undertaking cost-benefit analyses is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the existing entertainment industries. A better and deeper understanding of the "disconnect" between law and its intended consequences is therefore in order.
To help us grasp the complex reasons behind the unintended consequences of copyright law, and the role legal scholars could play in alleviating these consequences, this Article retells three "tales of the unintended." All of them concern the 1976 Copyright Act, the present U.S. copyright statute. The first tale focuses on fair use, the second on statutory damages, and the third on formalities. From these three tales, the Article draws five different morals that provide insights into the ongoing process of copyright reform. These insights will enable policymakers and commentators to rethink the ongoing and future development of copyright law.
'The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies' by Joost Poort and João Pedro Quintais in (2013) 4(3)
JIPITEC offers
a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr. Vitorino and AG Sharpston (in the Opinion preceding VG Wort v Kyocera) use different lines of reasoning to argue that levies raised on authorized copies would lead to double payment, the Court of Justice’s decision in VG Wort v Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is however an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.
