22 October 2013


'Fair Use, Girl Talk, and Digital Sampling: An Empirical Study of Music Sampling's Effect on the Market for Copyrighted Works' by W. Michael Schuster II indicates 
This Article presents an empirical study on the effect that digital sampling has on sales of copyrighted songs and how this effect should influence the fair use analysis. To conduct this research, a group of previously sampled songs had to be identified and sales information for these songs collected. The over 350 songs sampled in musician Gregg Gillis’s (AKA Girl Talk’s) most recent album presents an ideal dataset because the album’s instantaneous popularity allows for its influence to be analyzed through a comparison of the sampled songs’ sales immediately before and after release. Collecting and comparing sales information for these songs found that — to a 92.5% degree of statistical significance — the copyrighted songs sold better in the year after being sampled relative to the year before. To the extent that the Copyright Act instructs courts to analyze (among other considerations) the effect that an alleged fair use has on the potential market for the original work, these findings favor the conclusion that digital sampling is a fair use (though each statutory fair use consideration should still be reviewed).
Additionally, the songs sampled in the subject album were evaluated to ascertain the length of each sample and to what degree each sampled song had experienced prior commercial success. This collected data was used to test the hypothesis that sampled songs which were more recognizable to listeners (e.g., songs that were commercial hits or songs that were sampled for a relatively longer period) would see a greater sales increase after being sampled. The collected data did not find a correlation in post-sampling sales increases and sample length or prior commercial success, but further study may be warranted.
Beyond supporting the premise that digital sampling may constitute fair use, the results of this study raise several notable issues and subjects for future study. One such issue is that courts only address an alleged fair use’s effect on the market for the original as a binary system, wherein the only options are harm to the market (disfavoring fair use) or no harm to the market (favoring fair use). There is no accepted rule on how to treat a market benefit (such as the one evidenced here). The failure to address this issue is questionable because a market benefit actually furthers the utilitarian goal of copyright by incentivizing the creation of new works through economic gain. The current research makes clear the need for precedent on how the fair use analysis should treat actions (e.g., digital sampling) that may increase sales of the original work.
Additionally, this study sets the ground work for an objective financial review of fair use and market effect, which would yield needed predictability and stability to the fair use doctrine (at least, with regard to digital sampling).
'Pluralism, Principles and Proportionality in Intellectual Property' by Justine Pila in (2013) Oxford Journal of Legal Studies offers
a European perspective on the pluralistic, principles-based model of intellectual property (IP) advanced by Robert Merges in his book Justifying Intellectual Property. After introducing Merges’s model and theory of IP with reference to IP theories generally, other pluralistic legal models, and patterns of judicial reasoning in the patent and copyright fields, the article argues that European jurisprudence offers broad support for Merges’s operational model of IP, while also challenging certain aspects of his wider analysis. They include his ‘one size fits all’ foundational theory of IP, his account of key IP rules and practices, and his choice and conception of IP’s midlevel principles. Through this critique the article draws attention to the utilitarian bias of Merges’s model; a bias which undermines its pluralistic claims, in part by undermining Merges’s own foundational theory of IP. The result is to underline the limits of a regime unconcerned with its own normative basis, and the need for more rather than less discussion of IP theory, including more work of the type that Merges’s book undertakes. ...
The idea that intellectual property systems exist for essentially historical and pragmatic reasons alludes to the value of history in understanding the various IP regimes that exist, including the general forms that they take. Broadly speaking, and focusing on its two paradigm systems of patent and copyright law, the historical origins of IP lie in two philosophical traditions aligned with the civil and common law, respectively. While it has become common to downplay the differences between these traditions with a view to emphasizing the nuances of each and the similarities between the civil and common law more generally, they account for important aspects of the development of European and other IP regimes as well as the forms which those regimes take.
The civil law tradition of IP is perhaps best captured by the statement of Le Chapelier, when presenting the French Playwrights Decree in 1791, that ‘[t]he most sacred, the most legitimate, the most unassailable, and, I may say, the most personal of all properties, is the work which is the fruit of a writer’s thoughts’. Implicit in this statement is that the law recognizes property rights in the products of authorial (and other forms of intellectual) labour in the belief that the nature or value of such labour or of the products themselves merits such recognition, and/or that such recognition is necessary or desirable either to enable authors to flourish as autonomous human beings, or to protect their rights in respect of their personhood or intellectual labour. Each of these arguments is a matter of considerable controversy, as is its focus on the rights and interests of individual creators. They are also the departure point for the second tradition of IP, epitomized by the United States’ (US) copyright and patent clause, which empowers Congress ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. Implicit in this clause is that the justification for granting IP rights lies not in moral or natural law arguments, but in a policy commitment to encouraging the production and distribution of intellectual artefacts through the conferral of property. Such conferral, it is said, benefits the public economically by resolving the market failure which the intangibility of those artefacts creates, as well as socially by supporting a robust public domain of expressive, informational and other intellectual (including technical) subject matter. For example, and speaking again of copyright and patents, they create a false scarcity with respect to works and inventions by excluding others from their use, thereby enabling the right holder to preserve the possibility of exploiting them commercially in the hope of recovering the costs of their creation and dissemination along with sufficient profit to undertake further such activities. Thus, by granting IP rights in the medium term, the state secures the unlimited availability of IP-protected subject matter in the long term, and this for the good of society.
As with deontological arguments for IP, the premise of utilitarian theories has been widely critiqued. That authors and inventors have no deeper claim than positive law to exclude others from the unauthorized use of their intellectual creations seems counter-intuitive in an age in which they are held in exulted status and rights-talk dominates many areas of private law. Equally contentious are the empirical assumptions of utilitarianism, including: that authors and inventors are motivated by economic considerations more than communicative, reputational or truth-seeking ones; that property rights are required and able to cure the market failure which exists in respect of IP subject matter; and that market-based systems of incentivizing creation and dissemination through the grant of exclusionary rights benefit the public more than they harm it. And it is Merges’s doubt regarding those assumptions—and his belief in particular that the data ‘support a fairly solid case in favor of IP protection–but not a lock-solid, airtight case’ — that leads him to effect a philosophical shift from social utility to fundamental rights in JIP. That this shift comes from such a prominent and well-regarded academic working within the utilitarian and law-and-economics schools of US IP scholarship adds to the interest of his book, in addition to explaining certain aspects of the approach it advocates.
Two ideas motivate Merges’s foundational theory. The first is that IP is ‘really property’, and the second is that, as a result of this, the modern literature on property has relevance for it, along with the works of Locke, Kant and Rawls on which that literature builds. Starting with Kant, Merges describes ‘individual autonomy and freedom’ as the basic foundations of IP, and as requiring legal rules of (intellectual) property that ‘maximize the freedom of all members of civil society’. The result is a view of IP systems as ‘respect[ing] individual property claims at a deep level and … simultaneously car[ing] about the practical impact of [those] claims on the lives and fortunes of others’. Put differently, and in the language favoured by contemporary IP scholarship, it is a view of IP as ‘balancing’ individuals’ property interests on the one hand with third party and societal interests on the other. Hence the question of how that balance is appropriately effected, including what it requires. On these issues, Merges tells us, Kant’s work is silent, prompting him to look to Locke’s theory of property, including Locke’s provisos and other limitations on appropriation claims. This leads him to a ‘conception of individual property coupled with state-backed limitations and taxation’, which also represents, he says, a basic liberty in a fair society. Moving thus from Locke to Rawls, Merges argues that the institutional protection of IP rights is justified by the legitimate desert claim which creators have on the basis of their dedicated development and application of talent, and by the recognized (albeit lesser) interest of society in that same talent and effort. Hence Merges’s view of IP regimes as having a solid justificatory basis in the deontological theories not only of Kant and Locke, but also of Rawls; a view which he describes as ‘hardly new’ but ‘often overlooked’ by IP theorists, and as having important implications for the way we approach those regimes.
Most choose to channel all their discussion of the proper balance between individual and society into the arena of IP law itself, as though each doctrine and each controversy must be engineered so as to get the balance right. The more systemic view supplied by Rawls’s way of thinking can get us out of the unproductive and often divisive trap of thinking that each individual rule of IP must balance out perfectly. Rawls’s approach frees us from this excessively internalist perspective and ought to be embraced for that reason alone.
As can be seen from this paragraph, a central aspect of Merges’s foundational theory is his view that IP systems can and ought to be trusted as effecting an appropriate balance overall between competing individual and societal interests, and that to subject ‘each doctrine’ and the resolution of ‘each controversy’ to detailed scrutiny with a view to ensuring that they individually effect such a balance would reflect a lack of perspective by ignoring the wood of IP for its trees. This argument has particular importance given the number of open-textured concepts in IP. For example, copyright in the UK subsists in original literary, dramatic, musical and artistic works, and is infringed by the unauthorized copying or other reserved use of a substantial part of such works. It is also subject to various defences, including where the unauthorized use of the work is a ‘fair dealing’ with it for the purpose of criticism, review, reporting current events, non-commercial research or private study. In Merges’s view, such open-texturedness in the core concepts of IP is essential to enabling the courts to fine-tune the system in order to achieve ‘the proper balance between individual and society’ referred to above, and their interpretation and application of those concepts ought (therefore) not to be second guessed. While attributed to the systemic perspective which his argument for IP entails, this view also reinforces his account of its day-to-day operation by relieving specific IP rules and practices of the burden of protecting third party rights and interests in individual cases.
JIP is not the first work to offer a pluralistic account of IP built around midlevel principles. For example, in his 2003 essay entitled ‘A Pluralistic Account of Intellectual Property’, David Resnik analyzed six approaches to IP based on Lockean property theory, US-style utilitarianism, Hegel’s theories of freedom, self-expression and property, privacy and egalitarianism, including Rawls’s pluralistic conception of justice. The conclusion he reached was that none of these approaches accounts adequately for the existence of IP, with each instead emphasizing a different value or goal which IP supports, including autonomy (or freedom), privacy, utility and justice. He argued that an alternative understanding of IP is therefore required, and expressed his preference in that regard for a pluralistic one, explained with reference to the inadequacy of the other approaches in isolation, the diversity among the different IP regimes, and the pluralistic nature of modern democratic societies, all of which he described as militating against a ‘one size fits all approach’ to IP (or any other form of property).