Information Law and Policy

Дата канвертавання27.04.2016
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Information Law and Policy

Larry Downes

Comments on Written Assignment #3

For most of you, Assignment #3 proved to be the easiest of the three papers, and in the interests of time I won’t say much about the best arguments. I marked far fewer grammar, punctuation, citation and style problems than on the first two papers, but that should not be taken as an indication that they aren’t there.

General Comments

Many of you—in truth, most of you—still aren’t giving complete citations for cases, following my suggested format (see Comments on Written Assignment #2) or any other format. Specifically, as I’ve said, a case citation needs to give the caption (parties), the volume and page in the most authoritative reporter where the opinion begins, the name of the court and the year of decision to be complete. A pinpoint page number is required if the reference is to a particular passage.

I understand that few of you have plans for an academic career, where such things really do matter, and that even fewer plan a career in which you’ll likely be writing documents that will include citations to judicial opinions. And I doubt that many of you share my pleasure in learning citation rules and all their permutations. I also don’t imagine that my repeating the importance of attention to details in professional life, regardless of what kind of details are at issue at any given time, will help much to make my case.

So I’m left with the last possible line of argument: shame. Note that in the RFID Workshop paper that was the subject of Assignment #4, even the staff of the FTC show impressive attention to citation format, completeness, and accuracy. I’m not sure how you imagine the relative competence and motivation of government employees compares to your own, but perhaps I can shame you into coming up to their level? (I do have to note that I found one fairly significant citation error in the FTC report—but only one!)

Substantive Comments

Effective Communications - This exercise asked you to write a letter to a governmental entity encouraging them to follow your recommendations. So in part the exercise was to see if you could find a voice that would be persuasive to such an audience. Presumably, in the absence of Bono-like credentials, you would need to demonstrate that your views were reasoned and logical. And you would need to address this particular reader in a respectful tone, if not a deferential one.1 A polemic tone (“I am disgusted by the way in which the EU has blatantly favored large corporations over its own citizens!”) might be fun to write, but unlikely to be effective, let alone persuasive. Save that for your blog.
The best papers (some very short) engaged the specifics of both the evaluation and the U.S. cases to argue whether the sui generis right was needed, helpful, clear, institutionally preferred to common law alternatives, etc. Papers that argued generally about economic incentives, protecting science, etc. without indicating how the sui generis right was working or not in that regard and whether or not the American experience shed any light on alternatives to sui generis received low grades. To be persuasive, you must be specific.
Survey Data - Does the data provided in the Evaluation really tell us anything—that is, is it of any value? As some of you noted, the sample size is very small and oddly chosen, and there’s no effort to show statistical relevance. European market share goes down, U.S. market share goes up, but obviously the different legal regimes are only one possible explanation. For something as complicated as changing market characteristics using law as an incentive, I’m not even sure ten years is enough time to measure effectiveness.
My Favorite Spellchecker Goof – “The sui generis right has not spurned European producers to increase their output of commercial databases.”
Post-Feist/ProCD as AlternativesAs many of you noted, even absent sui generis rights, American database producers have “discovered” other forms of legal/technological protection, including click wrap licenses enforced by contract law. But independent of the somewhat random way such rights are shaped through litigation, do they do a better job of balancing the interests of producers and consumers than the sui generis right? Many commentators believe that ProCD in particular is far too generous a rule for producers.
You could read the U.S. cases either way, of course. On the one hand they show that absent a sui generis right, courts can still figure out which databases “need” protection and which don’t and that this largely unarticulated application of economic theory by judges accounts in part for the U.S. success vis-à-vis Europe. Or, the U.S. cases suggest a totally ad hoc and random approach to deciding what does and does not get protection –the U.S. market would be even stronger with a clearer, legislatively mandated set of criteria, such as those enacted by the EU under the Directive. Either way, you needed to argue specifics, not generalities.
What Would be the Effect of Option #2? - If you suggested Option #2, it was important to note that this option did not necessarily put Europe in line with U.S. law. Option #2 removed the sui generis right, but remember that in the common law European countries (e.g., England and Ireland), sui generis replaced a “sweat of the brow” copyright standard. Under Option #2, the common law those countries would have the choice to reinstate that standard. “Sweat of the brow,” recall from Feist, in essence gives full copyright protection to works that while not creative or original, nonetheless required great effort to produce. Full copyright is far more protective than the sui generis right (in some sense a bone thrown to the common law countries in exchange for losing “sweat of the brow”). Some of you caught that and recommended a hybrid: remove sui generis and bar a return to sweat of the brow.
The Directive did not just create the sui generis right; it also established a standard similar to Feist (originality as a requirement) for copyright throughout the EU. In other words, on the one hand the Directive gave database creators a limited copyright term, but it otherwise barred sweat of the brow—that was the tradeoff. This gave databases more protection in droit d-auteur nations but less protection in common law nations. Some of you spoke of eliminating the sui generis right and repealing the Directive as if they were the same thing. Not so. Repealing the sui generis right would mean that the EU would still maintain uniform, Feist-like standards, unless the common law states chose to revert to sweat of the brow.

1 Not unlike many writing/communications assignments you will find yourself completing for the rest of your life, even if you don’t write letters to government agencies for a living.


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