Niva Elkin-Koren

Copyright Policy and the Limits of Freedom of Contract

I. IN TRO DUCTION ....................................................................... 93 II. TH E PRO CD CASE ..................................................................... 94 III. THE ECONOMIC RATIONALE FOR COPYRIGHT LAW ..... 98 A. Contractual Arrangements Create Rights in Personam While Copyright Law Creates Rights in Rem .......................... 102 B. Contractual Arrangements Cannot Distort the Initial Endowment defined by a property rule .................................. 105

Public/Private and Copyright Reform in Cyberspace

A report recently released by the Information Insfrastructure Task Force, a Committee formed by the Clinton administration to articulate and implement its vision for the National Information Infrastructure (NII), recommended several amendments in copyright law. Among other things, the Report recommended expansion of the exclusive right of public distribution to cover not only physical distribution of copyrighted works to the public, but also on-line transmission. Cyberspace, however, transforms the notion of private and public, and blurs their boundaries. Therefore, this paper argues that the notion of “public” may no longer serve to define the scope of copyright monopoly. The continuous use of the public/private dichotomy as a basis for defining the scope of copyright, expands the power of copyright owners to exclude their works and fails to serve the purpose of copyright law. Proposals for copyright reform should take account for the transformation of the public/private distinction in Cyberspace.

Tailoring Copyright to Social Production

The prevalence of social production and the increase in User Generated Content (UGC) destabilize some of the fundamental premises of our current copyright law. Copyright law is primarily designed to regulate the relationships of a single owner with other non-owners and is focused on the sovereignty of the author/owner. Social production, by contrast, requires us to articulate a matrix of relationships between the individual, the facilitating platform and the communities and crowds involved in social production. The transition from industrial production to social production transforms the social relations associated with the production of content and therefore requires adjustment of the institutions that design such relations. This Article closely examines the social dimension of content production and analyzes the consequences for the governance of content in the social web. The Article proceeds as follows: Part I describes social production and analyzes the implications for the stakeholders involved. I focus on three key features of social production which affect why we create, how we create, and what assets are generated by the process of creation. Part II explains why social production might be incompatible with the current copyright regime. In particular, I argue that copyright law mainly defines rights against strangers and fails to provide a framework for managing the rights and interests within a gigantic group of collaborators. Furthermore, the exclusivity offered by copyright law may undermine social motivation and collaborative production. Finally, in Part III, I outline some of the challenges for legal policy.

Towards An Economic Theory of Unjust Enrichment Law

In various legal systems unjust enrichment is an important pillar of private law. However, it does not enjoy the same level of internal coherency and comprehensivness typical of other legal categories such as contract law and tort law. The doctrine of unjust enrichment is a rather general principle that encompasses a whole set of disconnected rules sharing a common rationale. Economic analysis can play a central role in establishing a more systematic understanding of this area of law. Confusion regarding unjust enrichment is partly attributed to a failure to distinguish between two different levels in which this doctrine function. Using the Calabresi & Melamed distinction between entitlements and remedies we show that unjust enrichment can serve as a source for the allocation of legal entitlements, and as a remedy to protect legal entitlements, and that there is no analytical correlation between the two. Subsequently, we try to show that while economic analysis of law should find it difficult to endorse the allocation of entitlements based on unjust enrichment sources, it, nevertheless, in many cases, ought to endorse the remedy of unjust enrichment to protect allocation of entitlements. The paper examines the ramifications of this remedy in circumstances that were not often addressed by the literature, where the beneficiary, who created a benefit, is required to transfer it to the alleged benefactor on the bases of unjust enrichment. In such circumstances, an incentive analysis should focus on the effects of a restitutive remedy on the behavior of the beneficiary. We show that unjust enrichment remedy, measuring actual profits, may carry different consequences then a liability rule or a property rule. This analysis demonstrates the virtue of unjust enrichment as an independent remedy, worthy of study in such cases as breach of contract or the protection of intellectual property.

The effects of cyberspace on the economic theory of the state

The book as a whole analyzes the effects of Cyberspace on the Economic Analysis of Law and argues that the networked information environment should exert a crucial influence on economic thinking, on the perception of law, and, by derivation, on the economic analysis of law. Information technologies have dramatically altered many aspects of our everyday life. They change the way we communicate with one another, the way we purchase, entertain, interact, learn, research, deliberate, do business, and indeed, think. During the past two decades the Internet has been revolutionizing economic, communal and political life. This Cyber-revolution is the most significant transformation in the information environment since the invention of printing. Cyberspace has become an integral part of peoples everyday life, and the online information environment constitutes the human condition of our time. People spend a large portion of their time using the Internet for entertainment, business, social relationships and political activities. The increasing human activity in Cyberspace is transforming social and cultural norms, creating a web of new communities, with diverse characteristics - linguistically, culturally and economically. It is beginning to blur some old boundaries across classes and social hierarchies, while at the same time drawing new borders of the digital divide, between the haves and the have nots, between those who are in command of the technology, and the technologically illiterate. The new information environment further introduces new players and novel market and non-market behaviors that cannot be easily explained by standard sociological, political or economic concepts. Cyberspace can even be thought of as affecting the definition of the self. The concluding chapter of the book (chapter 10) focuses on political theory and offers a normative analysis of the state and its government, examining collective action, rule-making processes and the organization of the public sphere. We explore whether the new technological frontiers opened by Cyberspace bear upon the liberal theory of the state (and on the economic theory of the state). We conclude that Cyberspace shakes the paradigm of Liberal Democracy and calls for re-examination of its basic foundations: representative democracy governed by checked and controlled majority decision-making. A by-product of this argument is an attempt to incorporate Republican theories of the state into economic analysis. The focus here is on the presupposition regarding individual preferences - whether they are exogenous, given or internal to the collective decision-making process.

Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s

Many of the recent calls to reintroduce formalities in copyright, have focused on its potential for restoring and enhancing the public domain. Formalities advocates claim that shifting back to an opt-in regime, where copyright protection is contingent upon satisfying certain formalities, would increase the number of works in which copyright is not affirmatively claimed. This position overlooks, however, the way our creative landscape has been shaken by the digital revolution. Digital technology has transformed the way we create, share, and enjoy cultural works, bringing users to the forefront of creative processes and facilitating new types of collaborative production. The rise of online intermediaries and the growing role of online platforms are also shaping the way we generate, share, and use copyrighted materials. These transformations are not only changing the economics of the cultural environment, they are also affecting political rights, social structures, access to knowledge, and freedom. Paying more attention to the potential effect of formalities on user-generated content (“UGC”), collaborative production, and the role of mega-platforms in implementing a formalities regime might help us imagine the possibilities and risks in the digital ecosystem and design the legal tools that are necessary to align the law with the digital era.The Article revisits some of the arguments supporting formalities as a vehicle for promoting the public domain in the 2010s, and offers some insights on the policy implications.

Does discursive authorship justify user rights

Scholars and students of copyright are familiar with the double standard that is often applied when copying pre-existing copyrighted works. As authors, we tend to feel strongly about our own work and creations, which we consider ‘our own’. Webelieve that ‘our’work is original, new, self-made, and crafted out of thin air. We often view those who copy from our works as exploiters who misappropriate or even steal what is rightfully our own. However, when we consider the works that we used while creating our own, we often view copying in a different light: ‘I was inspired’; ‘I already thought of that myself’; ‘this is so trivial, everyone knows it’; or ‘something so basic cannot possibly belong to anyone’. These strikingly different attitudes towards copying may be typical of human nature. As the saying goes, ‘the camel never sees its own hump’. It is much easier to find fault in others and to overlook our own. Yet, there is something unique about the creative process that makes this double standard particularly common. The creative process itself is often opaque and incomprehensible. We listen, watch, observe and absorb facts, symbols, images, narratives, ideas, contexts, connections and links. Once we have processed this new intake, we make it our own. We often feel it is ‘ours’, simply because we comprehend it. The greatest challenge for any copyright regime is to draw the line between what is ‘ours’, and thus requires a license for each and every copying and what is not. In a creative ecosystem of interactive exchange, where works and authors intermingle, these boundaries are often diffused. Abraham Drassinower’s book, What’s Wrong with Copying?, makes a commendable attempt to address this challenge.