{"id":29357,"date":"2019-05-07T12:41:41","date_gmt":"2019-05-07T11:41:41","guid":{"rendered":"http:\/\/blog.journals.cambridge.org\/?p=29357"},"modified":"2019-05-07T12:46:43","modified_gmt":"2019-05-07T11:46:43","slug":"copyright-books-and-progress-charles-clark-memorial-lecture-2019","status":"publish","type":"post","link":"https:\/\/www.cambridge.org\/core\/blog\/2019\/05\/07\/copyright-books-and-progress-charles-clark-memorial-lecture-2019\/","title":{"rendered":"Copyright, Books and Progress: Charles Clark Memorial Lecture 2019"},"content":{"rendered":"
<\/div>

This year\u2019s Charles Clark Memorial Lecture, entitled Copyright, Books and Progress, was delivered by Professor Daniel Gervais, Milton R Underwood Chair in Law and Director of the Vanderbilt Intellectual Property Program at Vanderbilt Law School.<\/p>\n

\"Daniel<\/p>\n

Professor Gervais began by stating that copyright is more about intermediation than authors; it is meant to help create value in the marketplace.\u00a0 For the first 290 years of copyright, it was traded between professionals, who could afford greater transaction values than ordinary users.\u00a0 This enabled creators the luxury of focusing on their creative work.\u00a0 There has now been a shift to a many-to-many infrastructure (caused by the Internet).\u00a0 The might of online users has eclipsed many of the discussions on the rights of authors and professional users.\u00a0 The new intermediaries are not copyright owners, and generate revenues by selling advertising.\u00a0 Their aim is to pay as little as possible for creative works.\u00a0 Intermediaries can now control access to and use of content \u2013 e.g., by managing search results \u2013 but claim that the no liability rules still apply to them.\u00a0 The industry should revisit the \u201cintermediation paradigm\u201d by focusing on maximising authorised use.\u00a0 Essentially, this means by licensing.<\/p>\n

Copyright implies \u201cone size fits all\u201d \u2013 but now this doesn\u2019t work.\u00a0 Allowing the re-fragmentation of rights materials to create a single protected object does work.\u00a0 The twenty-first century user is not limited to consumptive use only; may add comments; may alter and re-disseminate; and likes new search options.\u00a0 Imitation has long been part of the creative process, but it has now been raised to \u201cimmeasurably higher levels of good and bad\u201d.\u00a0 The ability of the Internet to disseminate worldwide at little cost is a powerful leveller; but saying no to a user online is the least desirable option.\u00a0 The push for limitations and exceptions is informed by the view that content should be free; but there is often confusion about the use of the term \u201cfree\u201d.\u00a0 Therefore, if copyright can be aligned with purpose, the need for more limitations and exceptions will be reduced.<\/p>\n

A key \u2013 and very quotable \u2013 central tenet of Professor Gervais\u2019s thesis is that \u201cthe economic component of copyright should be a right to prohibit users that demonstrably interfere with actual or predictable commercial exploitation.\u201d\u00a0 Technology will change; creative processes will change; but it will be a long time before we abandon markets.\u00a0 \u201cCopyright as a cultural and economic tool is a much better justification for preserving the right.\u201d\u00a0 The nature of content should matter to us all; progress doesn\u2019t necessarily mean \u201cnew\u201d, because new doesn\u2019t always justify progress.\u00a0 Professor Gervais clarified this point by asking whether copyright incentivises the right things.\u00a0 He said that it was clear that in order to achieve its aims, new content must not only be created but made available, while finding ways not to disadvantage those who have spent their lives perfecting their creative craft. \u00a0Spending time on creativity is essential for humanity to reach maximum levels of achievement: \u201cEven abundant talent needs to be honed, nurtured and developed.\u201d<\/p>\n

In the knowledge economy, creativity has replaced the value of material goods.\u00a0 Policies must ensure that those who can, will, push their creative limits.\u00a0 The US constitution states the purpose of copyright is progress and that the beneficiaries are to be authors.\u00a0 Change that is not progress means moving sideways or going backwards.\u00a0 Human emancipation through science and the arts is progress; the role of governments is to promote progress by ensuring that the \u201cgreater proportion\u201d of change is for progress.<\/p>\n

What can history teach us?\u00a0 Erasmus said, \u201cYour library is your paradise\u201d, and \u201cWhen I get a little money I buy books; if any is left, I buy food and clothes.\u201d\u00a0 Good governance of human progress is about promoting conditions for business to thrive across borders and for humans to develop their potential.<\/p>\n

\"Daniel
Daniel Gervais<\/figcaption><\/figure>\n

Professor Gervais identified three positive developments: the case for encompassing progress not just in terms of the next quarter\u2019s GDP growth, but on a broader scale; the fact that most policy makers now acknowledge that making copyright rules in a vacuum \u2013 as if Intellectual Property were a separate entity \u2013 makes little sense; and that, although poorly-calibrated laws run counter to their stated objective, \u201cluckily, poor calibration or absence of calibration can be reversed.\u201d\u00a0 As he put it, \u201cWe should see ourselves as heirs of past human intellect, creators in our time, and messengers to the future.\u201d\u00a0 The belief that the law can help to bring out the best in people while keeping \u201cthe rest\u201d at bay is strongly ingrained in our (i.e., Western) constitutions.<\/p>\n

He concluded by making what he called \u201ca few concrete suggestions\u201d:<\/p>\n

    \n
  • In the face of the takeover of human creativity by a small number of large technology companies, we can either take a laissez-fair (or, as he put it, \u201ctech\u00e9-faire\u201dapproach, and \u201clet a few flowers and a billion weeds grow\u201d; or we can use copyright to foster creativity more proactively.<\/li>\n
  • OR we can regulate dissemination.<\/li>\n
  • OR we can implement a policy that implies some <\/strong>regulation.
    \n<\/strong><\/li>\n<\/ul>\n

    Internet users need filters \u2013 there is simply too much \u201cout there\u201d; moreover, \u201cit is essential to separate the means of diffusion and dissemination of creative works from the means of production\u201d.\u00a0\u00a0\u00a0 Much of the new digital content is \u201cnoise\u201d \u2013 e.g., fake news.\u00a0 Two giant companies \u2013 Facebook and Google \u2013 suck up most of the revenue from the Internet.\u00a0 But for many forms of enterprise, the Internet is \u201cit\u201d; and the Internet is also the only means of revenue for many companies.<\/p>\n

    As his \u201cepilogue\u201d, Professor Gervais summed up by saying that copyright law matters: it is the main policy tool we have to effect financial flows to professional creators and publishers \u2013 highly desirable goals for the future of progress.\u00a0 \u201cThe Internet\u2019s purpose should be to foster, not hinder, rights.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

    This year\u2019s Charles Clark Memorial Lecture, entitled Copyright, Books and Progress, was delivered by Professor Daniel Gervais, Milton R Underwood Chair in Law and Director of the Vanderbilt Intellectual Property Program at Vanderbilt Law School. Professor Gervais began by stating that copyright is more about intermediation than authors; it is meant to help create value […]<\/p>\n","protected":false},"author":79,"featured_media":24137,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2251],"tags":[217,5831,726,770,83,315],"coauthors":[2954],"class_list":["post-29357","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-librarians","tag-academic-publishing","tag-charles-clark-memorial-lecture","tag-copyright","tag-internet","tag-law-2","tag-publishing"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/29357","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/users\/79"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/comments?post=29357"}],"version-history":[{"count":0,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/29357\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media\/24137"}],"wp:attachment":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media?parent=29357"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/categories?post=29357"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/tags?post=29357"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/coauthors?post=29357"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}