2024 | Book

Copyright as a Constraint on Creating Technological Value

Author: Kasper Drazewski

Publisher: Springer International Publishing

Book Series : Law, Governance and Technology Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

Can we regulate something that doesn’t exist yet? Can Europe create its own Silicon Valley? Who gets to create technological value in today’s world? Whatever happened to the once-flourishing idea of rags to riches? Will new and exciting innovations only ever come from big tech companies? Can the EU establish its own flexible framework for boosting innovation, e.g. by facilitating the transformative use of technologies and data?This book seeks to answer these questions by exploring the differences in copyright culture in Europe and the United States, with its flexible fair use framework. The findings are anything but obvious, and decades of case law on both sides of the Atlantic tell a story of judges going to great lengths to deal with new challenges while navigating the imperfections of statutory law – both where it is too broadly formulated and where it is too prescriptive.How can the population’s creative potential best be fostered? What do software innovations have in common with the evolution of living organisms? What are the vulnerabilities of distributed creativity? Answers are sought in the processes that came into being during the early years of the digital revolution and were then forced to take a back seat as control of the means of production was increasingly placed in the hands of tech companies. The findings and insights presented here are highly relevant for today’s digital policymaking. Market concentration processes in innovation haven’t ceased; they are ongoing. And in an age where data-driven services are creating and reinforcing global oligopolies, the question posed by the U.S. Supreme Court in Google v. Oracle is now more relevant than ever: who should hold the keys to digital innovation?

Frontmatter

Chapter 1. Introduction: Legislating for the Digital Reality: A Moving Target

Abstract

In this day and age, it has become difficult to speak of technical development without repeating any of the circulating clichés. It has become customary to mention it in the context of recent years as being accelerated, unprecedented, even racing; the same goes for buzz words such as the ‘digital reality’, ‘digital age’, ‘digital revolution’, ‘age of communication’, etc. I am certainly just as guilty of their use in this work for they are more than just empty slogans; if anything, I see them as an attempt at reasoning with, and defining the nature and dynamics of a relatively new period in human history brought about by the penetration of our lives by computing devices and high-speed connectivity. Whether the technological shift can indeed be said to represent actual progress is in itself a matter for debate; it could be said, to paraphrase Michael Crichton, with all the vacuum cleaners, washer-dryers, trash compactors it still takes just as long to clean the house as it did in the 1930s. Be it or not progress indeed, some three decades ago humanity entered a new era, one that would certainly pose a challenge to legislation as we know it, the full extent of which we may not yet fully realize.

Kasper Drazewski

Chapter 2. Welcoming Digital Innovation: Why America Seems to Get It Right

Abstract

The recent history of intellectual property cases on both sides of the Atlantic provides numerous stories on how new technological solutions and innovative technologies have put justice systems to the test. Put crudely, innovation has the bad habit of being innovative; therefore, it does not always benefit from being legislated for in advance. This ‘shortcoming’ appears to be more of an issue in legal systems relying on precise rules instead of flexible standards that would leave room for interpretation by courts of law. Conversely, legal systems allowing greater discretion to judges seem to be ultimately more welcoming of new digital technologies and find it easier to deal with the challenges they present from the intellectual property perspective. As a prime example, U.S. copyright law hands the judge a flexible fair use test to apply to the individual case, weighing its unique aspects, including general considerations such as the benefit to the public, and to reach a conclusion that was not necessarily foreseeable at the time of the statutory law being drafted.

Kasper Drazewski

Chapter 3. The Mechanics of Flexibility

Abstract

Returning to the famous quote by Judge Baer in the Hathitrust case, it is noteworthy that, when delivering his final points in a judgment to end a milestone battle of traditional intellectual property protection against an innovative investment that was shaking its very foundations, he chose to remark on the value of this novel contribution to the progress of science and creative arts being so immense that it could not have been deemed not to constitute a fair use of the protected works. This inspires the question: where exactly does the flexibility originate, as demonstrated by American judges (albeit not only, as will be shown), in fringe cases pertaining to IP protection in the context of digital innovation?

Kasper Drazewski

Chapter 4. Jewels in the Sand: Supporting Creativity in a Mass Networked Environment

Abstract

Stories like the Brennan player, reuse of intellectual property by search engines or the various cases surrounding Google Books highlight a dimension of the interplay between copyright and innovation and an accompanying dynamic involving the role of the judiciary. The examples sourced from the European side showed remarkable efforts of judges seeking out possibilities to remedy the situation, leading to solutions which all showed a considerable degree of creativity, but were all flawed in being necessarily inconsistent and questionably sustainable over the long term, particularly in going against the letter of the law which does not allow flexible exceptions that would apply to new technological developments. These dynamics will be analysed in more detail in the final chapter of this book. But before we delve deeper into the role of courts of law in safeguarding (or curtailing) technological innovation, an important question must be asked: is there a type of innovation that is uniquely bound to the history and nature of networked personal computing—and if yes, what makes it worth preserving?

Kasper Drazewski

Chapter 5. EU (Non) Remedies to Inflexible Copyright: Contracts as a Policy Tool

Abstract

To paraphrase the question asked by the U.S. Supreme Court in Google v. Oracle: who holds the keys to innovation in a data-driven economy? A lot has been written about the personal data collection and generation ecosystem that rose from the ashes of the World Trade Center, born from an ambition to create a network of information collection as means of improving national security. The massive global network that emerged, employing a myriad of companies aiding the Big Tech giants’ data collection by creating millions of data points in apps, websites and connected devices, siphoning data and monetizing it, had for many years evaded the attention of the general public. The eyes of the world began turning towards the issue around the time when Shoshana Zuboff’s book on omnipresent data collection and monetization, The Age of Surveillance Capitalism, rose through the charts in 2019, with Barack Obama naming it one of his top books of the year. Around the same time, discussions on the market implications of the new data economy were on the rise again, giving rise to literature demonstrating how the age-old mechanisms of some actors grabbing the means of production—in the traditional take, these were labor, land and money—have now emerged again, giving rise to a new generation of industrial tycoons without an industry, massive platforms propertising intangible resources and giving rise to a new brand of information capitalism, ruled by economic actors that control the flows of data.

Kasper Drazewski

Chapter 6. Courts of Law V. Choke Points for Technological Innovation

Abstract

In the course of our journey, we have seen the ‘traditional’ approach to innovation becoming challenged by networked individuals involved in grassroots initiatives. It has been discussed at length how the networked innovation culture, which had laid the foundations for the digital reality of today, had operated for years based on sharing and collaborative effort, allowing the coining of quality technological standards and their widespread diffusion. It has also been shown how fragile this type of ‘digital evolution’ may be when confronted with the licensing schemes for proprietary code. What now merits a closer look is how such innovation models put to the test the very foundations of copyright from the perspective of its purpose of balancing incentives. When the lines between creators and users become blurry, as it happens in the case of a grassroots mass innovation network, the ages-old division into the suppliers and consumers of intellectual property may no longer apply—or apply in an entirely different way.

Kasper Drazewski

Chapter 7. Conclusions

Abstract

When discussing legislative choke points to digital innovation, it is important to note that there is one more level of convergence between those potentially affecting corporate innovation and grassroots collaborative projects involving networked individuals: in both cases, the benefit from eliminating such obstacles is not quantifiable. Just as one cannot, with any certainty at least, make predictions on the quantity (or quality) of innovative projects to be developed within the coming year, how many of them will be commercialised and to what extent this will affect future developments, it appears similarly impossible to try and quantify the potential increase in GDP, the well-being of society or the behaviour of the stock market due to anticipated technological innovation in the wake of any given legislative change. In consequence, it cannot be said with any certainty how big an improvement Europe would see in the area of technological innovation should it choose to add a measure of flexibility to its copyright law. Applying this framing to innovation is misleading given the nature of the problem under discussion; for want of a better comparison, the situation can be likened to that of the government in a country that is hungry for quality road infrastructure pinning the decision to build roads on whether it can be guaranteed how much money will toll fees bring into the treasury.

Kasper Drazewski

Title: Copyright as a Constraint on Creating Technological Value
Author: Kasper Drazewski
Publisher: Springer International Publishing
Electronic ISBN: 978-3-031-51276-6
Print ISBN: 978-3-031-51275-9
DOI: https://doi.org/10.1007/978-3-031-51276-6