Drake IP Roundtable 2013: Kristelia Garcia: Extra-legal rights accretion

Liveblogged from Drake IP Roundtable 2013.

Garcia is concerned about the way copyright is modified — expanded or contracted — by private actors.

Expansion by overlicensing: rights are expanded because people are risk averse, licensing then becomes a norm, and this then becomes another stick in the bundle of rights. Caused by (a) copyright trolls; scaring people into licensing; and (b) fearmongering litigation (especially in porn cases) – threatening many counts of infringement, and resulting in a de facto expansion of rights.

Expansion by private agreement: establishing a contractual obligation to pay where no legal obligation exists. Taylor Swift’s record label negotiated a terrestrial performance right in exchange for reduced digital royalties. Blockbuster negotiated a rental right. Youtube allows revenue sharing, providing extra rights to copyright owners. Rights are thereby expanded extra-legally.

Rights are also contracting. Underlicensing: Amazon’s new autorip service allows automatic ripping of physical cds, including cds that the users no longer owns. Amazon have the rights to sell one copy, and are now selling two copies – physical and digital. The rights might be licensed now, but they weren’t at the start. Girl Talk is a heavy sampler who relies on fair use arguments – begging rightsholders to sue him to clarify legal status of mashups. Rightsholders are hesitant to sue, fearful of PR fallout and potentially adverse legal precedent.

Garcia argues that these private expansions and contractions are caused by: holes in legislation, lack of bright line rules; overreliance in IP on standards, as opposed to rules; and fast changes in technology that the courts cannot keep up with.

Garcia argues that these private changes to IP pose three main problems:

  • They risk changing the levels of copyright that we think is efficient. How well does the entire system, with private agreements, work?

  • There is a potential for private parties to set bad precedent that becomes ingrained in industry norms.

  • There is also a potentially heavy burden imposed on smaller actors who do may not have the ability to reach private agreements.

Garcia suggests some of these problems can be ameliorated by clarifying legal ambiguities, developing more bright line rules and becoming less reliant on standards. Also suggests that in some cases test litigation might be helpful and could be encouraged, but sometimes it might just be inefficient and should potentially be discouraged by increasing financial burden on unsuccessful parties.