Redesigning global copyright for inclusive innovation and trade in an era of disruptive technologies

3 September 2018
  • The new technological frontier suggests that a more radical conception of global copyright norms will be necessary to preserve, and even advance, public benefit in the era of digital trade.
  • A profound challenge for copyright and information policy in a world of digital trade is how the technical design of the goods or services produced will transform the nature and quality of human engagement and productivity across private and public realms, especially in labour markets.
  • The immense welfare prospects associated with digital trade requires changes in national and international copyright policy – changes that can be translated into an enhanced capacity for consumers to engage meaningfully in productive activities.
  • The international copyright framework should facilitate, within the boundaries of competitive fairness, national policies that prioritise creative liberty, civic autonomy, cultural engagement, and access to knowledge, as the fundamental values that will underpin a competitive and equitable creative economy.
  • Effective reconfiguration of global copyright law requires a pivot away from traditional harmonisation efforts so countries can legitimately pursue a diversity of needed domestic reforms consistent with a data-fuelled economy.
  • Progressive disharmonisation of copyright norms should be a conscious design feature of a new global copyright framework – one that is suitable for the socio-technological challenges of our times.

 

A rapid succession of technological advances – big data, robotics, machine learning, and artificial intelligence (AI) – is steadily changing how firms engage in productive activity, how consumers interact, and how knowledge goods are acquired, shared, and governed.

At least three issues highlight deepening tension between the explicit welfare objectives of trade policy and the existing architecture of global copyright law, which is the legal regime that shapes transactions in digital and information markets. These are AI’s potential to transform the authorship focus of copyright law and its related originality doctrine, the diminution of the first sale doctrine as applied to digital goods, and threats to the fair use doctrine from a variety of technical and private law mechanisms, including technical protection measures and anti-circumvention law.

These issues highlight significant limitations of the international copyright framework, in particular its assumption that technological change and markets are most conducive to human well-being when property rights are maximally enforced.

The new technological frontier suggests that a more radical conception of global copyright norms will be necessary to preserve, and even advance, public benefit in an era of digital trade. As traffic in, and ownership of, knowledge goods are increasingly governed by private action rather than by legislation, it is clear that the global system insufficiently sets parameters that support equitable access to knowledge goods and, consequently, global digital trade routes.

Longstanding advocacy efforts to push back on the global expansion of intellectual property (IP) rights have had limited impact on the explicit deference of the IP system to the guiding principles of the neoliberal agenda. Similarly, the strong consensus among economists and international institutions that in most cases neoliberalism has failed to deliver on its stated global welfare promise has not produced meaningful reform of international IP policy, even as firms struggle to develop business models that are adaptive to a rapidly changing and socially transformative technological frontier.

The overarching claim in my paper on creative markets and copyright in the fourth industrial era is that the global discourse about access to knowledge and cultural goods in the so-called fourth industrial revolution must involve more than concern over the precise policy levers that best facilitate production of knowledge assets and whether a majority of the world’s population can afford them. A profound challenge for copyright and information policy in a world of digital trade is how the technical design of the goods or services produced will transform the nature and quality of human engagement and productivity across private and public realms, especially in labour markets where the use of AI to accomplish simple and complex tasks previously done by humans is on the rise. Embedded in this question is how terms of access and participation in digital trade impair liberal values, such as privacy, freedom of expression, and civic participation, that are indispensable for the improvement of socioeconomic conditions. Those values must also ably influence the governance of the digital economy, including the rules applicable to the production, use of, and access to digital goods for the advancement of human welfare.

Three challenges to the design of global copyright rules

Authorship and the originality doctrine

Machine learning software systems, often referred to as a form of AI, can generate textual and visual works that might pass for human creations, but can a computer program be the legal author of a copyrightable work? As more creative tasks are delegated to machines that operate with less oversight, this question will only become more pressing, but its resolution is far from clear.

The creative aspects of AI output are likely to originate in at least three places, each a potential locus for authorial rights: the software’s programmer, the software’s user, and, potentially, the software itself. AI also presents a challenge for copyright’s originality standards: could an autonomous computer program contribute the minimal creativity that is required to satisfy most jurisdictions’ originality requirements? Originality is a relatively un-harmonised issue internationally: common-law countries tend to impose low requirements, while civil-law countries impose more demanding standards. Artificial intelligence may exacerbate these disjunctions.

The ascendency of AI marks a change in the production of knowledge goods that will demand a reassessment of copyright’s incentive structure. Algorithmically driven creative works hardly need (much less require) the same incentives as human-authored works. If the economic argument for copyright is rationalised principally by the importance of securing optimal levels of production of knowledge goods, could the prospect of replacing human authors with machines radically alter the copyright policy calculus? If copyright incentives have facilitated the steady supply of knowledge goods, how should those incentives apply to machine-driven creations? Are there risks that strong incentives with minimum requirements for legal protection pose a threat of surplus production in a world of machine-creators?

Regardless of how policymakers choose to reconcile machine authorship with longstanding legal doctrine nationally, a successful solution at the global level must facilitate alignment of business models with cultural markets to secure and stabilise the capacity for digital trade without diluting the welfare considerations indisputably linked to human engagement with the creative process. Ultimately, new approaches should urge a shift away from author-centric copyright regimes towards competition-focused policies.

Erosion of the first sale doctrine

A second considerable challenge for global copyright is the erosion of the first sale or “exhaustion” doctrine for knowledge goods and its consequences for digital trade. Exhaustion – the principle that a rights holder is not entitled to control downstream resales of IP-protected materials – has long facilitated the free exchange of goods worldwide. However, the very architecture of computer hardware may erode the traditional basis for the doctrine, as digital media creates copies (and, on some occasions, potentially derivative works) by technological necessity. Moreover, digital copies are not subject to manufacturing constraints or physical degradation.

Perhaps as a consequence, licensing, rather than outright transfers of ownership, has emerged as a dominant paradigm for trading in digital goods like entertainment media and software. Licensing affords content owners more control over their works – and undergirds innovative services like Netflix, Amazon, and Spotify. But such control also threatens to eclipse the economic rationale underlying exhaustion and the entities and markets that depend on it by eliminating the ability for good-faith end users to benefit from a secondary market of any kind.

Threats to the fair use doctrine

Finally, robust contestation over limitations and exceptions to copyright and, in particular, the once quintessentially American fair use doctrine, have significant implications for digital trade. Fair use is an open-ended exception that facilitates some unauthorised uses of copyrighted works.

Rooted in English common law, the doctrine has enabled a wide range of interactions on the internet – from cultural and political engagement to economic transactions. Many of the permission-less innovations for which the digital age is known emerged from the tapestry of a rich fair use landscape. Image search engines, linking, and device interoperability, for example, all exist in large part because of limitations and exceptions to copyright, typified by a robust fair use/limitations and exceptions environment. In short, consumer-driven entitlements are an indispensable component of the digital economy.

Strangely, however, the legitimacy, scope, and application of this copyright exception are deeply contested at the international level, and are far from harmonious from nation to nation. As digital trade reinforces patterns that make fair use less available as a legal defence for end users to assert – such as legal restrictions on the circumvention of technological protection measures, or extralegal copyright policing by online platforms – policymakers should consider designing rules that facilitate diverse forms of creativity.

Redesigning global copyright for innovation, competition, and inclusion

Emerging technologies are reshaping the digital information economy by providing new means for creating, consuming, disseminating, and transacting in creative content. These changes underscore deficiencies in national and international copyright systems alike.

Three factors are particularly salient. First, access to information and knowledge goods enabled by the internet, mobile networks, and new technological platforms have fundamentally altered the traditional contours of the innovation ecosystem by flattening the hierarchical nature of many of the economic structures that previously dominated the coordination of production. Second, this transformation embeds technology into zones of autonomy and liberty that require new policy approaches and legal instruments, challenging the one-size-fits-all model that copyright has historically used. And third is the reality that fourth industrial revolution pressures, such as automation and digitisation, despite creating unprecedented opportunities to promote equitable distributive development may, instead, replicate or exacerbate existing technology and welfare gaps.

Copyright law and competitive conduct

To effectively address these challenges, policymakers must reconceptualise copyright as neither a codification of authors’ rights nor a lever for the creation of a professional creative class. Rather, copyright and information policy should be reconfigured as a set of core principles that regulate unfair conduct, promote flexibility in national economic planning, and foster norms that facilitate the production of knowledge goods and access to the global marketplace on competitive, rather than monopolistic, terms.

Thus far, copyright law has been a hindrance to these values, partly because it leaves governance of the information ecosystem to private actors aided by continuing industry consolidation. Private firms that reaped tremendous gains by leveraging copyright limitations and exceptions to transform traditional copyright industries are now essential arbiters of the new technologically mediated production processes that impact digital trade globally. How these firms may be regulated in future is important to the competitive balance necessary to support a progressive vision of the public benefit in a world of digital trade.

Progressive disharmonisation

Aided by software, the exhaustion doctrine, and limitations and exceptions to copyright, the fourth industrial revolution was catalysed in the sectors least regulated by harmonised norms derived from the international copyright framework. New platforms for creating and consuming information have left the political, the cultural, and the innovative spheres inextricably intertwined and new technologies have enabled productive spaces not easily characterised in binary terms such as “public” or “private,” “commercial” or “personal.” Creativity takes place within and across all these arenas, utilising formal and informal routes to transmit and share data, resources, and ideas.

Today’s copyright should enable – even compel – countries to pursue, within the boundaries of competitive fairness, policies that prioritise creative liberty, civic autonomy, cultural engagement, and access to knowledge, as the fundamental values that will underpin a competitive and equitable creative economy. In other words, copyright’s non-economic justifications that are rooted in personal autonomy might need greater amplification in reconfiguring the boundaries of the public benefit that should flow from copyright law.

Should freedom of commerce, competition, liberty, freedom of expression, and other values of personhood become agreed-upon policy priorities, such considerations impel a pivot away from traditional harmonisation efforts, and towards the progressive disharmonisation of copyright regimes. Copyright’s orthotic sympathy for the human author could then be translated into a meaningful commitment to improve the capacity of national governments to facilitate welfare gains among consumers. To accomplish this goal, progressive disharmonisation should become a conscious design feature of a new global copyright framework.

Rethinking institutional arrangements

Political and social institutions matter a great deal in the array of policy choices available to countries. These institutions also matter significantly in the context of multilateral norm-setting processes. The International Telecommunication Union (ITU) is the specialised agency of the United Nations responsible for information and communication technologies. Although the World Intellectual Property Organization (WIPO) is singularly responsible for international copyright norm-setting, the role of the ITU is significant in the design of the global regulatory framework for the digital economy.

The intimate relationship between content production and the regulation of technology platforms profoundly affects the extent to which new technologies will shape competitive conditions and, ultimately, social inequality. Norm-setting activities in WIPO and other international organisations must increasingly engage issues related to the regulation of online platforms and, in turn, how those platforms react and interact with the copyright regime.

Public attention should turn to the current institutional arrangements (and corresponding allocations of power) to examine the possibility that greater coordinated institutional activities and formal recognition of the ITU’s expertise might yield dynamic global norms that fuel a reorganisation of copyright’s role in digital trade. Institutional interventions by the ITU in the copyright framework, in coordination with WIPO’s activities, can produce a technologically informed approach to copyright norms, and, in turn, elicit greater alignment between information policy and copyright law.

Capturing the welfare prospects of digital trade

Throughout the twentieth century, firms were organised around rules that defined ownership of ideas, expression, and other forms of knowledge almost entirely in exclusive terms. Intellectual property rules were designed for, and matured in, an industrial age characterised by hierarchical systems of production that facilitated competitive cross-border trade in goods and services.

At the same time, the need for global norms in a territorially defined IP/innovation environment was a key aspect of burgeoning trade relations. Accordingly, the international legal framework established in the late nineteenth century was consolidated and further strengthened in the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. These heftier rules in the TRIPS Agreement reconfigured the terms of access to knowledge goods in ways that increased the technological gap between the global south and the global north without addressing distributional effects nor, ultimately, costs to human development.

The technologies of the fourth industrial revolution may produce the same outcomes, despite how revolutionary and beneficial those technologies are expected to be to the creative process. The vintage IP rules that were expanded in the 1994 economic détente, symbolised by the TRIPS Agreement, clearly reflect certain convictions about how societies should be organised. But there is nothing inevitable about the social and economic outcomes engendered by current IP regimes.

The immense welfare prospects digital trade portends ideally must yield changes in national and international copyright policy – changes that can be translated into an enhanced capacity for consumers to engage meaningfully in productive activities, whether in economic, political, or social engagement. In the end, technological advances that drive digital trade will be judged not only by increased levels of production, but also in light of norms that support and facilitate inclusive innovation and human development.

 

This post is derived from the paper Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy authored by Ruth L. Okediji and commissioned by ICTSD.

Ruth L. Okediji is the Jeremiah Smith, Jr. Professor of Law at Harvard Law School.