The thesis begins with a short history of copyright and of the main events surrounding its development. Moments like the Statute of Anne, the convention of Berne and the TRIPs agreement have been briefly mentioned to describe the vivid evolution of this relatively new concept. The part related to the history of the copyright concept is followed by an explanation of the four main classical theories, which try to justify the legal institution of copyright: the utilitarian theory, the natural rights theory, the personality theory and the social planning theory.
The second part of the thesis discusses some of the effects of the digital technology on the legal theories related to copyright. The digital technology transforms some of the characteristics of the works of authorship, e.g. works may be distributed easier, faster and cheaper. In turn, these transformations modify the legal landscape of copyright. The former balance between the copyright owners and the general public cannot be maintained any longer and a new one should be found. The efforts of the individual states and of the international community to find a new balance have been embodied in a new set of statutes and international conventions.
The last part of this paper refers to the position of the developing countries in the international system of copyright. The history of this position and the new issues brought by digital technologies are discussed, as well as some thoughts over what this position should be.
The digital technology is the beginning of a truly new era: the information era. We hardly began to see its effects and we understand that few events in our history had this magnitude. It is hard to guess what exactly will follow in the course of our history and how far the digital technology will get into our lives. Copyright is one of the earliest conquests of digital technology. Concepts and ideas settled a long time ago began to shake and good rules of law turned into at least questionable rules. What are the old rules and what is that makes so many people unhappy about them is one of the themes of this paper. We have to understand how digital technology changed the work of authorship and the relation of the copyright owners with the public at large. Such an understanding would explain what changed in the law and would give solutions for the future.All the research related to the future of copyright law should be undertaken within the frame of the new global perspective. No state is isolated anymore from the international community. Digital technology with its borderless nature turns copyright law into a strictly international field of law. Who are the new players in this field and what are the interests we will try to find out. What seems clear is that the discourses surrounding intellectual property should include a clear understanding of the role and position of developing countries in the new era.
The concept of copyright is a relatively new idea in human history. The emergence and early development of this concept was linked to the beginnings of the printing press and the expansion of this new medium of expression and its market. The type of culture and the types of expression before the printing press were not compatible with such a concept. When the printing press arrived, a new market was born also: the market for copies of manuscripts. As the new market was born, two kinds of market players arrived: the legitimate players – authors, merchants and manufacturers who either composed the work or contracted with the author and illegitimate players – the pirates. The history of copyright from the Middle Ages onwards is a story of the legitimate players fighting among themselves and fighting the illegitimate players to get a bigger piece of the revenue cake. What makes this history so interesting is the particular combination of ideological discourse and market interest. During the entire history of copyright, competing ideologies either helped or opposed market interests. (1)
The printing privileges were the first instruments to control the market interests in copies of manuscripts. Privileges were “exclusive rights granted by the state to individuals for limited periods of time to reward them for services or to encourage them in useful activities.” (2) These exclusive rights were granted first to the printers and then, in time, to authors, translators, and editors, starting in the middle of the fifteenth-century.(3) Later, when the market developed in a way such as to permit ideologies (even the unorthodox ones) to be transported by books, the privileges were mingled with censorship. State authorities found in the privileges a way to control which ideas could be delivered to the public through books. (4)
These early exclusive rights were not primarily intended to protect authors but to help the market develop.(5) The printing privilege was a kind of monopoly, not a kind of property. Authors and printers were encouraged to continue their work but the exclusive right they obtained was subject to the will of the king and was based on an idea of reward – not on a property ideology. Authors were not yet owners of their works. (6)
1.1.2 Early Copyright National Legislation
The first pieces of legislation regarding copyright are linked to the early romantic conceptions of authorship. The combination of market interest and ideology is evident in the disputes surrounding the adoption in 1710, of the Statute of Anne in England, the first statute on copyright. By 1710, several metaphors had developed around the concept of author, two primary metaphors being the author as a father of his writings and the author as an owner of his writings (like an owner of real estate). These metaphors were used by the different parties in the legislative adoption process (authors and publishers) to sustain their own market interests.
(7) In France, the ideology was more powerful. The discourses related to the laws enacted after the French Revolution tried to simultaneously balance at the same time the property right of the author in his work and the public interest in the dissemination of the works.
(8) The strong doctrine of author, including moral rights, developed later, after 1800. (9)
The national laws evolved over time, amidst clashes of the market interests of the authors, publishers and pirates. In England, the statutes of 1814 and 1842 extended the copyright term from fourteen years from publication (renewable term) to twenty-eight years from publication or the author’s lifetime, whichever was longer, and later to the author’s lifetime plus seven years or forty-two years from publication, whichever was longer. (10) Evolution shows the paradoxes of the discourses of interested groups: “In the eighteen century the proponents of perpetual copyright were the booksellers. By the early nineteenth century, however, the trade had just adjusted to the limited copyright term, and many had a vested interest in it; it was authors…who were now claiming that their rights should be perpetual.” (11) Such changes of attitude show that interested groups were only using ideology to support market interests. The first federal piece of copyright legislation in US was enacted in 1790. In 1831, the initial term was extended from a renewable fourteen years to twenty-eight years (renewable for fourteen). Other extensions of the copyright legislation were enacted in 1909, 1976, and 1998. The most important revisions of copyright law in France were done in 1957, 1985, and 1992. In this country, too the term of protection was substantially extended. (12)
As the European market continued to develop and as trade barriers continued to fall, the market for books and other works susceptible of copyright began to internationalise.
(13) Unauthorized copying of books by foreigners (the illegitimate players) became a problem especially for France and the United Kingdom, which were the main producers of cultural merchandise at the time.
(14) Legitimate players in the market used the term “piracy” to designate this practice from its inception in the nineteenth century because the word conveyed “some kind of moral condemnation.”
(15) This denunciation made it harder for the policy makers of the time to thoroughly consider the public interest in “pirated” works. It also became clear that a national copyright system was no longer sufficient to protect the interests of authors and publishers. The first steps towards correcting this situation and creating international copyright laws were the protection granted to foreign authors, based on reciprocity and the bilateral agreements concerning copyright.
(16) Bilateral agreements, however, were not a satisfactory solution as they developed into an incomprehensible and changing web of arrangements between nations. (17)
Consequently, a need to standardise the international copyright rules and to make protection easier led to the idea of an international convention for the protection of copyright. An international convention was not the only way to achieve the standardization purpose; other solutions are conceivable (such as adoption of uniform national laws following a common pattern – something like the UNCITRAL Model Laws). A compromise between the universalistic view of international copyright of the civil law countries and the pragmatic view of the common law countries led to the adoption of the Berne Convention for the Protection of Literary and Artistic Works . (18)
1.1.4 The Berne Convention
The formation of the International Literary and Artistic Association (ALAI) in 1884 created an increase in lobby-like activity of the authors in favor of adoption of a uniform international legal regime regarding author’s rights.(19)
After three diplomatic conferences in 1884, 1885 and 1886 the Berne Convention for the Protection of Literary and Artistic Works was signed on 9 September 1886 and came into force on 5 December 1887.
(20) The Berne Convention’s approach to protecting the rights of authors and artists was to adopt the principle of national treatment. This approach was preferred over the adoption of a common copyright law for all the countries of the Union because of “the diversity of the existing laws and principles”
(21). Basically the principle of national treatment meant that foreign authors were protected in a country of the Berne Union in the same way as authors of that country. Even if the national treatment principle was to be the basic rule for the next hundred years, it was counterbalanced by the minimum rights provisions. Such provisions would impose some minimum standards in all countries of the Berne Union so that a harmonized minimum level of protection is common to those countries.
(22) At the time of its signing the only minimum exclusive right included in the Convention was the translation right. (23)
The Berne Convention was revised during several revision conferences in 1896, 1908, 1928, 1948, 1967 and 1971. (24) The general trend in the revisions was to enlarge the base of minimum rights granted to authors. For example, during the Berlin revision conference of 1908 the Union members decided to uniformly eliminate from their national laws the formalities requirements for protection (e.g. deposit of a copy with the central national copyright office or marking the sign © on the copies of the works). (25) A mandatory minimum term of protection (50 years from the death of the author) for the works became part of the Convention in 1948, following the Brussels revision conference. (26) A new article, 6bis, was added to the text of Convention during the Rome conference in recognition of the moral rights of the authors. (27)From our perspective the most interesting developments of the Convention were the Stockholm and Paris Revisions as they were mostly concerned with the situation of the developing countries.(28)
We note that the United States did not accede to the Convention for more than one hundred years from its entry into force due mainly to the peculiarities of the United States copyright law with regard to formalities required for protection. The United States adhered to the Berne Convention only after adopting the Berne Convention Implementation Act (B.C.I.A.). (29)
1.1.5 New Rights and Conventions
New technological developments (sound recordings, films, broadcasting) demanded recognition of new rights for authors and producers. The Rome Convention of 1961 for the protection of performers, producers of phonograms and broadcasting organizations is an example of recognition of new rights. (30)
Although some important states (especially the United States) were not parties to the Berne Convention due to its high minimum standards, they still needed international protection. Thus, the Universal Copyright Convention was adopted in 1952 as a temporary substitute for Berne. (31)The role of the Universal Copyright Convention (U.C.C.) as an intermediary step to larger protection was evident in the “Berne Safeguard Clause” of the U.C.C., which prohibited a Bern country “from denouncing Berne and relying on the U.C.C. in its copyright relations with the members of the Berne Convention”. (32)
1.1.6 The De Facto International Copyright Code (33)
Currently, international copyright is much more than national treatment. In fact, an analysis of the provisions of the latest treaties regarding copyright shows that a de facto international copyright code is in place.
(34)Three important treaties, together with the revised Berne Convention, account for this new situation in international copyright: the “Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods” of 1994, the “WIPO Copyright Treaty” and the “WIPO Performances and Phonograms Treaty”, both of 1996. Each of these treaties contains a body of minimum standards for protection and consequently the area of individual national legislation has been consistently diminished. (35)
In Europe the expansion of authors’ rights is confirmed by the adoption of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (European Copyright Directive). The Copyright Directive was drafted in direct response to the technical challenges brought by the Internet age. (36)
1.2 Theories shape reality, reality shapes theories
Four paradigms dominate modern writings on the nature and justifications of intellectual property. These are the utilitarian theory, the natural right theory, the personality theory and the “Social Planning Theory”.
(37)A multitude of variations and combinations of these theories may be found in the copyright literature.
Understanding each of these rhetorics on copyright claims is essential for understanding how the copyright policies developed over time and for assessing the today’s copyright environment. Each of them sheds some light on why the decisions to adopt different copyright policies were made in a particular manner.
1.2.2 The Utilitarian Theory
The use of the utilitarian theory in the copyright discourse is as old as copyright itself. The United States embraced the theory and the result was the Copyright Clause in the Constitution. (38)
The proponents of the utilitarian “rhetoric” in copyright theory justify the need for a copyright legislation on the social need of the authors to receive incentives in order to create works of authorship. The authors’ need for incentives should be balanced with the public’s needs such as widespread dissemination of works and information. Consequently, policymakers must search for the best balance between the exclusive rights vested in the authors and the public interest. (39)
The analysis of copyright’s pros and cons in the utilitarian perspective has recently been framed in economic terminology. (40) We should note however that the economic analysis of copyright is done mostly from the perspective of a liberal democratic society. Consequently the economic analysis is rooted in the assumptions on which the liberal democratic society is based. Different kinds of economic analyses could be made from other different perspectives.
Economic analysts aim to discover whether copyright law has economic roots in the principle of efficient allocation of resources and whether applying such economic principles may lead to better copyright policymaking. The main point of the utilitarian theory has been rephrased in economic analysis: “Striking the correct balance between access and incentives is the central problem in copyright law”.(41) An intellectual property good has a very important distinguishing characteristic compared to other resources: it can be used by several persons without being consumed. The corollary of this characteristic is the possibility to copy the intellectual property works without incurring the costs of producing them (or “expression costs”)(42). As competitors to the author incurring the expression cost could copy the work at a lower cost the incentive for authors would disappear. Therefore, copyright is needed to help authors recoup their expression costs and consequently to act as an incentive for authors to create new works knowing that their effort will be rewarded. The basic formula to reach the correct balance is “the work will be created only if the difference between expected revenues and the cost of making copies equals or exceeds the cost of expression”. (43) Translating this into policymaking language: “For copyright law to promote economic efficiency, its principal legal doctrines must, at least approximately, maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection”. (44)
The economic analysis explains some of the current principles of copyright. Viewing the idea/expression dichotomy from an economical point of view is necessary because the social need for as many creative works as possible is best served this way. If ideas were protected authors would incur substantive greater costs in creating works and therefore the number of works would decline and the market would get smaller. (45)
The economic theory of copyright has been refined and diversified over time. To the classical balance structure (incentive versus social loss) shown above, new elements have been added. The question is whether simple economics analysis is enough to find the right balance in copyright policymaking. Is it enough to calculate the direct economic benefits and cost of granting a monopoly to the authors? To quote one of the modern critics: “There is the very real possibility that many individuals who value the good at greater than its marginal cost of production, so that it would be socially desirable for them to have it, will be unable to obtain it if their valuation is below the monopoly price”. (46) Moreover some other researchers have shown that the basic assumptions of some of the present economic copyright theories are not sound:
The literature, by many different authors from a number of different fields and with different perspectives, has over a long period of time not infrequently (1) analyzed intellectual property rights on the assumption that they confer an economic monopoly on their owner, (2) analyzed intellectual property rights one at a time, rather than as part of a system, (3) analyzed the rights as issued and ignored the recontracting possibilities, and (4) tended to consider only a limited number of the possible policy variables available in the design of intellectual property rights. (47)
The newest trend in economic justification of copyright is a combination of neoclassical and new institutional economic property theory. These theories have been behind the contemporary expansions of copyright. (48) Both the old and the new theory promote wealth maximization and allocative efficiency. The practical results, however, are different. Under the new theory, “copyright is primarily a mechanism for market facilitation, for moving existing creative works to their highest socially valued uses. Copyright can best serve this goal, neoclassicism suggests, by enabling copyright owners to realize the full profit potential for their works in the market.(49) ” Realizing the full potential profit demands strict control over and accountability of the uses of the works. The neoclassicism does not go without critic: a policy strictly following its prescriptions would endanger the free speech rights, the dissemination of works at large and the community creativity. (50)
1.2.3 The Natural Right Theory
The natural rights theory was born in the seventeenth century and gained mass currency, especially in England and France, in the eighteenth century. In the Middle Ages there was no established connection between personality and authorship, but starting with the seventeenth century authors began to realize how personal their contribution (the work) was to the society. Paralleling this increased self-consciousness, a set of metaphors emerged to describe the relation of the author to this work, of which the most convenient and having the potential to convince parties not directly interested in the market was the property metaphor. Authors compared themselves to God or to manufacturers or to the workers of land and asserted that their right is a natural one as the work is the product of their labour. Moreover, the right in intellectual property would be even more natural than other property rights because the only source of creating intellectual works is the mind. (51) One of the most influential varieties of the above metaphors was the one based on John Locke’s theory of property: the labourer mixes his efforts with the undeveloped state of nature and therefore he should be owner of the resulting object (be it an agricultural product or, as later the theory was extended, a work of authorship). This particular discourse has been largely preferred by copyright proponents because it proved very propaganda-effective. The authors and publishers could use a particular terminology normally related to real estate property in the case of copyright. Words like “theft”, “piracy” and so on appeal to the general public and even to some policymakers in a very effective way. The result was often an excessive and unjustified encroachment of copyright over public interest. The study of the effects of Locke’s theory on the realities of copyright is particularly interesting because it shows how his theory was denaturated by its users. It has been shown that an important feature in the original Lockean discourse is the public interest. (52) Locke’s public interest proviso was “forgotten” by interested parties because it meant a limit on the extent of copyright.
Another version of the natural right justification for copyright is the one first developed by the German philosopher Hegel. In this version the accent is more on the importance of the personal expression of the author and his dignity, and less on the work as fruit of labour. The author embeds his personality in the work and thus deserves recognition of the work as recognition of his personality. (53)
The theory fails to fully explain the large body of subject matter protected by modern intellectual property law. If the work is an extension of the author’s personality – and only as such deserves protection – then it is hard to explain the protection granted through copyright to works with a low level of originality. (54)
Moreover the different interests, which could be derived from the need to protect the personality of the author, are not always compatible with one another. Even if we assume the need to protect some of these interests we may reach widely different conclusion based on how we decide to put them into practice. (55)
This distinct trend, however, led to the general recognition of authors’ moral rights in the civil law countries and ultimately to the codification of these moral rights in Article 6bis of the Berne Convention. (56)
1.2.5 The Social Planning Theory
Under the social planning pattern, the justification of copyright may be found in the “achievement of a just and democratic culture” (57). What is meant by this wording is more clearly expressed by Neil Netanel:
a conceptual framework for copyright that stands in opposition to both the expansionism of neoclassicist economics and the minimalism of many critics. That framework, which I will label the democratic paradigm, emphasizes that copyright is in essence a state measure that uses market institutions to enhance the democratic character of civil society. In supporting a market for authors' works, copyright serves two democracy- enhancing functions. The first is a production function. Copyright provides an incentive for creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association. The second function is structural. Copyright supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy. The democratic paradigm requires that copyright protection be sufficiently strong to ensure support for copyright's production and structural functions. (58)
Though very appealing, this new theory has the same practical problem as the older ones: how to derive practical policymaking steps from its concepts. As an example - how could one define, practically speaking, the “just and democratic culture”? (59)
1.2.6 The Role of the Theories
The above four theories represent only the main trends in scholarship on the justification of copyright. There are many other derivates focusing on specific issues, like the one discussing the effect of copyright on the free speech in light of the US Constitution’s First Amendment. (60)
The typical role of legal theory is to guide policymakers in the process of legislating. The policymaking decision should probably be taken on the basis of a coherent theory based on facts. The history of copyright and the modern situation in the copyright arena show us a different picture. Since the seventeenth century different groups promoting specific forms of copyright legislation have used one or more theories to appeal to a larger social group than the one of which they were part. (61)
Starting with the statute of Anne, parties with an interest in the market created by the copyright legislation used the theories to make the policymakers and the general public believe that their favoured proposal was not driven by market interests but by higher morals, ideals, calculations to the benefit of general good, etc. A few examples will make the point.
A few years before the adoption of the Statute of Anne, the London publishers, members of the Stationer’s Company, were faced to witness the end of their licensing privileges after the lapse of the Licensing Act of 1662. At that moment Daniel Defoe had published his ideas about the author’s “undoubted exclusive Right to the Property” of her book. (62) Publishers grabbed the opportunity discuss the rights of the authors in the property of their books during the discussions regarding the adoption of the Statute of Anne. When petitioning the Parliament for the new law they did not even mention the revival of the licensing system of privileges. They advocated the position of the authors who were not protected. They were not, however, doing this for the sake of the authors, as they knew that a property right vested in the author could be transferred to the publisher. Authors would get one payment at the moment of the transfer, but the flowing royalties would come to the publishers. (63)
In pre-revolutionary France we can identify the same pattern: “Much rhetoric proclaiming the sanctity and self-evidence of exclusive literary property rights had infiltrated the copyright debate, most of it propounded by publishers invoking authors' rights for the publishers' benefit”. (64)The natural right theory became even stronger in France after the Revolution. It is true that the Revolutionary Enactments of 1791 and 1793 were inclined to protect the public interest more than the market rights, but this was one of the few times in the history of copyright when public interest was really at the centre of the stage.(65) Later, not only the natural rights theory prevailed because it granted the most extensive rights to the market players, but even the Revolutionary discourses were truncated: only the parts discussing natural rights were quoted while the parts discussing public interest were “forgotten”. (66)
The intertwining of copyright rhetorics and market interest is most obvious in the history of US copyright policymaking. Although the Copyright Clause in the Constitution appears not to have been drafted with particular market interests in mind, the following enactments, especially after and including the 1909 Copyright Act, constitute examples of typical policymaking regarding copyright. (67) Ever since 1909 the history of copyright law in the United States is a history of negotiations and compromise between parties with an interest in the market.
The pattern was, and still is, the following: a new copyright law is adopted trying to balance the market interests of the time of adoption; then a new technology is developed threatening the settled balance in the market because new players taking advantage of new media forms want a piece of the revenue cake; the old players and the new players are all unhappy – the former because they are loosing ground, the latter because copyright acts like an entry barrier to the market; the Congress, because of lobbying campaigns and political finance influence, feels that it is time to act and rebalance the copyright legislation; the old and the new players present their demands to the Congress and negotiate between them; when the players reach a compromise regarding how the new law should look like the compromise becomes law. (68)This kind of legislative process leads the unnecessary complication of copyright laws, rendering them inaccessible to the layman. This happens because in the process of negotiating the old players want to maintain the old privileges embodied in the existing law while the new players want new provisions added. (69)
The practice of gathering all the interested parties at the negotiation table began with the 1909 Copyright Act. (70)Though the new types of media had been developed, broadcast and motion picture industry representatives were not invited to the negotiations. Later on, the radio, the jukebox, and the television were invented. All of these new industries had to try to fit in the narrow confinement of a statute negotiated between the older industries.(71) Of course long negotiations between the players in the market followed, but nothing changed in the way policymakers looked for solutions. Congress asked the market players to come with negotiated solutions and to compromise between them. The resulting 1976 Copyright Act looked more like a contract between private parties – long and complicated – than like a short and easily understood norm for the general public.
Throughout the history of United States copyright the negotiating industry players used in their discourses the various theories described above. (72) As professor Litman stated: “In the ongoing negotiations among industry representatives, normative arguments about the nature of copyright show up as rhetorical flourishes, but, typically, change nobody’s mind.” (73) However this was true only at the negotiations table. The public needed some explanation for the changes in legislation, which was provided by the theories or rhetorics of copyright. Before the 1970s a simple version of the utilitarian theory was presented to the public. Copyright legislation was a bargain between the public and the authors. The state granted some exclusive rights to authors in exchange of the public use of the work. The exclusive rights of the author did not extend to every possible use of the work. The public could use a work freely in many different ways, especially under the doctrine of fair use. After the 1970s copyright owners began to switch to a doctrine that was more favourable to them: an economic theory of copyright. Under this theory the more you give incentives to and protect the authors, the more works will be created. The new model is more favourable to the market players but the public interest is no longer a major factor in the model because copyright law is no longer a bargain between the authors and the public. (74)
Perhaps, theoretically, a compromise between all relevant players, as the compromise through which copyright legislation developed, would work. However, in our case the most significant market player was missing: the public, the many who use the works.(75) A compromise cannot work without all the relevant parties.
European authors, after establishing the ALAI, began to lobby for the international recognition of their rights based on the theory of property as natural right. This theory was the most convenient for them at the time, as it called for a grant of a perpetual property-like right by the policymakers. Moreover the authors were asserting that their rights were not a concession of the law but a form a property and therefore the legislators should recognize them as such for a perpetual term. (76)
The above examples show that the copyright evolved to the institution we know today mainly as a result of the bargains between market interests and not because justification theories had a major role in shaping this area of law.
(1) See CRAIG JOYCE ET AL., COPYRIGHT LAW 15-19 (5TH ED. 2000).
(2) MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 10 (1993).
(3) Id. at 10.
(4) Id. at 11.
(5) See A. LUCAS, H.-J. LUCAS, PROPRIETE LITTERAIRE & ARTISTIQUE 4 (1994)
(6) ROSE, supra note 2.
(7) ROSE, supra note 2.
(8) See Jane C. Ginsburg, A Tale Of Two Copyrights: Literary Property In Revolutionary France And America, 64 TULANE L. REV. 991, 1014 (1990).
(9) LUCAS, supra note 5, at 15.
(10) ROSE, supra note 2, at 110, 111.
(11) Id. at 111, 112.
(12) LUCAS, supra note 5, at 18-20.
(13) See Paul Edward Geller, Copyright History and the Future: What’s Culture Got to Do with It?, 47 J. COPYRIGHT SOC'Y U.S.A. 209, 220 (2000).
(14) SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, 21 (1987);
(15) Id. at 19.
(16) Id. at 22-37.
(17) Id. at 35-37.
(18) Id. at 39-41.
(19) Id. at 46-49.
(20) Id. at 49-80, 79.
(21) E. Ulmer, One Hundred Years of the Berne Convention, 17 INT'L REV. INDUS. PROP. & COPYRIGHT L. (IIC) 707, 708 (1986).
(22) Id. at 709.
(23) Peter Burger, The Berne Convention: Its History and Its Key Role in The Future, 3 J.L. & TECH. 1, 18 (1988).
(24) RICKETSON supra.note 14, at 80.
(25) Ulmer supra note 21, at 709.
(26) Id. at 710.
(27) Id. at 710.
(28) Id. at 711-712.
(29) JOYCE ET AL., supra note 1, at 24.
(30) J.A.L. STERLING, WORLD COPYRIGHT LAW 501-523 (1999).
(31) Id. at 19-20.
(32) JOYCE ET AL., supra note 1, at 34.
(33) Jane C. Ginsburg, International Copyright: from a “Bundle” of National Copyright Laws to a Supranational Code?, 47 J. COPYRIGHT SOC'Y U.S.A. 265, 266 (2000).
(34) Id. at 266.
(35) Id. at 289.
(36) Jacqueline Lipton, Copyright in the Digital Age: A Comparative Survey, 27 RUTGERS COMPUTER & TECH. L.J. 333, 345 (2001).
(37) William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY (Stephen R. Munzer ed., 2001), available at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher (last visited March 25, 2002).
(38) JOYCE ET AL., supra note 1, at 61.
(39) Id. at 61.
(40) Id. at 61.
(41) William M. Landes, Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 325 (1989), available at http://cyber.law.harvard.edu/ipcoop/89land1.html (last visited March 25, 2002).
(42) Id. at 2.
(43) Id. at 8.
(44) Id. at 2.
(45) Id. at 40.
(46) Steve P. Callandrillo, An Economic Analysis of Intellectual Property Rights: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System, 9 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 301, 304 (1998).
(47) Edmund W. Kitch, Elementary and Persistent Errors in the Economic Analysis of Intellectual Property, 53 VAND. L. REV. 1727, 1729 (2000).
(48) Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 306-307 (1996).
(49) Id. at 309.
(50) Id. at 310.
(51) ROSE, supra note 2, at 30-48.
(52) See Wendy J. Gordon, A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, 102 YALE L.J. 1533 (1993).
(53) Fisher, supra note 37, at 9-10.
(54) JOYCE ET AL., supra note 1, at 65.
(55) Fisher, supra note 37, at III.C.
(56) JOYCE ET AL., supra note 1, at 63-66.
(57) Fisher, supra note 37, at 12.
(58) Netanel, supra note 48, at 288.
(59) Fisher, supra note 37, at III.D.
(60) JOYCE ET AL., supra note 1, at 69.
(61) JOYCE ET AL., supra note 1, at 61.
(62) ROSE, supra note 2, at 35.
(63) ROSE, supra note 2, at 35-48.
(64) Ginsburg, supra note 8, at 997.
(65) Cf. Ginsburg supra note 8, at 1006 (arguing that public interest was very important in enacting the French Revolutionary laws of 1791 and 1793).
(66)Id. at 1006-1007.
(67) See JESSICA LITMAN, DIGITAL COPYRIGHT, 22-71 (2001).
(68) Id. at 22-71.
(69) Id. at 22-33.
(70) Id. at 38-40.
(71) Id. at 22-71.
(72) See supra Part 1.2.
(73) LITMAN, supra note 67, at 77.
(74) Id. at 77-87.
(75) Id. at 70-76.
(76) RICKETSON, supra note 14, at 46, 47.