US leadership in the global copyright debates – the Green Paper on Copyright 2013/2014
Gespeichert von Prof. Dr. Thomas Hoeren am
Deliberately written in English: Just visiting Stanford Law School I got into contact with the present US discussion on a new Copyright Act. The US Department of Commerce installed in 2013 a Internet Policy Task Force (Task Force) which released in July 2013 a Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper).[1] The Green Paper mentioned the following topics on which the Department would conduct more work:
- "the legal framework for the creation of remixes;
- the relevance and scope of the first sale doctrine in the digital environment;
- the appropriate calibration of statutory damages, in the contexts of individual file sharers and of secondary liability for large-scale online infringement;
- improving the operation of the Digital Millennium Copyright Act’s (DMCA) notice and takedown system; and
- how the government can facilitate the further development of a robust online licensing environment."
The Paper was discussed in several workshops until July 2014 (I had the chance to listen to one of these sessions).
I don´t want to discuss all the items mentioned in the Paper. However, one sentence in the paper astonished me: “We hope the issues and findings discussed in this paper can serve as (… ) a beacon for U.S. leadership in the global copyright debates” (p. IV).
Well, well – US leadership in the global copyright debates: Of course, the USA are a very important country with a lot of national sophisticated experts in international IP debates. But leadership in copyright law?
Let us remember: The United States refused equal treatment for foreign authors for centuries (claiming that they cannot afford such as a protection for Charles Dickens & Co. as they are a developing country).[2] They only adhered to the Revised Berne Convention (RBC) in 1989 (however without changes as to moral rights). Since they entered the RBC, the WIPO never succeeded in finishing a new regulation in copyright law. The US tried to push their own views in copyright law by using secret diplomacy within the ACTA negotiations – but failed. The US copyright law is determined by the pressure of Disney & Co. (if you take for instance the so-called Mickey Mouse Act), by severe sanctions (such as statutory damages), by an unclear system of exploitation rights, by waivable and foggy limitations (such as “fair use”) and a missing concept of unfair contract terms regulations. The Green Paper however neglects recent trends in the EU and other non-US countries – of course on the assumption that the USA are the leader in global copyright debates. Which they are not!
[1] http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf
[2] See Charles Dickens und das internationale Urheberrecht, GRUR Int. 1993, 195 et seq.,