Transcript & video: #epip2015 Closing Keynote by Pamela Samuelson (Berkeley)

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Transcript & Video of Closing Keynote by Pamela Samuelson (Berkeley Law)

Please note: Prof. Samuelson’s keynote was accompanied by slides, which are referenced occasionally.

I want to start by saying thank you to Martin and to the CREATe team for a really outstanding conference. I think this is a marvellous event that you’ve put together. I go to a lot of conferences myself and I pretty rarely come away with this much content and things to think about and stimulating ideas. I’m sorry I didn’t get to go to everybody’s parallel session but, as you know, there was a lot of competition. Martin had this really interesting idea, which was that I’d listen to a whole bunch of talks and so forth and then try to wrap up. That’s a risky thing for him and an even riskier thing for me since he had confidence that I would do a good job. I’ll give it my best.

So let’s start with an overview here and I’ll get right to it. It’s not a surprise to many of us, perhaps all of us, that, generally speaking, intellectual property policy making and copyright in particular tends to be driven by whatever major industry groups bring forward as proposals, and a lot of times that results from negotiation among the players. If they’re satisfied that’s good enough; very often what the industry asks for, it gets. Jessica Litman tells the story of that in the US in her book, Digital Copyright. If you look at probably the biggest copyright initiative of our lifetime, it really was the white papers and green papers in the US and the EU about digital networked environments. What you saw there was, oh my God, there’s no content on the internet—which is actually not true; but it was true that a lot of the major industries said, oh man, digital networked environments are really scary and there’s too much likelihood of infringement, so we need stronger intellectual property rights; we need to control all temporary as well as permanent reproductions of works and copies; and we not only are going to use technical protection measures, but we need reinforcement from the law about those technical protection measures through anti-circumvention rules that didn’t have anything to do with infringement.

If you compare the draft [WIPO copyright] treaty that was under consideration in 1996 and the actual treaty that was adopted, you have to say that the actual treaty that got adopted is a lot better than the treaty that was proposed, a lot more well balanced. But that wasn’t because of any kind of empirical evidence that more, or less, or different kinds of intellectual property protection were needed. It was simply the case that there was enough of a coalition of certain Nordic countries, certain developing countries, Internet intermediaries and telephone companies that got together to counterbalance the interests of mostly the entertainment industry. So we ended up with a reasonable treaty, more as a result of counter-lobbying than because we had any kind of empirical data.

I won’t go through the story about the Information Society Directive. I think it’s less balanced than the WIPO Copyright Treaty that it was supposed to be implementing. The Digital Millennium Copyright Act also ended up not being as well balanced, at least on the anti-circumvention dimension, as it might have been. The only interesting thing from my standpoint about the DMCA anti-circumvention provisions in the United States is that it set up a triennial review process so that people who thought that technical protection measures were in fact impeding lawful uses of copyrighted works could come forward and offer evidence to show that in fact there’s this impediment and to ask for an exemption so that they could engage in certain activity. Every three years the Copyright Office actually issues some exemptions. It’s created a kind of public record of the kinds of activities that the anti-circumvention laws arguably reach. The latest, most amusing ones are from John Deere Tractor Company and from General Motors and the Auto Alliance, basically saying that it’s really dangerous and a violation of the anti-circumvention rules to tinker with software in your car or in your tractor, even if you’re trying to do it in order to repair something. So if you are looking for a hoot, I would go to that website.

I guess I’m preaching to the converted here about why evidence is needed. I think that one thing that we can say pretty clearly is that the copyright industries used to be a pretty backwater, small segment of economies. They have gotten a lot bigger. IP intensive industries are now critically important to the ongoing innovation environment and so we want to be able to promote innovation. Rapid technological change and disrupted markets make copyright policy making awfully difficult. I note that Ian Hargreaves, in his opening remarks, talked about the risk that I think the European Union faces of digging itself into a digital black hole.

If you look at some examples, you may have your own favourite examples, when there isn’t evidence based IP rules, you end up often with bad rules. From my standpoint, the European sui generis database protection legislation is a good example of something that, in theory, sounded like something that was really needed, but in fact if somebody had done a really close study of the database industry, I’m not sure that we’d have ended up with the kind of law that we had. Certainly, evidence based objections to the database sui generis right were the basis on which the US decided not to do that. Also difficult to support under evidence based systems is extensions of copyright terms, or the related rights in sound recordings, and (for me) higher statutory damages awards in the United States (fortunately you don’t have this, so this is a particular problem you don’t have, although the US keeps wanting to export it). There are a number of other examples, I’m sure, that you could give in the copyright space.

Evidence based intellectual property policy making is not as unfamiliar to folks at this conference as it is to many other people, but it’s certainly the case that empirical work tells you something about the world., Understanding the world a little better is a good idea if you want to regulate it well. Part of what I noticed in attending some sessions and reading about some of the papers that I wasn’t able to actually go to here, was how many different types of empirical methods that people are using: surveys, statistical analyses of data sets, qualitative interviews with human subjects, comparative studies and analyses, case studies, lab experiments [are] the types of empirical work that people are doing. I’m especially encouraged to see young scholars and even graduate students doing some really outstanding and interesting work.

Sometimes evidence does matter and even though it didn’t matter with the sui generis right on databases, I think that we have seen some examples recently. The Hargreaves Report, in particular, gave a boost to this particular type of approach. I’ll go through just briefly some of these things.

The question that Hargreaves was asked to address was whether the current intellectual property framework was well designed to promote innovation and economic growth and if not, what measures should be taken to change things. That’s a really good question, and it’s a question that I hope will spread to other copyright reform initiatives. Very plainly, the report said that evidence should drive policy and then it articulated a set of proposals that would bring about a copyright regime better suited to innovation and economic growth.

The U.S. Congress has not been willing to pass the fashion design protection legislation that some in the fashion industry were promoting, because the data really don’t support it, and that’s been really important to see. One mechanism that we have in the United States that isn’t available in Europe–and, from my standpoint, is unfortunate– is the opportunity to file amicus curiae briefs, that is, friend-of-the-court briefs, such as the one that tech companiesfiled in the MGM v. Grokster case. That was a case in which the entertainment industry was really looking to throw out the rule that says that a technology with substantial non-infringing uses can be sold in the marketplace because of the demand that may exist for the non-infringing uses. Even if a lot of people use it to infringe, that’s not a reason to say that the technology itself should be illegal or that you should base liability on the design of the technology insofar as it enables people to infringe. It was a really important moment when the Supreme Court preserved the Sony safe harbour for technologies with substantial non-infringing uses. I think the Supreme Court in that case was swayed by the uniform insistence by the technology industry, including Microsoft, IBM and many other big companies, that the Sony safe harbour was essential to preserving innovation and competition in the software industry.

One other example of where evidence made some difference is the computer science community came together around why the Stop Online Piracy Act was fundamentally inconsistent with an initiative that had been going on for years to try to improve security in the domain name system. The evidence that SOPA and PIPA would actually be destructive to network security ended up being something more than just, oh, the popular press raised questions about it and now individuals are getting in touch with Congress. This was actually a substantive reason to be against that particular initiative.

Now that 2018 isn’t that far away, those of us in the United States who didn’t think much of the Copyright Term Extension Act in 1998 have some reason to be concerned about a new 20 year extension. (Mickey Mouse really wants to get in the public domain. I know him personally.) So the question is, is that going to happen again? Now an argument that was important in the last round was actually that, oh, copyright is really necessary for cultural stewardship and for making works available. I think work by Paul Heald, among others, is really showing that that’s not true—that works in the public domain are more available than works that are in copyright. So how copyright makes works disappear is something that I think will get Congress’ attention more this time than it did in 1998.

There’s a very interesting article that Robert Kastenmeier, a former Congressman in the US, and Michael Remington, who was his chief counsel, had written after the passage of the Semiconductor Chip Protection Act. One thing that they did was call for a kind of evidence based intellectual property policy, and while they were talking about sui generis rights, I think that the framework that they establish is actually one that applies beyond that. So any time a new right would be created or a right extended, I think asking these really tough questions—Are we in a swamp where the rights are going to be unclear, where it’s going to be disruptive? Or are we are on firm ground, keeping things consistent with traditional principles?—is something that’s really important. More attention to cost benefit analysis, I think, would be important going forward.

So I looked at the programme and said to myself: What was I expecting to see at EPIP that I didn’t exactly see? I know that the digital single market is a big deal out here. It’s not that it wasn’t mentioned at all, but this community of people, it seemed to me, would be well situated to talk about what the barriers are. If you were going to try to erode or change those barriers so that eventually you could get to that digital single market, what would a strategy look like to do that? Maybe that’s too ambitious, but I think it’s worth actually seeing whether EPIP scholars can come up with some ideas.

I also was really expecting to see something about the Copyright Hub, which has now launched in the UK. What’s going to happen with that, and if it’s not happening, why isn’t it happening? Because there are lots of people out there trying to look for examples of licensing initiatives.my government, at least Maria Pallante, head of the Copyright Office, wants the United States to develop an extended collective license regime for making literary works more broadly available. I have some reservations about that, but I’d feel a little better about it if I saw, at a place like EPIP, a set of studies that show that actually things are working well in that dimension.

Noticeably absent to me also were the studies growing out of the big consultation that the European Commission did about copyright reform issues. There’s a lot of data on the Internet about what people were thinking and why they thought this rule ought to get changed or not get changed. It seems to me that would have been a fruitful set of things to talk about. Maybe anti-circumvention rules are more of interest to Americans than to Europeans, but at least in the United States, concerns about ways in which the overbreadth of the anti-circumvention rules are in fact impeding valuable research and innovation seems to me to be something that maybe is just not a big deal over here; I don’t know.

Now, everybody was saying, oh, evidence based IP, yes, I believe in that particular approach. But I think that it’s worth thinking just a little bit about whether there are risks or at least something to be concerned about when you start thinking about it. One thing, and this comes from my own personal experience, is that I don’t have all the skill sets that are necessary in order to do some of the kinds of ambitious empirical work that I might want to do. So I look around the world and I have to say I need to partner with people. Fortunately I was able, with the Berkeley Patent Survey, to partner with Stu Graham and a couple of other colleagues when we did our study of high tech entrepreneurs and the IP system.

But of course, one of the dangers of not having deep methodological skills for doing empirical work also is that it’s hard to know how to interpret the data. Data isn’t exactly the same as evidence, and so what is it that makes the difference? Obviously the details of interpretation are important and being careful about how to interpret the data. If there is an ambiguity, the temptation is to construe the ambiguity in the way that you’d like to see the data show. We had an instance of that when we did our Berkeley Patent Survey because a substantial percentage of the people who answered the survey said that they didn’t seek patents because they didn’t think something was patentable. Now that’s ambiguous. Did they think that patents are bad for software industry? That’s what I think, but I was trying not to put my own interpretation as the preferred interpretation. So I said, this is ambiguous: it could mean this, it could mean that, it could mean this. We’ll see how easy it is, though, to slip into what we want data to say.

Empirical studies always have some flaws. The more ambitious your study and the more the study calls into question what some actors want to hear, the more likely it is that you’re going to be challenged in terms of your sample, your sample size, your sample methodology, noise in the data and your interpretation. So that’s something to watch out for too.

Also one thing that happens is that you get drawn into other people’s studies. So you might think, I want to do this one empirical study and I’m going to do it and I’m going to say what I think it means. But of course if other people start doing studies, then you have to respond. So you’re getting yourself into what could be for you a swamp, if you don’t want to do a lot of empirical work in the future.

And of course there are lots of things that would be useful to study or that would be useful to know that are difficult to study. One session held at EPIP focused on re-conceptualising the economic rights of copyright, which is a study that doesn’t lend itself to good empirical work. It’s really a different kind of exercise and there are lots of reasons why copyright industries are difficult to study, and I mention a couple here [on the slide]. Of course, Joel Waldfogel also tells us a lot of the data that we’d really like to have access to is proprietary and won’t be shared, at least very often.

For at least some of the people who are here, copyright’s not just about the economic rights. It has a kind of cultural and personal value. That means that evidence based approaches, which often tend to be focused on economic issues, are not things that are going to surface those values.

A last set of things that I want to say a few words about is that most of us who do intellectual property work are speaking to each other. That’s actually a good thing to a large degree. But if you think that your work has policy relevance—“I collected this evidence because I want to support this particular policy”—just writing articles to your colleagues is not going to do the work. So part of what you need to do is begin to think about how else to reach the policy making community. One thing you can do is publish things in venues where they will read your work. Another is to learn how to do what in the United States we call “two-pagers”, which is distill everything down to the crispest form and say why the data that you have support it.

I had an experience back in 1996 where I said to myself, I really need to reach the broad tech user community and computer science community. I need them to know how bad the white paper on Intellectual Property in the National Information Infrastructure was. So I wrote a paper that was published in January of 1996 in Wired magazine. The title was “The Copyright Grab.” I agonized over this article really a lot. The reason was because it was a popular article and I jazzed up the language a little bit and used some metaphors that are a little bit stronger than anything I’d done in my other work. And I actually felt like, this is the end of my career as a serious academic; no one will ever take me seriously again in my whole life because I’m publishing in Wired magazine and because I used these words “copyright grab”. It turned out not to be true but it was an anxiety that I had. I give that example to say it’s not the end of your career if you do something that’s more popular press.

We heard earlier about make things as simple as possible but no simpler. It cannot be said better than that. No equations when you go talk to policy makers, unless they are fellow equation speakers.

Think about who else besides you out there is interested in the approach that you are taking and the evidence that you think that you have gathered. Work with them, because they may be better able to translate your evidence based stuff into the policy arena. One thing that occurred to me is that maybe next time it would be a good idea to have a panel where you ask the policy makers—What is it that you guys [EPIP scholars] could do that I [the policy maker] would actually like to know about, and what of the efforts that you’ve made to communicate with me before about IP policy have not been very helpful to me—because that might actually give you a better sense about how to make a contribution.

Concluding thoughts: I think this conference is a great forum for exchange of ideas. The fact that you’ve been able to attract a couple hundred people from different sectors—lawyers, economists, other social scientists and researchers, some industry people and some policy makers—that’s really unusual and so it is a really special, special thing. I wish there was something like this in the United States. There really isn’t. So keep up the good work.

I think that evidence based IP policy is a theme worth pursuing. It’s not always going to win but it gives this community something useful to debate and to offer to policy makers. Like Julia Reda, I think reform is possible but it’s not going to be easy, and generational change will probably make more of a difference than anything we write today. Thank you.