Justification of Copyright as to PSI
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Justification of Copyright as to PSI

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Lapsi 09072012 - Public Sector Information and copyright

Lapsi 09072012 - Public Sector Information and copyright

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Justification of Copyright as to PSI Justification of Copyright as to PSI Presentation Transcript

  • Justification of Copyright as to PSI Donatella Solda-Kutzmann LAPSI 09.07.2012 Friday, June 27, 14
  • IPR in PSI there is a general assumption that part of PSI is protected under IPR regimes •official documents •raw data •databases Friday, June 27, 14
  • IPR v HR exclusive rights on PSI seem to clash with the HR claims (freedom of expression / access to information) Friday, June 27, 14
  • IPR v HR the equilibrium between copyright and the HR seems unfairly unbalanced towards copyright Friday, June 27, 14
  • Justifications of IP applied to PSI - Creator and claims to her work - Unauthorised user, and the purported wrongfulness of her behaviour - Community and its needs of steady supply of intangible assets Friday, June 27, 14
  • Argument General criticism Applied to PSI Creation Desert “we are entitled to control what we create provided we cause no harm by this claim” -Hume “is-ought” argument -not always possible to distinguish the creative part (elements of an intangible asset for which the author is genuinely responsible) -Creation doesn’t necessary imply control -the harm could be read in the undermining the economic potential of the PSI -reward for her efforts in producing it -Deserves control because of the investment in its production -Reward for the contribution to the culture -Need in the creator for identification with the intangible (and she may deserve to have her need met) -Effort: which threshold for the intangible to be protected? (little effort -> no protection = rewarding only the perspiring, not inspired author) -Investment: some protection may risk to protect economically inefficient creators (and doesn’t take account of the proportionality of wealth for creators) -Contribution: some contribution are detrimental to the society (commercial on cigarettes, violent movie) -Identification: doesn’t justify in itself the power to control Public bodies do not need to be rewarded, but just tax-funded - as they collect and manage PSI to serve the society. Creator Friday, June 27, 14
  • Creator Argument General criticism Applied to PSI Personhood Autonomy The act of creation entails the embodiment of the personality of the creator in the intangible (usually grounds moral rights) It justifies granting control over the use of an asset but it surely cannot justify granting the power to transfer control over that use Inalienable - at best waived -all kinds of property are justified by a respect for personal autonomy -Need to secure the expressive autonomy of an author -if a creator can show a close association with a particular intangible, then respect for her personal autonomy may require that she be given at least some degree of control over its use (Locke/ person has a right in her person and thence her labour; Hegel/ property helps individuals to develop as autonomous persons by carving out an area over which they can exercise their will): arguments are widely discussed and not completely accepted -Expressive autonomy implies the author rights to be associated only to a message she intends to convey The control over the use of the creation based on the (expressive) autonomy may imply that the public body uses a discretionary method to grant a second use of the work - while PSI rules call for non- discriminatory use Friday, June 27, 14
  • User Argument General criticism Applied to PSI Harm misrepresent ation Unjust enrichment Unauthorized user causes harm to the creator by the mere use - while preventing further use does not provoke any harm to the would-be user -Circular argument non use of PSI clashes with HR of access to/ freedom of information If unauthorized use of an intangible constitutes a misrepresentation of some kind that is likely to cause harm, this may be ground for preventing the unauthorized use moral rights attribution of moral rights to Public Bodies is unclear Unauthorized user of an intangible receives a benefit from its use and thereby “reaps where she has not sawn” -Cumulative creation is not only inevitable, but desirable (gift economy) -It doesn’t justify control, but just a compensation for what was sawn If needed for a sustainable system, fees / fares might have the characteristics of an administrative payment (not based on copyright) Friday, June 27, 14
  • Community Argument General criticism Applied to PSI Intangible assets are described as public goods, ie. non-rival and not excludible, which may provoke market failure: under-production (as the impossibility to exclude non- purchaser is no incentive to create and to disseminate the assets) and inefficiently exploited (deadweight loss associated with giving an IP owner exclusive rights to use an asset are said to be justified as a means of curing the relevant market failure) Government intervention for production of those assets is a typical example of correcting the tragedy and curing the market failure Friday, June 27, 14
  • Creation without incentive Argument: IPR are needed as an incentive to create • some product is a by-product of another activity and its creation requires no additional incentive; • in the case Public Bodies are sometimes the only possible producers of such information Friday, June 27, 14
  • Dissemination without incentive Argument: IPR is an incentive to publish/share the creation. PSI information needs to be shared for • transparency / accountability reasons • political priority (to enhance digital market) Friday, June 27, 14
  • Alternative models Information Commons (IPR or contractual nature) - public ordering solution (new category like DB) - private ordering solution(PSI commons agreement compatible with 27 MS legislations) Friday, June 27, 14
  • Information Public Sector Information CommonsInformation Public Sector Information Commons Within Copyright Outside copyright - a given community decides to manage a resource in a collective manner, with a special regard for equitable access, fairness and sustainability - purely voluntary social scheme, and they require some legal boundaries to prevent misuse, such as privatisation, vandalism and free riding - In relation to information, the notion of Commons has been variously employed, also in relation to some uses of the Public Domain - Information Commons are typically enforced through the rules of copyright, but the contractual nature of the agreements used to regulate them is also considered - a given community decides to manage a resource in a collective manner, with a special regard for equitable access, fairness and sustainability - purely voluntary social scheme, and they require some legal boundaries to prevent misuse, such as privatisation, vandalism and free riding - In relation to information, the notion of Commons has been variously employed, also in relation to some uses of the Public Domain - Information Commons are typically enforced through the rules of copyright, but the contractual nature of the agreements used to regulate them is also considered Friday, June 27, 14
  • Information Public Sector Information CommonsInformation Public Sector Information Commons Within Copyright Outside copyright the agreement granting the use of PSI would be non-transactional and non discriminatory paying public domain: from royalty-based to compensation for use. The agreement, similar to compulsory licensing but shaped on the theory of liability rules, would allow a greater accomplishment of freedom of expression claims. the agreement granting the use of PSI would be non-transactional and non discriminatory paying public domain: from royalty-based to compensation for use. The agreement, similar to compulsory licensing but shaped on the theory of liability rules, would allow a greater accomplishment of freedom of expression claims. Friday, June 27, 14
  • Information Public Sector Information CommonsInformation Public Sector Information Commons Within Copyright Outside copyright Quantitative research to be made before the potential revision of the PSI Directive to assess what is the road to follow Quantitative research to be made before the potential revision of the PSI Directive to assess what is the road to follow Friday, June 27, 14