Presentation made as part of a panel discussion titled ‘Copyright as an Incentive’ at the Brainstorming Session on the Future of Copyright, organised by Inter-University Centre for Intellectual Property Rights (IUCIPRS), Cochin University of Science and Technology, Cochin, Kerala, India, on February 27, 2019.

1. Arul George Scaria
National Law University, Delhi
‘Brainstorming Session on the Future of Copyright’,
IUCIPRS, Cochin (February 27, 2019)

2. Image source: https://pixabay.com/photos/book-bible-scripture-religion-1210029/

3.  Copyright and/ or stronger measures for copyright enforcement are
inevitable for incentivising creativity
 Most recent examples:
 New EU Copyright Directive
Snippet tax (Art. 11)
Mandatory filtering of user generated contents (Art. 13)

4.  Is the incentive theory a myth?

5. Image source: https://pixabay.com/photos/fashion-show-fashion-catwalk-model-1746621/

6.  “Piracy paradox”
 Induced obsolescence
 Anchoring
 Raustiala and Sprigman (2006)

7. Image source: https://pixabay.com/photos/mona-lisa-painting-art-690203/#_=_

8.  Visual art – “(1) a painting, drawing, print, or sculpture, existing in a single copy, in
a limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or
fabricated sculptures of 200 or fewer that are consecutively numbered by the
author and bear the signature or other identifying mark of the author; or(2) a still
photographic image produced for exhibition purposes only, existing in a single
copy that is signed by the author, or in a limited edition of 200 copies or fewer that
are signed and consecutively numbered by the author.”
 “The norm of authenticity”
 Adler (2018)

10.  Is copyright the incentive for writing academic works like articles/
books?
 Shavell (2010)

11. Image source: https://pixabay.com/photos/palais-garnier-opera-house-paris-1096888/

12.  Napoleon’s invasion of Northern Italy – 1796 to 1802
 Lombardy and Venetia adopted © law in 1801 v. 6 other states that adopted
© law 25 years later
 Historical data of 2598 operas that premiered across 8 states between
1770 and 1900
 Statistically significant increase in new operas in states that adopted © in
1801 (1.5 fold increase) – also better operas
 Subsequent extension of © term from ALT+10 years to ALT+40 years – no
effect on number/ quality of operas
 Giorcelli and Moser (2016)

13. Image source: https://pixabay.com/photos/social-media-digitization-faces-2528410/

14.  First digital disruption – Napster et. al. – result?
 Second digital disruption – Gathering of consumer data relating to
preferences and patterns
 Raustiala and Sprigmann (2019)

15.  Netflix - Taste clusters - Creative choices – Useful in purchasing
contents, to invest in production, to categorise content, and to
recommend it to viewers
 MindGeek – one step further – shapes the particulars of the content
 Use of algorithms and AI (particularly ML) for creation of content – do
they need any incentive?
 Raustiala and Sprigmann (2019)

16.  Risk of market success – IP may a play role in addressing this to some
extent
 Risk of market failure – for most creative works, the challenge is not
piracy, but lack of demand – No role for IP – data driven approaches
may address the risk of market failure! – implications for © law?
 Raustiala and Sprigmann (2019)

17.  What should we do in the emerging scenario?

18.  Revisit standards of originality
 Adopt shorter (and differentiated) terms of copyright protection
 Bring back the formalities for copyright protection

19. ThankYou!
 arul.scaria@nludelhi.ac.in