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

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IPR v HR

exclusive rights on PSI seem to clash with the HR claims

(freedom of expression / access to information)

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IPR v HR

the equilibrium between copyright and the HR seems

unfairly unbalanced towards copyright

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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

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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

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CreatorArgument 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

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UserArgument General criticism Applied to PSI

Harm

misrepresentation

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)

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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

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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

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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)

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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)

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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

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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