Michal Shur-Ofry, 2008 Michal Shur–Ofry Hebrew University of Jerusalem WIPO SME Seminar, May 2008 Standardization in Copyright Law

Michal Shur-Ofry, 2008 Does Popularity Matter? The Argument: the most popular literary, dramatic, musical and artistic works should enjoy narrower copyright protection. Standard Works – A Broad Perspective: – Utilitarian (Microsoft’s “Windows”, IMS’s pharmaceutical database, Sony’s Playstation) and Cultural (canonical texts - “I have a Dream”, national anthems, graphic icons) –Official (legislation, communication protocols, road signs) and “de-facto” Standards (Mickey Mouse, Barbie, “Windows”, “Happy Birthday to You” ; –Patterns and formats (cultural genres, television formats; databases’ structures) and “Winner-Take-All” works

Michal Shur-Ofry, 2008 “flipping copyright on its head” (J. Keeton - Lotus v. Paperback US) “It is fundamentally at odds with the scheme of copyright to accord lesser rights to those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike“ (Suntrust Bank- “Gone with the Wind”-2001-US); The fact that Donald Duck is “known to each and every child” does not turn it into a public domain” (Geva v. Walt Disney – Israel, 1992); The public importance and interest in a work “should not play a substantial role” in the copyright analysis (Estate of Martin Luther King, 1999-US) “This cannot be the law” (Engineering Dynamics-1994-US) The “Official Position”

Michal Shur-Ofry, 2008 Yet the Picture is More Complex.. Standard Works are sometimes afforded narrower protection (e.g. US - Veeck, Lotus, “Survivor” litigation, “Gone With the Wind”); lack of explicit recognition  vagueness and lack of coherency (US - Veeck ; Bender v. West ); a result which appears just and reasonable with respect to a Standard Work can have broader and problematic implications with respect to regular works (e.g. Lotus); confusing judicial rhetoric ; Standard Works are sometimes afforded full copyright protection (Israel - Donald Duck Case)  various difficulties

Michal Shur-Ofry, 2008 Lessons from Network Science: –Standardization and “Power Law” distribution characterize complex networks; –Strong connection between a work’s success and the structure of the social network into which the work is released; Popularity is Popular; Extreme popularity does not necessarily imply superior quality  tremendous success is – to a certain extent - arbitrary ; Popularity cannot be predicted Probing Into Popularity

Michal Shur-Ofry, 2008 Very popular works acquire communicative value, and become important vehicles in social interaction (“Network Value”); –Communication protocols, operating software, computer-game consoles; –Cultural Works – Smiley, Barbie, Statute of Liberty, “We Are the Champions” ; –Genres and Patterns - Databases’ selection and arrangement; television formats; “ Network Value” of Copyright Protected Standards

Michal Shur-Ofry, 2008 The Tower of Babel – “one language and few words”. (The Confusion of Tongues,engraving by Gustav Dore, 1865, Source: Wikipedia) Justifications for Limiting Copyright Protection of Standards

Michal Shur-Ofry, 2008 Access –Economic Perspective –Social Perspective –Democratic Perspective Lock-In Copyright’s Rationales –Incentive Theory; –Labor Theory; –Personality Theory Justifications for Limiting Copyright Protection of Standards (Cntnd)

Michal Shur-Ofry, 2008 A Proposed Model for Narrowing Copyright Protection of Standards Works A Flexible Model – enabling a range of outcomes Factors : a) Network Value v. Inherent Value ; b) Complexness ; c) Nature of Standard Work (copyright protection more easily limited with respect to utilitarian rather than cultural Standards; with respect to official rather than de facto Standards, and with respect to Standards constituting patterns and formats rather than Winner-Take-All works ) ; d) Nature of Use of the Standard Work

Michal Shur-Ofry, 2008 Summary In Copyright Law – Popularity Matters. see also –Michal Shur-Ofry "Popularity as a Factor in Copyright Law” -