The need for patent reform has been repeatedly addressed over the past few years in Congress. The latest bill updating the Patent Reform Act of 2009 is the fourth consecutive attempt to restructure the patent law since 1952. Over the past fifty years, technology has dramatically transformed the market and has highlighted the dire need for patent reform.

Proponents of reform describe how the current system offers low-quality patents with broad claims, thus providing high earnings to manufacturers. With inconsistent court rulings, and common overcompensating damages, patents have in a sense strayed from the innovative purpose they were intended to promote. More recently, the Supreme Court has started to work towards improving patent quality and remedies.

The US Senate lead by Vermont Senator Patrick Leahy, Utah Senator Orrin Hatch and NY Senator Chuck Schumer have announced a bipartisan agreement to more directly address these problems. “The Patent Reform Act” aims to improve “patent quality” and to create an efficient system to enable a more strict granting of patents. Moreover, this Act serves to restrict damages calculations in many cases. With this system, broad claims will not succeed in deriving patents and will be prevented from hindering innovation in the marketplace.

Among the various reforms, this Act creates a “first-window post-grant process” which is meant to provides a method to challenge patents that should not have been created in the first place. Additionally, the Act changes the law to give a patent to the first inventor that files for one and gives permission for other parties to challenge any of the pending applications. Furthermore, this Act will change the troubling and ineffective administrative review of patents; an adversarial inter-parties review led by a group of patent judges serves as a potential alternative to litigation. This Act hopes to restore the value of patents to serve their purpose. By reducing costs and creating a more productive process, the bill plans to create more jobs, and more freely allow for innovation.

Among the congressmen supporting the Act, various high-tech, pharmaceutical, and manufacturing companies as well as universities support this reform. According to Senator Leahy, the Act “is fair, reasonable and necessary for our continued economic development.”

Critics of the bill maintain that these revisions will work in favor of patent violators instead of inventors, and thus impede future innovation in America as it limits the patent owner from enforcing certain rights. Some argue that this reform should remain the task of the courts and not the congress. Others argue that the bill does not go far enough and lacks the proper reforms necessary to affect change.

If this bill passes, time will reveal as to how well these reforms advance the goals of promoting innovation and will demonstrate what reforms are still necessary. But until then, the debate will likely go on for some time.

The real threat to intellectual property are not new modes of distribution, but rather the blatant recycling — or better yet — the blatant regurgitation of preexisting works without regard for their original context. Nuances in duration and expiration in copyright (and it’s reform) don’t mean a thing if culturally we are aren’t equipped to reject false creativity. What’s the point of protecting something if we can’t agree on what’s worth protecting in the first place?

I want to “talk” about this conceptually — from the standpoint of a maker — in hopes of illustrating how lessening copyright restrictions and increasing distribution is ultimately better for cultural output. This would reject locking up icons, symbols and motifs in order to increase the public’s orientation towards original works of merit.

Here, Charles M. Schulz’s Charlie Brown and Matt Groening’s Bart Simpson are married to produce artist and designer Ethan Buller’s new collage. A highly sophisticated and playful illustration that — in the transparency of it’s references — becomes a NEW cultural product that (lucky for me) visualizes my very point. And, in doing so, is also illegal.

I would like to propose Kesha’s Tik Tok as the [legal] counterpoint to my argument that, like many things American, blatantly co-opt other global symbols that are then re-introduced back into pop-culture in order to produce commodity without thanks for the works original intention.

Kesha Tik Tok

Uffie The Party

The ensuing outcry following recent news about the Anti-Counterfeiting Trade Agreement (ACTA) between countries like the United States, Japan, Canada, Mexico, Singapore, New Zealand, and United Arab Emirates demonstrates just how relevant copyright reform is today. Proposed systems like the 2003 Public Domain Enhancement Act offer steps in the right direction. For example, the PDEA would require copyright owners to pay a $1 renewal fee fifty years after the work is first published, and another $1 every ten years afterwards until the end of the copyright term if he wished to retain the copyright over his work. Otherwise, the work would automatically fall into the public domain. I posit that such a system would be a good step, as it would, at least in theory, encourage copyright holders to consider the value of their work, if holding the exclusive right to a commercially unviable work is really worth restricting others’ use of the work. It would also serve to identify which works are protected, and provide information on how to contact copyright owners– which would serve copyright owners’ interests, as parties wishing to pay for the use of a work would be able to find them.

But while small steps measures like the PDEA are necessary and international trade agreements like ACTA are inevitable, we have larger debates to consider. How can we reconcile technologies like YouTube’s Content ID system with current copyright laws regarding fair use? When YouTube removed hundreds of Hitler “Downfall” videos yesterday, it relied on an algorithm to identify the use of a copyrighted work, but did not bother to identify whether any illegal activity had actually transpired. Now the burden is on the remixers to dispute the takedown. The Public Domain Enhancement Act would do nothing to prevent this detrimental behavior from happening.

And what about deciding which types of works deserve copyright protection? In Pamela Samuelson’s “Preliminary Thoughts on Copyright,” she mentions that in the past, people have been reluctant to make rulings on emerging copyright issues because they don’t know how the technology will develop. She notes that in a 1965 hearing, one man decided “it would be a mistake, in trying to deal with such a new and evolving field as that of computer technology to include an explicit provision [on computer-related uses] that could later turn out to be too broad or too narrow.” Making decisions on emerging and new forms of works can be nearly impossible, especially with the influence of industry (or not) lobbying for certain results. But what about works that have been around forever and have never achieved a definitive ruling. Consider fashion, for example.

Currently, there is no copyright protection for fashion, and certainly many designers consider their work worthy of the same protections afforded to architecture, which is protected under current law. In 2006, Congressman Bob Goodlatte introduced the Design Piracy Prohibition Act (DPPA), which would create a three-year copyright for fashion designs, and would arguably work to counteract counterfeiting in the industry. Producing a popular design requires a lot of effort and money and it is relatively easy for another designer to swoop in and recreate a successful item. While the industry has shunned such actions (see a recent New York Times blog post about this subject and other opinions) arguably, fashion designers would be spurred to innovate just because the fashion cycle turns so quickly, and new designs are always in demand. (Summer clothes just don’t work so well in winter…) Also, while the act would serve to protect the big players in the fashion world, indie designers would not have the legal resources to ensure that every one of their designs was not “closely and substantially similar” to an earlier work, and would be susceptible to legal intimidation that could prevent them for designing anything at all. For fashion, copyright would just harm the industry, waste resources, and provide no additional incentives.

That’s exactly the big picture issues we must consider now. The way we consume movies, books, podcasts, blog posts, news reports, songs, games, and other copyrighted works is changing rapidly, perhaps in the direction of the fashion industry. In many realms, we value most highly first responders and creativity, and the first responders actually serve to benefit from the dissemination of their ideas, or derivative works. We still throw around the statistic that only two percent of works between 55 and 75 years old continue to retain commercial value, but as we create more and more with new incentives (see the upcoming project on reputation economies) this no longer represents the truth. What percentage of Twitter posts retain commercial value even two days later? (Did you hear that Michael Jackson died?) What percentage of newspaper articles retain commercial value after a couple of months? We must reconsider the fundamental way we wish to protect these works. Before we can even work towards change, we must figure out what we want.

Earlier in the semester we read about the numerous extensions of copyright term in the twentieth century.  Often the reasoning for the extensions centered around compliance with some international standard.  The term was extended because otherwise “American artists would be at a disadvantage”.  That reasoning seemed strange to me, but I wrote it off as a rationalization for a decision that was motivated by thinly masked corporate interests.  Then predictions and leaks about ACTA started circulating, and it all got even more confusing.  Sense when did copyright enforcement require international cooperation and coordination?  I guess copyright is an issue with international scope, but it doesn’t seem like something that should be internationally enforced.  As a gut reaction, copyright just didn’t seem like an issue to be handled by a treaty.  An international summit did not seem like the appropriate venue to determine copyright policy that would be applied in the United States.  It felt strange to me, but I couldn’t really articulate why.

Then I read Lawrence Lessig and Jack Goldsmith’s article in the Washington Post, “Anti-counterfeiting agreement raises constitutional concerns”.  While reading that article I felt like a short kid standing behind a slightly taller and more articulate kid interjecting “Yeah, yeah, what he said” after each point the tall kid made.  Apparently there was a reason why I felt strange about ACTA: it’s enforcement would (possibly) be unconstitutional.  According to Lessig and Goldsmith, sole executive agreements have historically been used very rarely and for very specific purposes, and mandating copyright policies is not one of them.

Aside from the potential unconstitutionality of a sole executive order pertaining to intellectual property, intellectual property policy does not seem like a subject that is appropriate for international discussion.  It’s property law.  Copyright isn’t a human rights issue, it’s not something that has a “right answer” and “wrong answer”, there’s no good and evil.  Intellectual property is an abstract form of property that our government decided to protect in order to incentivize creation.  Even if you assume that every country wants to incentivize creation, not every country will agree on the most productive way to do that.  It’s nothing but strategy.  This means that even countries that share similar core beliefs may have different notions of how to protect intellectual property.  In Canada, for instance, there are special copyright rules for photography.  In Canada, the copyright of a photograph is owned by the person who . . . owns the camera? What?

This is a strange law, but is somewhat understandable considering the abstract nature of intellectual property.  There are no objectively right answers, so how can we internationally agree on one single policy?