Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information

Abstract

TRANSNAT'L L. 579, 583 (1996) (explaining that the origin of copyright law was in the context of "publishing, theater, motion pictures, music, and art"); J.H. Reichman, Goldstein on Copyright Law: A Realist's Approach to a TechnologicalAge, 43 STAN. L. REV. 943, 947-49 (1991) (describing tension between the utilitarian incentives and cultural policy). Since 1879, the Supreme Court has tried to insulate the general products market from the potential anticompetitive effects of these same cultural policies that otherwise control the market for literary and artistic works. See, e.g., Baker v. Selden, 101 U.S. 99, 104 (1879) (holding that copyright subsists in the expression of a work and not the underlying function of its useful aspects). 57 The few cases that deviated from this proposition by protecting facts as such were overruled by Feist, for the view that such protection should have continued, see Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REv. 338, 343 (1992), which advocates a greater role for copyright law as a potential regulator of information in the modern period, and Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 COLuM. L. REV. 516, 516-17 (1981), which supports the proposition that the collection of facts should be protectable even when the arrangement does not meet the originality standard. See U.C.C. art. 2B Preface: Information Age in Contracts, Introduction (Proposed Official Draft Aug. 1998) (discussing the subgroup of transactions covered in article 2B) (omitted in Feb. 1999 draft); supra text accompanying notes 52-53. 59 An exception was the copyright law of the United Kingdom, which does afford relatively strong copyright protection to uncreative information products. See, e.g., Geller, supra note 39, at 54 (noting the U.K. copyright protection of uncreative information products, a position that now conflicts with the E.U. Directive on Databases).

Access to scholarly publications in the global North and the global South—Copyright and the need for a paradigm shift under the right to science

“…Concerning the prices libraries are charged for access to subscription publications, price control could be implemented. A tribunal could find fees to be unreasonable (Reichman and Franklin, 1998 , p. 930) or anticompetitive (Hilty, 2009 , p. 641 ff). Secrecy clauses in licensing agreements could be forbidden to ensure transparency and prevent price discrimination (Taubert, 2017 , p. 89).…”

“…Copyright law should further allow remote access to library collections (Statement on Copyright and Proposal of a Waiver, 2021 ). The contractual restriction or exclusion of limitations and exceptions for research should be forbidden (Reichman and Franklin, 1998 , p. 929–931, 946; Hugenholtz, 2000 , p. 81; Reichman and Okediji, 2012 , p. 1447). Under the E.U.…”

Commodification of the Information Profession: A Critique of Higher Education Under Neoliberalism

“…As Reichman and Franklin (1999) note, "[w]e should not forget that information remains a public good" (p. 969). The premise of information, particularly information and knowledge communicated by researchers from publicly funded institutions, as a public good is an important ontological one.…”

“…The foundation of information as social, being between people, and of value to the public, emphasises that it is a process rather than a finished product. Reichman and Franklin (1999) go on to identify very clearly the sociopolitical tensions for commodifying such information, as "every decision that overprotects public goods in order to stimulate investment also creates disincentives to use those public goods owing to rising costs" (p.969). This adds a further problematic layer to the creation of pricing for academic information as commodity.…”

Information commons

“…When transmitted, information often exhibits network externalities-that is, its value can escalate with increased use (Benkler, 2003b;Lessig, 2001;Mosco & Wasco, 1988;Stiglitz, 1999). Commodifying information also overlooks its importance as a constitutive force of society as well as its significance to innovation and creativity (Braman, 1989;Reichman & Franklin, 1999).…”