So, welcome everyone to the Combined Classes in Copyright and Professor Okadachi's course on International Intellectual Property. And welcome through the internet to those who are watching the presentation via webcast or who will be watching it later in recorded version. We come together from these various sectors to hear a presentation by a remarkably well-informed and well-positioned expert in intellectual property in general and copyright in particular. Shira Perlmuter has been in this field for a very long time occupying high-level positions in many of its sectors. So after graduating from Harvard College and the University of Pennsylvania Law School, she practiced law in New York City for some years specializing in copyright law, trademark law and international intellectual property. At the same time, she began advising government agencies and teaching. So she moved on to be a professor of copyright law at Catholic University, was a consultant to the Clinton administration in 1994-95, which as some of you know and she may explain in her talk in more detail was an especially important year in the negotiation of copyright reform. She has been periodically and currently a consultant to the World Intellectual Property Organization in Geneva. She then went, as we say in the trade, in-house and was vice president and associate general counsel for intellectual property at Time Warner, which as some of you may remember is one of the players in the Viacom YouTube case we discussed yesterday. She then became the executive vice president for a global legal policy at the IFPI, the parent organization of the RIAA, so managing the fraught intellectual property status of the entertainment industry throughout the world. Currently she is the chief policy officer and director for international affairs at the Patent and Trademark Office in the United States, where she oversees a remarkably diverse portfolio including all international and domestic policy related operations, education and training, special interest to me, and the economic analysis carried on in the office by the chief economist. So through this extraordinary professional tour she has encountered virtually every one of the issues that we've been discussing here. So she's going to give a presentation, after which we're going to have a discussion. We'll already have some questions for her from the online audience and I hope each of you are thinking as she proceeds through the talk about questions of your own. So please join me and welcome her. I think I'm live. So good morning. I'm absolutely delighted to be here. It's a real pleasure to be back at Harvard, back in an academic setting, and to have an opportunity to really start pulling together a lot of thoughts I've been having about some of the issues we'll discuss today. So the topic I'm going to address is current challenges in international copyright, a very broad topic indeed. So what I'm going to do is to divide the presentation into three general categories of challenges. And the first are structural challenges, having to do with the international legal framework and changes that have been happening in recent years and how it's constructed. Second, substantive challenges. What are the issues that are currently the subject of debate these days? And third, operational. And here I mean questions of application of the copyright system. How does it actually work? How are rights licensed and how is the marketplace developing? All three of these categories are shaped by two accelerating forces. And one is the globalization of markets, and when I say markets, I mean audiences. I'm not just talking about commercial markets. That in turn, the globalization is in part caused and facilitated and moved along by the second force, which is innovations in digital technology. Now neither of these is new. New technologies and globalization have been a driving force in copyright since its inception. But I think that today's versions, we would all agree, are exponentially faster and more powerful than ever before. So I'll address each of these categories and then end with some overall observations about where we're heading. Now I do wanna offer the opportunity, as I'm talking, if anything is unclear or if you have a follow up question about the specific matter I might be addressing, please do interrupt and ask your question. But as Professor Fisher indicated, there will also be an opportunity for questions and discussion afterwards. So let me start with the structural challenges. So the question here is essentially where and how is international copyright made? It's an interesting topic. It's a much more interesting topic now than I think it was when I was in law school. And let me start with a multilateral copyright treaties that are really the foundation of what you would start learning in an international copyright class. In the late 19th century, in response to the growth of international trade, there began to be perceived that there was a need for a set of international copyright rules. Essentially, authors were frustrated that their works were being copied and sold in other countries without any control and without any compensation. And until the late 19th century, there were some agreements among countries as to how to treat each other's authors, but that was generally done through bilateral agreements among individual countries. But in 1886, we had the adoption of the Bern Convention for the Protection of Literary and Artistic Works. And Bern was followed about 75 years later by the Rome Convention for the protection of performers, producers of phonograms and broadcasting organizations. And as many of you, if not most of you in the class know, these categories are protected through copyright in some countries, but through a separate body of law known as related or neighboring rights in other countries, and hence a separate treaty. Now, the important aspect of both treaties is that they were multilateral in the sense that they were negotiated by a large number of countries, open to virtually any country that wanted to participate. And governed by bodies formed under the auspices of an intergovernmental organization, what we know today as the World Intellectual Property Organization, or WIPO. The basic architecture of these treaties was similar. They set out national treatment as the central philosophy. In other words, the idea was we'll get together and agree that we will not discriminate against foreigners, against authors or works from each other. Second, they established a set of minimum rights to be provided to authors. The idea there was to provide a reasonably level playing field on the one hand, so that one country wouldn't be offering rights and the other country didn't. And also it ensured the most critical levels of protection to authors. So at least they would know that they could stop, for example, the reproduction of their works without their authorization. These rights were generally what are called exclusive rights. So they gave the authors the right to authorize these various acts with relation to their works, various uses of their works. But the treaties also allowed some ability for countries to substitute remuneration for control in specified areas. You'll also note that I talked about a set of minimum rights. It was understood in both treaties that countries could offer more rights if they chose to do so. The third important aspect of these treaties is that they did not permit formalities. And the problem was that up until that point, different countries imposed different types of formalities on the enjoyment or exercise of rights that might range from a registration requirement to requirements for certain kinds of markings on copies of the work. And because these formalities differed from country to country, this was very burdensome for an author when their work was entering into global commerce. So the treaties established a rule that formalities would not be permitted. And then finally, last but not least, they did talk about exceptions. And by and large, the way they dealt with exceptions or limitations on rights was to give policy space to member countries, to allow countries to put in place the exceptions that they thought appropriate to their own national circumstances. But within an outside limit, a boundary of what came to be called the three-step test. And that's a test that says exceptions are permissible as long as they do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. So they have to be special cases, not conflict with normal exploitation and not unreasonably prejudice the author's legitimate interests. And that basic architecture remained the template for more than a century. It's still in place. It's still very much the foundation of international copyright law. And it was the pattern for the 1996 WIPO Internet treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Both of them intended to update the Bern Convention and the Rome Convention to address digital technology. But that was 1996, and in the past 25 years, both the copyright world and the IP world in general have become much more complex. So what has happened since that time? In the 1990s, we saw a very major shift, which was for the first time the incorporation of intellectual property into trade agreements. The preeminent treaty in that area, of course, is the TRIPS Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is part of the broader World Trade Organization Agreement that went into effect in 1995.  And those were negotiated, many of them, by the United States, with various trading partners, but also the EU and increasingly other countries such as China are beginning to negotiate these FTAs. Now, there are many interesting things and important things about this move to the field of trade negotiations. But one aspect that I want to emphasize is that the architecture of TRIPS differs from the pure IP treaties in a number of respects. So first of all, in terms of similarity, TRIPS incorporates many existing WIPO treaty obligations. It also adds several others, so it is Bern and Rome Plus. It was, of course, concluded the year before the WCT and WPPT, and so it does not incorporate those obligations. But the revolutionary new aspects of TRIPS were, first of all, to include language on enforcement obligations. So for the first time, countries are obligated not just to enforce rights in a general vague sense, but there are specific rules about having different types of remedies and ensuring that they're adequate and effective. And the other aspect that probably was even more earth-shattering was to create a dispute resolution mechanism, which of course is part of the World Trade Organization structure, not specific only to intellectual property. And that allowed, for the first time, countries to initiate a dispute against each other for a failure, a claim of a failure to implement the treaty obligations. And until then, that had not been possible, and for the first time, there was the possibility of sanctions for the failure to implement an obligation. But TRIPS did maintain that basic structure of minimum rights, plus flexibility and policy space for exceptions within the boundary of the three-step test. So that's where we were at the end of the 20th century. Now, what we've seen in the 21st century is a bit of an explosion of different techniques and different negotiating forums. So we have had starting around 2005, this move began, a move to what are being called pluralateral agreements. Now, what's the difference between a pluralateral agreement and a multilateral agreement? We are now talking about a small group of countries, so more than two, but not 200, as in the nearly 200 that make up the World Intellectual Property Organization membership. Getting together and deciding that they will themselves negotiate a treaty on some topic that they wish to address. Not using the established intergovernmental organizations like WTO and WIPO. And so we saw the fruition, the initial flowering of this movement toward pluralateral agreements with the anti-counterfeiting trade agreement, known as ACTA, in 2011. That agreement is not one that's come into force and has been controversial, but it was negotiated by 11 countries or regions, including the European Union and the United States. And then just last year, the Trans-Pacific Partnership, TPP, which involved 12 countries from across Asia, Latin America, North America, including of course the United States. And obviously the TPP these days, just as an aside, is the subject of a fair amount of attention in the current political campaigns in the United States. We have presidential candidates talking about it, so we don't normally get that level of attention. But this is a very active year for discussing trade on the political stage. There are also other pluralateral trade agreements including intellectual property that are being initiated and discussed that don't involve the United States, but including Asia-Pacific countries and the African Union, among others. Now why did we see this movement start? Well, the impetus was really a perceived blockage at the old multilateral institutions and in a way that's not surprising. You have a situation there where nearly 200 countries are involved in the discussions. You need to achieve consensus to move forward and that is increasingly difficult with new cutting edge issues, involving new technologies that may be adopted in different countries at different rates, and also where we are beginning to move beyond a standard set of rights that everyone is familiar with. So what's happened is that like-minded countries have decided that the only way to move forward and achieve some of their goals is to do it outside of the context of those organizations and in a smaller group. Now the question is whether these changes are good or bad. Whether they move to the trade context for negotiations and whether the move to pluralateral forums rather than multilateral is a good or a bad thing. And a number of commenters and policy makers have raised a number of concerns. One concern is that trade negotiations may be less transparent than the negotiations that have typically happened, for example, at WIPO, which I would say, and I'm looking at Professor Okadiji who's been very involved in these negotiations. I think WIPO is generally seen as a model of transparency among all of the intergovernmental forums in the world today. Second, by definition, of course, these negotiations are less inclusive. Although I think it's important to note that the TPP involved not just 12 countries from different parts of the world, but also a range of countries at very different levels of development with very different legal systems and traditions. So that in itself makes it an interesting agreement that may tend to be seen as building in a more diverse perspective. And then one very important concern that's been raised is that once you move the IP negotiations into the trade context, IP agreement, IP gives may be balanced by non-IP trade-offs. In other words, a country might agree to something in the IP space because they're looking for something, for example, relating to agriculture. And that it's been suggested could be bad from a policy perspective for intellectual property because it means that people may be willing to agree to things that they otherwise would not have agreed to if they didn't have some unrelated, bigger picture economic interest in mind. On the other hand, moving to these other forums has allowed movement to take place where a number of countries want it. And you could look at trips and say, dispute resolution makes obligations more meaningful, that before we had the possibility of dispute resolution and sanctions, the obligations in the multinational multilateral agreements were essentially aspirational. There could be political pressure put on, but there were no real teeth to these obligations. Second, of course, no country is forced to join either the negotiations or the treaties, but they might choose to do so, including looking at an agreement once it's concluded and deciding that it is something that is valuable and appropriate for them to join. But then even more interesting, I think, is that from a negotiator's perspective, from an individual country's perspective, there are incentives to conclude terms that will be seen as reasonable by non-participating countries. You want to attract a broader membership in the future. We are all fully aware of the global nature of the marketplace and have an interest in having more countries join. Eventually, if the agreement is attractive enough, it might ultimately form the basis of a multilateral consensus and be moved over into the multilateral forums as well. So I think those are some of the pros and cons on both sides. Nevertheless, it's a reality and that is the direction that we've gone. So I wanted to say a few words about the TPP copyright chapter and draw your attention to one very significant development in that chapter. For the first time in TPP, the copyright provisions explicitly recognize the importance of seeking balance in copyright laws through the adoption of appropriate exceptions. So there's a provision that says each party shall endeavor to achieve an appropriate balance in its copyright and related rights system. Among other things, by means of limitations or exceptions that are consistent with the three step test, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to, criticism, comment, news reporting, teaching, scholarship, research and similar purposes. So I read that in its almost entirety because you will note that for the purposes that are spelled out are purposes that are essentially taken from the fair use provision in US law and it was very carefully written so that it says giving due considerations to legitimate purposes such as those but not including them and other similar purposes. So there you've got a typical negotiation where in some ways it's built in suspenders. You see three clauses that essentially say the same thing such as but not limited to and other similar purposes. Now this may not sound that groundbreaking, but it is a major shift. It's a major shift from the prior approach of requiring rights and permitting exceptions. So this is the first time, well let me put it this way, under that prior approach it's quite possible that a country could have no exceptions or very few exceptions and in fact some countries did have very few exceptions historically. This recognizes that that is not appropriate and it at the same time leaves countries flexibility, leaves open that policy space and avoids something that negotiators are always keen to avoid which is the possibility of getting disputes brought based on challenges as to whether any particular country has in fact achieved an appropriate balance which could lead to essentially endless litigation. But having described that shift in the 21st century, I note that multilateral treaty making is still alive particularly in the copyright space. Perhaps less so elsewhere in IP. And so we've had two WIPO treaties concluded just in the past few years. Very exciting, a great success for multilateralism and for copyright. One of these is the Beijing Treaty on Audiovisual Performances concluded in 2012. And that treaty essentially was the final completion, the third piece of the puzzle from the 1996 program that resulted in the internet treaties. It rounds out the coverage of the WPPT by including audiovisual performances, audiovisual performances in a treaty that included only musical performances. And that had been blocked for a number of years because of a dispute primarily between the US and the EU over how to treat transfers of rights from audiovisual movie actors basically to movie producers. And a compromise resolution was finally achieved that allowed that piece to be completed. Second in 2013 was the Marrakesh Treaty and it's a long title but I'll read it in full. The Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled. And Professor Akadiji played a prominent role as a negotiator in that treaty and I was very pleased to be able to participate as well. This treaty really represents a groundbreaking change in the international architecture. It's of narrow scope of course. It applies only to certain kinds of works for certain kinds of uses. But it's the first treaty ever devoted to mandatory exceptions. And of course the context of the treaty was one of helping individuals with disabilities around the world and attempt to address the global book famine. And that context enabled consensus to emerge to move forward with this kind of mandatory exceptions treaty for the first time. The Marrakesh Treaty requires countries to put in place an exception to allow the making of accessible format copies for the blind and visually impaired. And also, and this is perhaps even the most important part of the treaty, enables cross-border exchanges of those copies so that when copies are made in one country they will be able to be exported to other countries for the use of beneficiary persons there. So we have a situation now where we have a lot of different types of agreements coexisting, different instruments in different forums. And it is possible that in the future we will see greater consolidation and simplification. But I think this is not something that's imminent. It may be more of a long-term eventuality. So there's plenty to study in law school classes and plenty for lawyers who work in this field to have to be aware of. So let me pause there before I move on to the next topic, which is a substantive issues, and ask if there's any questions. Yes? I'm wondering, is there some sort of restriction on who can access those works? Because I'm just wondering, like an audible question. The Marrakesh Treaty, is there some sort of limitation on who do you have to prove that you have a disability or that you are a user that requires this? Because I'm just thinking, like audible, right? A lot of these books on tape might conceivably fall into this and that's destined for a very broad market. Yes, well the treaty defines who is a beneficiary person by those who have specified types of disabilities all related to visual perception. And then the way the system is envisioned to operate is essentially that you will have authorized entities, like libraries, who make the accessible format copies and distribute them to qualified beneficiary persons. There's also a number of safeguards in the treaty, including the fact that the accessible format copies are defined to be copies that are produced solely for the benefit of those beneficiary persons. So they're not generally meant to be in formats that are usable by the general public. Other questions? Yes, in the back. Hi, so earlier you mentioned the different trade-offs between countries trading IP for non-IP goods and I guess some of the consequences of that. So how would you, or do you have any suggestions for how we could kind of harmonize a system that wouldn't leave developing countries and countries that have more established IP systems from having some kind of trade imbalance? Hmm. Good question. I'm not much of an expert on trade imbalances. I will say this. I think every country in looking at these trade agreements is trying to balance what the pros and cons are for them across the different chapters and dealing with different topics, including IP. In my experience, in particular with TPP, very much of the negotiation takes place just within the IP group and it's only at the very end where maybe there are a few very high level decisions to be made politically where the chief negotiators are trying to decide what trade-offs each country will accept. So I think there can be an exaggerated perspective on how many of the decisions are driven by external to IP considerations. I would say 90-some percent of the decisions appear to, at least, be made within the framework of the IP negotiations. And then there will be a few items that maybe have more of a very strong trade implication. For example, term of protection, term extension is something that a country may think, well, we don't necessarily want to extend term. That's not something that we domestically had intended to do, but maybe it's worth it for us in exchange for something else. So these are difficult decisions. I will say, and I'll talk about this a little bit at the end, that what I have seen over the last 20 years is a great increase in levels of technical expertise and knowledge across the world among negotiators. And I see that there's much more of people coming to the table as equals with very strong senses of where their interests are and a very robust negotiation within the IP chapter itself. Any other questions? Okay, I'll move on and then we can come back to any of this. So to turn to substantive issues. I'll divide this into domestic issues, issues that countries are grappling with within their own borders and then international issues that are being discussed at WIPO. Now, having described the framework of rules set out in the international treaties, within that framework, as you can see, there is a lot of flexibility and a lot of room for countries to do as they wish domestically. And that means there are a lot of areas that simply aren't covered by the treaties and even in areas where they are covered, they're often framed in very general terms, so there's a lot of room for interpretation. And then there are a lot of areas where, for example, with exceptions, where there's an outside limit, the three-step test, and within it there's tremendous flexibility. It is interesting that we're seeing an increasingly similar list of issues being discussed around the world and part of that is not only are markets increasingly global, but copyright discussions are increasingly global, IP discussions are increasingly global. Countries participate in these conversations together and lobbyists and advocates coordinate around the world, and so there is this convergence of conversations going on. I would say that the major focus of attention on domestic copyright issues these days relates to exceptions on the one hand, and enforcement and cross-border issues on the other. And in a way that's not surprising, I think the impetus for both of those areas is, first of all, the development of digital technology, and second, the development of global markets. So again, we're seeing the same forces that are affecting the conversations. There is also more and more interest in greater harmonization of laws, and more and more opportunities to compare experiences in international forums. So I won't try to give a comprehensive list, and I'm not, I don't wanna suggest there aren't any discussions about rights as well. There's always percolating discussions about moral rights, for example, about things like the resale royalty right for artists. But again, I think the greater focus these days is on exceptions and on enforcement and cross-border. So I won't try to be exhaustive, but what I will do is describe a few of what I think of as the most universal issues currently under discussion. So when it comes to exceptions, a lot of the debate is about digital technology. And I would refer you to the green paper that was issued in, now I'm beginning to lose track of years, in 2013, by the Department of Commerce Internet Policy Task Force, which my office took the lead in drafting. It is a very comprehensive description of all of the challenges raised for copyright by digital technology, including the solutions that have been found to date, and then identifying ones still to be addressed. So it's a very helpful roundup of where things existed as of 2013. So what are the major issues? One, exhaustion or the for sale doctrine. So this is for anyone who doesn't have the copyright background that's listening. This is the doctrine that allows you, once you have bought a physical copy, like a textbook, to give it away, lend it or resell it without the permission of the copyright owner. And under current law in the US and most countries, that doctrine does not apply to digital transmissions because in the case of a digital transmission, there is a proliferation of copies being made. It's not just one single copy that is changing hands. So the question has been raised in many forums as to whether and the extent to which that doctrine, exhaustion of rights, should apply, should be extended to apply to online transmissions. And again, as an outgrowth of the Department of Commerce process that led to that green paper, we published a white paper in January of this year that looked at that issue. We describe in the white paper a lot of evidence we received from the public, a lot of input we received through written comments and round tables, including one here at Harvard Law School. And we weighed all of the different considerations that were brought to our attention. And our conclusion was to recommend against extending the first cell doctrine to digital transmissions at this point in time, but to say that that conclusion was based on existing technologies and the existing state of the marketplace and that we would continue to monitor both technological and market developments to see whether there was any change. Second issue that's being debated all around the world, library issues, how libraries use digital technology and preservation activities and also what their role is in e-book lending. So how do they migrate from their traditional role in lending physical copies to lending e-books? And again, that's one of the topics that we looked at and discussed in the white paper. And our conclusion was similar, which is that we did not recommend any change in the law at this time, but we pointed out that the contracts between publishing companies and libraries in this area were very rapidly evolving. In fact, they had changed a lot just in the few months that we were engaged in doing our study and that it seemed premature for the government to intervene, but that to the extent appropriate solutions were not found, that there might be the possibility for legal change. And we noted that the copyright office in the US is currently looking at Section 108, the library exception in US copyright law, to see whether it needs to be updated. A third digital issue, mass digitization, the situation where there is a very large collection of copyrighted works and a desire to digitize all of them with the concurrent burden of having to go out and get individual consents from each owner. So this could involve, for example, nonprofit archives with huge collections of works or commercial projects such as Google Books. And in this area, the copyright office has also done some reports in this country at preliminary one and a later recommendation. They're looking at the possibility of a technique called extended collective licensing where you would set up a collecting society to administer these rights with all right holders being presumed to participate unless they affirmatively opted out. So they're looking at a pilot project to see how that might work. And meanwhile, you've got the fair use doctrine that can apply on the specific facts of particular projects as the Second Circuit recently decided was the case with the Google Books project. And I'll mention one other issue and there's obviously a plethora of issues, but one other that definitely has received near universal attention. And that's the relationship between exceptions to copyright and protection of technological measures against circumvention. So under the 1996 WIPO treaties, the WCT and WPPT, countries are obliged to protect technical measures that right holders use to protect their works against being circumvented. So in other words, if there's encryption used to protect a work that you have to make it illegal to decrypt that in order to gain access to the work. So the question is, if works are protected by these technological measures, is there a way for the beneficiaries of exceptions to still take advantage of the exceptions? And governments around the world have been grappling with how best to reconcile those two policy goals. How do you achieve a balance where you ensure that you have effective protection of those technical measures against being circumvented, but at the same time ensure the continued ability to enjoy the exceptions? Now in the US, we have decided to deal with this and this was part of the Digital Millennium Copyright Act through setting up a triennial rulemaking procedure that the Copyright Office administers and the Librarian of Congress makes the final decision that allows, based on evidence, exceptions to be put in place every three years to allow circumvention for purposes of exercising an exception. But other countries have dealt with it in different ways and in some of the more recent treaty negotiations, this has been an issue that's been debated. And in fact, if you look at the Beijing Treaty, you will see in agreed statement 10, a standard that was worked out in negotiations that allows countries to put in place effective and necessary measures to ensure that a beneficiary may enjoy national exceptions and limitations where the beneficiary has legal access to the work and the right holder has not otherwise taken steps to allow them to get access despite the use of the technical measures. So if that sounds a bit convoluted, it is a bit convoluted. Again, the process of long negotiations with a lot of belts and suspenders, but if you take a look at it and parse through it, I think you'll see how it's intended to operate and it is written in such a way as to be consistent with both the US rulemaking process and other procedures for doing this that are in place in other countries. So on the non-digital front, a few things. First of all, a lot of discussion about exceptions for those with disabilities. Most of that is focusing on implementation of the Marrakesh Treaty, which we're engaged in in the United States as well. The administration has sent over to the Senate a proposed package with implementing legislation to move this forward and we're hoping that the Senate will decide to move forward or waiting to hear if there will be a Senate Foreign Relations Committee hearing on the treaties and then the Judiciary Committees could take up the implementing language. But there's also interest in looking at other disabilities as well. And let me mention just two other areas of exceptions that aren't specifically digital. One is orphan works. Orphan works are works where it is not possible to identify or locate the copyright owner or the author. And so it is not possible to go to someone and ask permission to use the work. And this is a particular problem in a world where copyright terms are quite long. There can be works especially residing in libraries and archives where there's no clear indication of who the owner is and so someone who might want to get a license will not be able to do so. So the question is how do we deal with that? The Copyright Office proposed in fact more than 10 years ago originally an approach that would work by limiting remedies. If someone did a reasonable search to try to find the owner and could not do so and they went ahead and used the work and the copyright owner subsequently appeared, there would be limits on what kind of remedies could be awarded against the person who went ahead and used it. I think that's a helpful approach. It went fairly far in Congress, but in the end was not passed and the Copyright Office recently recommended a similar approach with some tweaks and I recommend looking at what they suggested because I think it's a very helpful document. Other countries have been dealing with this not through limitations on remedies but primarily through exceptions and there's been a proliferation of new laws in this area or new laws being considered in countries around the world. And then last but not least, fair use and fair dealing. So in many countries around the world, exceptions are all dealt with through very specific exceptions that spell out the exact terms and conditions on which a work can be used. Much more akin to the exceptions in US law found in sections 108 and further up than section 107, our fair use statute. And again, as the international conversation has evolved and grown, there's been some interest in looking at our approach, looking at how we have this general exception which supplements and goes beyond the very specific exceptions. And people have also looked at fair dealing exceptions which exist in the UK and other Commonwealth countries which I would characterize as being somewhere in between. They're more general than our very specific exceptions like section 108, et cetera, but they're also somewhat more specific and constrained than section 107. They specify the purposes for which the use is made rather than being open-ended. There's been a lot of discussion about the relative positives and negatives of being more specific or more general. Obviously, the more specific you are, the more certainty you have, and the more general you are, the more flexibility you have. So this is a subject of a lot of debate. One of the issues that's been raised is the extent to which fair use can easily be transplanted into other legal systems. One issue is whether it's a civil law system or a common law system where deference to judges making law and to precedent is a function of the system, a feature of the system. Another question that's been raised is whether something as open-ended as our fair use doctrine works well in a country where you don't have a body of precedent and a whole history of what the language means to help define and interpret the statute. So these are the kinds of issues that are being debated in this area. So I will just mention briefly, enforcement and cross-border issues without talking about them at any great length. One issue that's been under debate for a long time, parallel imports, different countries have different approaches. There's not a lot of international law on this because it's an area that by and large has been deliberately avoided in treaty negotiations because it was so difficult to reach agreement, to reach consensus. But of course in the United States we have the recent Supreme Court decision in Kurtzang which has opened the door to a lot of parallel imports. Online enforcement, this is a very hot button issue these days. At an earlier and more naive time in my life I thought that enforcement was easy. I thought the policy issues about achieving an appropriate balance and the substantive law are the really difficult ones. But once you've achieved an appropriate balance who could possibly object to enforcing the rights? But of course as anyone who's lived through SOPA and PIPA and ACTA and these wonderful acronyms knows online enforcement is not easy. In fact it sometimes can be the most difficult issue. The kinds of issues under discussion, when is it appropriate to bring lawsuits against individuals who are not acting for commercial gain and what type of damages are appropriate in those cases? When is it appropriate to bring lawsuits against online services? And here you've got all of the issues about secondary liability which are dealt with differently in different countries. In the area of both individuals not acting for commercial gain and online services the white paper recommends some changes in the statutory damages regime in the United States. Some changes in how we calculate the amount of statutory damages in those circumstances. And then of course last but not least is it ever appropriate and if so when to have courts order the blocking of foreign websites and in this country of course that was attempted in SOPA and PIPA but in other parts of the world like in the EU courts are issuing orders to block websites on a, I wouldn't say on a regular basis but it's not unusual. What's the role, appropriate role of intermediaries in helping to control infringement? In the online environment you have many different intermediaries between the creator and the consumer should any of them be doing more than they're doing? There have been discussions about filtering and if you look at the UGC agreement that was concluded here in 2007 between several major services for user generated content and several major entertainment companies it includes some agreements on filtering, safe harbors for internet service providers, limitations on liability in exchange for their providing assistance usually in the form of a takedown of content when copyright owners send them notices of infringement. These ISP safe harbors have become quite widespread. They exist in the United States and most of our major trading partners around the world and these provisions are reflected in both the bilateral free trade agreements and also in the TPP. And then again last but not least voluntary best practices agreements among private parties on ways that they can help to curb online infringement and there's increasing interest in looking at these partly as it gets more and more difficult to legislate in this space. There are a number of them in the United States and the IP enforcement coordinator at the White House has made it a hallmark of that office to try to facilitate and promote these agreements. A lot of work has been done in the UK on such agreements and even now the European Union is exploring what they're calling the follow the money approach which is the idea that payment processors, credit cards, banks might be helpful in cutting off funding to these kinds of illegal sites. One very interesting question, open question is the effectiveness of any of these voluntary best practices agreements and my office is right now engaged in a process of looking at how one might evaluate these. I don't wanna take too much more time but let me move to the international front and WIPO. So at WIPO there's a standing committee on copyright and related rights which is the primary venue where international norm setting is discussed. Meets twice a year, it's a very transparent and inclusive environment. Many, many non-governmental organizations participate and there's two main items on the agenda currently. One is the question of a possible treaty on broadcasters rights and this is sort of the tail end of the attempts in the mid 90s to update the Rome Convention which covers broadcasters rights. This has been discussed for almost 20 years and the idea is to protect broadcasters against signal theft using new technologies. There were a lot of different proposals on the table some of them extremely broad, the negotiations ground to a halt around 2007 and they've now been revived. I think it's fair to say that progress has been made in clarifying and narrowing what's on the table. The United States has been looking at something that's closer to retransmission consent under our communications act but the ultimate resolution is still unclear whether this will be a successful treaty in the end or not. We are struggling with how to distinguish protection of the content from protection of the signal not really that easy to do. We are struggling with the issues of who qualifies as a broadcaster today? What is a broadcaster versus a webcaster or anything else? And how do you deal with the evolving use of digital technology on all sides by which I mean both how broadcasters are using digital technology in conjunction with or in lieu of over the air and also how those who might pirate the signal are using digital technology. The other major topic on the agenda is what's being called the exceptions and limitations agenda. And so far this has focused on libraries and archives, exceptions for libraries and archives and exceptions for educational institutions. Now there's considerable consensus over the importance of exceptions in these areas and the need to have them be part of the copyright system. The debate has been over what should be the appropriate treatment at the international level. Should there be treaties? And in particular, the Latin American and African countries have been strong proponents of treaties. Should there be no instrument at international level but just technical assistance and consultation to improve national laws? That's been the preferred approach of the Europeans. And then the United States has tried to stake out a middle ground. What we have sought is to have an agreement on high level principles and objectives. So for example, in the case of libraries, one such principle would be countries should have appropriate exceptions to allow libraries to make preservation copies including using new technologies. And then there would be consultations and technical assistance between countries to talk about how best to implement those high level principles and objectives. So we'll see where that goes. The next meeting is next month. There are also some new proposals on the table. So this is very much a work in progress. So the last topic I said I would discuss were operational issues. I won't spend a lot of time on that but I will say here, this is an important issue. Once you have the framework of laws in place, both international and national, how does the online market actually function? And to the extent there are glitches and it's not entirely satisfactory, what should be the government role? When and to what extent is any regulation desirable? So in the course of consultations on the white paper, what became the white paper, we saw that the online marketplace today is quite vibrant and is evolving very rapidly. There are many creative works available in a variety of different terms in many countries around the world. So that's the good news. But it's still the case that there's more to be done. The online marketplace is not yet fully comprehensive.  It's not seamless and it's not consistent from country to country. So a number of concerns have been raised. One is the need for more reliable and comprehensive ownership information. Databases of rights and works so that users can determine who owns what and get licenses more easily. The role of collecting societies, both now and in the future, are they enablers and can they be better enablers? Are they bottlenecks? How do we avoid that? Compensation issues. Who along the chain is making how much money from what new types of services? And then consumer awareness. So when consumers click buy on an online service, they're not necessarily obtaining ownership of a copy in the same way as when they buy a physical copy. Do they know what they're paying for? So in the United States, we've been looking at all these issues. There's definitely a perspective that the development of the online marketplace is primarily the domain of the private sector. And this was a very clear message that we were given in our public consultations through the Department of Commerce. But we do have in the United States, the Copyright Office has registration and recordation databases of rights ownership information. It's looking at trying to update modernize and expand them as much as possible and we certainly support that. There are also various databases maintained by collecting societies or trade associations. And we've been looking at what the government role can or should be in this area. So both the administration and the Copyright Office are focusing on ways to enhance the use of digital standard identifiers for copyrighted works and to promote the interoperability of those identifiers across sectors, all of which would help to develop the kinds of databases and easy licensing that everyone is hoping for. The roles of collecting societies are also being reconceptualized internally and examined externally, including by the Department of Justice. On the compensation issues, normally our approach is to leave these to the market to sort out, other than those cases where we have rate setting for compulsory licenses where we in the Department of Commerce have certainly called for better rationalization of the different standards. And then on the consumer awareness issue, part of the white paper was a call to establish a multi-stakeholder process to try to develop best practices for how platforms communicate with consumers, distributors communicate with consumers to tell them what it is that they're buying exactly. So we intend to be taking that forward as well. So just a few thoughts in conclusion. I really see that as you look at all of these issues, there are just a few core tensions that are underlying almost all of them. So on the one hand, you've got the tension between globalization and harmonization, one very desirable goal. On the other hand, a desire to maintain some territorial control and cultural diversity. Second tension, on the one hand, we want very clear legal rules with some specificity and predictability. On the other hand, we want flexibility and generality so we don't have to keep changing the law. And then you've got the tension between private ordering and regulation. With private ordering, you have more agility, the ability to act more quickly, but with regulation, you have greater security and guarantees and universality. So what we see in a lot of these negotiations and international discussions is different countries that land in different places along these spectrums at any given point in time on any issue. So, but I see those as really animating a lot of the conversation. I do have an overall optimistic view. I think there are increasingly shared interests among countries, there are increasingly high levels of technical expertise in these negotiations. So I have a lot of, I believe there are grounds for optimism about the ability to develop consensus in the future on a lot of these issues, even if we can't do it today. And I personally think it's important to recognize that in the interim, before we can develop consensus, and even after we have, we need to think about non-normative work as being equally important as normative work, and that is both at the national and international level. For example, we have in the United States put in place the Department of Commerce in particular multi-stakeholder processes on internet governance. So we've looked at, for example, multi-stakeholder, a multi-stakeholder forum that we've set up to develop best practices for the operation of the notice and takedown system under the DMCA. We did that a couple of years ago. The development of fair use guidelines. How does fair use apply in particular contexts? That can be extremely helpful. There is an accessible book consortium that's been set up internationally where WIPO is cooperating with authorized entities and publishers to complement the Marrakesh Treaty with capacity building, creating a database and book exchange and taking forward the goals of that treaty. Education and technical assistance and how you improve and apply national laws. I think all of these things are extremely important. And we have to recognize that we can't adopt new treaties and new laws every year. It's a slow and difficult process and sometimes it's not a bad thing that it's a slow and difficult process. But there is real value in taking incremental and practical steps and they can in turn lay the groundwork for future norm setting when it's needed. So let me stop there. I've probably talked a little bit longer than I intended and hopefully we still have some time for discussion. Yes. So as we all know, there are different theories of intellectual property such as labor theory, personhood theory, welfare theory or theory of culture flourishing. What would you say is the main driver for IP norm setting on an international stage in terms of these theories? So which one might be the most important one on the international level? And relatedly if you say that this theory would be welfare theory, would you then say that evidence based policy making in IP is actually not working because all these international treaties lock us in and a lot of economists would say on the other hand that IP rights are only one way of solving the public goods problem and there could be a reward system that might actually work much better. So that we're actually nowadays not much further than what Fritz Machlup said in the 1950s when he said in terms of the patent system that a country that has a patent system we cannot really recommend abolishing it because we don't have enough empirical evidence but on the other hand a country which does not have a patent system we cannot really recommend introducing it. So would you say if the main driver is welfare policy is welfare theory? Do you think it's working on an international level or is everything kind of messy and a political process and that's why we can't really make evidence based IP policy on an international level? Well good and complex question. So I'm trying to take notes to make sure I understood it completely. I would say in terms of what theory is animating policy making internationally it varies from country to country and I also would not wanna say that any one country has only one theory behind what they're trying to achieve but it probably is fair to say that certainly to the extent that IP policy is being made in the context of trade negotiations there's probably a little bit of a predominance of the utility approach in that arena but that doesn't mean necessarily that's the sole thing that's driving it or that countries aren't also looking to pursue other principles and theories in that arena or elsewhere simultaneously. I actually think in terms of the question as to whether evidence based policy making is working or not I think it's actually we've moved in a very good direction there. What I see is more and more of an attempt to base policy making on evidence, more and more gathering of evidence in the IP space and I know the Patent and Trademark Office established an office of the chief economist about five years ago, six years ago now for the first time. Other offices have done the same. WIPO now has an office of the chief economist. The OECD does a lot of work in this area so I think a lot of people are really beginning to focus more than ever before on how to develop the evidence on which policy can be based. Of course it's not as if and I'm always careful to point this out it's not as if once you have an economist who prepares a report that answers all the questions for you it still leaves open questions as to the robustness of the survey and the study and the results, different economists often reach conflicting results and then you still have to figure out how to interpret it and what it means for the policy. But I actually think we're improving in that sense. And in terms of the question about treaties locking us in yes they do to some extent but often the treaty language is written in such a way to have a fair amount of generality and a fair amount of ambiguity in it by design because countries are looking to come up with language that reflects principles but leaves them some room to maneuver within for their own goals. And I think it's very interesting if you compare for example what's in the US free trade agreements on the issue of ISP liability for example to what's in the TPP on the issue of ISP liability you will see a move toward greater generality and less specificity. The bilaterals were almost an exact reflection of all the details in US law. The TPP phrases it in much more general terms leaving considerably more flexibility to countries in terms of implementation. So I hope that answers the question. I think you raised so many issues that they would merit a much longer conversation but in brief those were my thoughts. It would be helpful to address one composite question from our affiliated courses in other countries. So two students, one from Cairo, one from Nigeria ask questions about the attention that is or should be paid to the special needs of developing countries in plurality lateral or multilateral negotiations. So NG Ilatte in Cairo asks whether there should be special attention to the needs for encouraging creativity or enabling access to knowledge in developing countries. And Flora Martins from Nigeria asks about the role of reparations meaning incorporation into contemporary discussions, the history of injuries to developing countries and to what extent can IP policy offset or repair those? So the question about whether the special needs of developing countries should be taken into account, I think absolutely yes. And there's been a lot of work done in that direction at WIPO over the years. There certainly were discussions about the special needs of developing countries back in the 1960s in the copyright context which led to the appendix to the burn convention allowing more flexibility for translations. But there have also been in recent years at WIPO a lot of work on the development agenda to make sure that those needs are taken into account and that there's a focus on how intellectual property can be used to further development, not solely the question of the other things that intellectual property can do or should do. There is now, as part of the WIPO development agenda, I believe there were 45 different items to be taken forward including what was called mainstreaming the development agenda into the work of the substantive committees. And in fact, the director general just gave a report on the status of those either this week or last week which should be available online and I recommend anyone to take a look at it. And then of course, I would be remiss if I didn't mention the fact that the Marrakesh Treaty itself was in large part, although of course not in totality, a reaction to the needs of developing countries because a very large percentage of the world's blind and visually disabled population resides in developing countries. And that was a lot of the impetus for moving forward with that treaty although we're very excited about the benefits that it can bring to Americans as well. On the question of reparations, this is actually something I've never heard asked before and I'd actually be interested to find out more about the quest in myself. I don't know that I have a good answer because it's not something I focused on. The context as you well know in which that issue has popped up involves traditional knowledge and TCEs. On occasion, one of the contentions made in that area about which you and Professor Kedige know much more than I do is reparations as an effort to redress a pattern of exploitation in the past by according rights to indigenous groups that on other normative arguments including a welfare argument we might otherwise not be inclined to grant. But outside the context of traditional knowledge, I agree it's unusual but that's intriguing as a possibility. I mean, the one thing I would say is we do want to put in place instruments that look forward appropriately whatever we do to address or think about what's happened in the past. So I was gonna ask a question. Thank you so much for a great, great presentation. One question that students have asked over the course of the year and in our conversations in various sections has been how do you correct treaties when they're wrong? And this is partly her question I think about treaties lock us in. So one obvious example now from your talk, Shira has been this question of formalities where the US for many, many years stayed outside of the burn convention system in large part because of our formality system which European countries said was inconsistent. And yet we find ourselves in a situation today where the digital environment almost can't work without some, whether it's voluntary or not some system of formality, there's some way of tracking authors of being able to get permissions to identify who owns what just for the market to work. And so the broad question is what do you do when a treaty is wrong? And the second more practical question is is there ever a way to go back? There are mechanisms for amending the treaties. The problem is it's not easy because it generally requires consensus and each treaty will set out its own mechanism for how it can be amended or changed. I'm not aware of that ever having happened with an IP treaty. So it's not impossible and if there were an area where there was a general consensus it could be done and look the treaties are enacted by consensus so they could be changed by consensus. It's not impossible. The other approach of course is to look for ways around the concern and I certainly think with the formalities issue there are a lot of creative things that can be done to try to achieve some of what we're trying to achieve in the digital environment without it qualifying as a formality that would be banned. And that's an exercise that the United States has engaged in since the Burned Convention Implementation Act and trying to look at creative ways to condition remedies on formalities rather than the ability to actually enforce rights. I think there's a lot of things that can be done to make it more easy and appealing to get people to register. And in fact one of the ideas that I've been interested by is a two track system that people have talked about for registration where you might, this is registration with the US Copyright Office where you might be able to register a work for a very low fee where there would be no examination at all so the office would just take it to create a large database. And then for a somewhat higher fee, the office would examine the way they do now or possibly examine in an even more stricter way than they do now in return for getting the presumption of validity that examination can confer. So that is also a creative way to probably enhance the database without running into the formalities issue. And I think we need to do a lot more thinking about ways to deal with that. Thank you very much for a wonderful presentation. Thank you. Thanks, Carrie.


In Arizona, there's five levels of homicide. The highest level is first degree with a notice of intent to seek death penalty. That is capital murder. That is where not only are they looking for the standard first degree, which is premeditated moment of reflection homicide, but also with some aggravating factors. Sometimes these are called Gretzler factors, where they're looking for heinous, cruel, depraved mutilation of a body after it's dead, torture, things of that nature, fear of the victim before they died intentionally placing somebody in fear, stuff that you normally see on some of the most horrible of saw videos and TV shows and movies. However, sometimes this is abused and you'll see this will charge capital murder if there's simply a baby death. We had a young lady who was charged with a homicide while an infant was in her care at a daycare center. Later, we showed it was a medical rule out and all charges were dismissed with prejudice. But sometimes they'll actually file for capital murder. Now, I've talked about capital and first degree murder. What is second degree murder? Well, this is a little different. This involves where the standard of care is that somebody was, excuse me, reckless with their standard of conduct.  That is a very reckless standard of care. Now, the problem is they also charge this on DUI vehicular homicides and they'll say, this is a second degree murder. He was really drunk. Actually that should be charged at worst as a manslaughter. Now, manslaughter is the next level down. That is a reckless standard of care versus a reckless standard of conduct. I know this sounds interesting or we're splitting hairs, but it does matter. That's where somebody drank they got in their car and they were driving and let's say they're impaired by alcohol. I always use this as a description. If this person's car misses another one, it's a DUI. If he hits this car and breaks somebody's leg, that can be an aggravated assault dangerous. If he hits the car and somebody dies, that's normally a manslaughter. Now manslaughter is obviously a very serious charge, but many times we're able to get it knocked down to the lowest level of homicide. That is negligent homicide. Negligent homicide is just negligent actions. With a negligent homicide, why is that important? The penalty can be as low as probation with no jail. That is important on these various levels of homicide that you hire a lawyer who knows the differences and knows what they're doing because chances are your loved ones probably have been overcharged in Arizona.