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Daniel J. Gervais

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(Re)structuring Copyright

A Comprehensive Path to International Copyright Reform

Daniel J. Gervais

In this bold and persuasive work Daniel Gervais, one of the world’s leading thinkers on the subject of intellectual property, argues that the international copyright system is in need of a root and branch rethink. As the Internet alters the world in which copyright operates beyond all recognition, a world increasingly defined by the might of online intermediaries and spawning a generation who are simultaneously authors, users and re-users of creative works, the structure of copyright in its current form is inadequate and unfit for purpose. This ambitious and far-reaching book sets out to diagnose in some detail the problems faced by copyright, before eloquently mapping out a path for comprehensive and structured reform. It contributes a reasoned and novel voice to a debate that is all too often driven by ignorance and partisan self-interest.
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Daniel J. Gervais

The history of copyright in common law jurisdictions going back to the Statute of Anne was a mostly haphazard process of rights accretion. The complexity grew but because copyright was mostly used by and traded between professionals, the system functioned relatively well. With the advent of the Internet, the absence of physical media to distribute copyright material and the attempts to control the behaviour of individual users online is leading to a deep reconsideration of both the objectives and method of enforcing and using copyright.

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Daniel J. Gervais

The main international copyright treaty, the Berne Convention dates back to 1866. It was last revised in 1971. It is lagging behind decades of intellectual and technological development. It protects rights but leaves exceptions and limitations mostly as unregulated policy space. It is anchored in European notions of authorship that had purchase in eighteenthand nineteenth century Europe, and to a large extent still do today. The importance of attribution but also the need—indeed the right—of authors to reuse pre-existing material, especially ideas, was also well established. Modern and postmodern critique of the Author have led to new insights on the role of copyright. The Berne Convention’s prohibition against formalities also seems at odds with the ability to acquire, process and make available many forms of metadata. The TRIPS Agreement, though it is more recent (1994) did not add much to the Convention’s substantive provisions.

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Daniel J. Gervais

Most exceptions and limitations to many intellectual property rights, including copyright, are not subject to a standard contained in both the Berne Convention and the TRIPS Agreement known as the three-step test. The test focuses on the impact of exceptions and limitations in national law on the commercial exploitation of a work protected by copyright and how it impacts the legitimate interests of the author or right holder. This is both a constraint imposed on most countries but also a path to a proper scoping of the economic component of copyright, namely a right in respect of commercially significant uses. The application of the test in a number of national systems and various categories of use (research, private use, education) is considered. Its interface with other exceptions and limitations contained in the Berne Convention is also discussed.

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Daniel J. Gervais

The sine qua non to obtain copyright protection in almost all national copyright systems is originality. The term is not formally defined in international instruments such as the Berne Convention or the TRIPS Agreement but hints as to its intended meaning are given. National definitions vary but many focus in one form or another on choices made by the author that were not primarily constrained by the function of the work (if it is functional), the tools used, or applicable standards and common practices. These can be called creative choices or, in some jurisdictions, judgement. The laws of Canada, France, the United Kingdom, the United States and others are considered. Some national systems also require “fixation” of the work.

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Daniel J. Gervais

There are many new forms of creation, especially online. Participatory creation happens by direct collaboration using online tools, reuse of materials created by others sequentially, such as reuse of material made available under a Creative Commons license allowing such use or use allowed under a fair use, fair dealing or parody defence. A common denominator of many new forms of creation is that the author is not a professional and has little time, ability or resources to devote to copyright transactions. A taxonomy of new forms of creation is proposed and used to assess the incomplete adaptation of copyright to these new phenomena, including situating the border between derivation and reproduction.