Monday, April 30, 2007

Global Thinking in St. Louis

These days is been quite difficult to keep pace with all the things are going on with IT and IP issues and write about them here, due to my tight schedule here in St. Louis. To the several scholarly activities I am engaged in here, we are filming a series of TV programs about several institutions of the St. Louis area and their interaction with global issues. The TV series will be called Global Thinking and it will consist of five programs featuring the Missouri Botanical Garden, the International Institute of Saint Louis, Monsanto, Boeing and the Danforth Plant Science Center. Each program will refer to one global issue and look into the way that the featured organization is acting on it. We filmed last Monday at the Missouri Botanical Garden, where I interviewed a group of curators and the President of MoBot, Dr. Peter Raven, and tomorrow we will be filming at the International Institute. The program is a collaboration between Webster University and the Higher Education Channel, and it is part of the E. Desmond Lee Visiting Professorship. Just in case I brought my dinner suit (tuxedo in this side of the Atlantic) for the Emmys

Tuesday, April 17, 2007

Much for technological neutrality

SoundExchange, a spin-off of the RIAA, has started to collect royalty fees from Internet-based radio stations as retribution for the songs they play, regardless the status of commercial or non-commercial that those radio stations may have. This comes as result of the ruling of the Copyright Royalty Judges of March 2, 2007, who decided for the collecting agency.

Internet-based stations and webcasters are asking the board to reconsider its decision, which will add singers, musicians and record labels to the list of those already receiving royalty fees from these stations (until now they did pay fees to writers and composers). The argument can be made, again, about how fallacious are the collecting agencies arguments and how far from sound legal and equitable principles those type of rulings are. According to The Journal, John Simson, executive director of SoundExchange said that “[a]rtists should be paid for the value of their hard work, their investment and their creativity”, forgetting that the fees paid to writers and composers are the ones designed to reward creativity and also forgetting, of course by coincidence, to mention that most of the fees that his organization collects go to the record labels and not to the artists.

However, what would make a better case to have the board reconsidering the ruling is the extra burden that imposes on Internet-based stations, which would directly contravene minimum principles of technological neutrality. For example, non-Internet-based radio stations don’t have to pay SoundExchange fees because the technology predates the creation of the collecting agency, which is the same that saying that cars emissions should not be subject to EPA regulations because cars were created before the environmental agency. The truth is that the difference is based in the fact that record labels see terrestrial radio as a mean of promoting artists and sales and has nothing to do with the age of the technology. But what shows more clearly the difference in treatment is the data that Internet-based stations are supposed to collect.
Over the air radio stations must only track the name of the artist, album, record company, date and time songs were played, but Internet-based radio stations must keep a log of all of that plus the number of listeners who tune into the station when the song is played, how many listeners actually heard the song and how many aggregate hours that song has been played throughout the day.

Back from Turkey

I spent nine days in Turkey invited by a group of people trying to show the country as a democratic and secular society, which in part was achieved. There are many things to write about the trip and many pictures to process (they are digital but the size needs to be changed), so in few days I will write a long report on the trip and the amazing technological infrastructure I have seen.

Monday, April 02, 2007

Webster University-IPSA Meeting and Conference

Well, the day is arriving and the final program is online. The original number of speakers has been reduced due to visas and other constraints, but the quality and diversity of the speakers is unmatchable. The presentations will be uploaded at the end of each day, so check this space or here at the end of the week...

Ownership of State produce works

In several conversations in different places and with different people (I especially remember one late night in Cusco) we have discussed who owns software created by an organism of the State. Can this organism require other parts of the same State to pay for its use? Or, can it deny the use altogether?

In the case of Argentina, it seems that the question is not one of copyright or contract law (as per licensing), but a pure issue of constitutional and administrative law.

If the software in question is written by a centralized organ, it is important to remember that this type of organism has no juridical personality independent from the State’s juridical personality. Then, if we take into account that to carry out their duties these organs interrelate and concentrate following rules of dependence and subordination and that they keep between them a strict relation of hierarchy with different degrees and levels, but always respecting the instructions and directives of the respective ministry, and that according to the article 103 of the Argentine Constitution the ministers cannot make resolutions on their own, with the exception of issues concerning the economic and administrative regime of their own departments, and that the article 99.1 of the same constitutional instrument de President is the political responsible for the administration of the country, copyright should be invested upon the State and the President is who exercises that right at its pleasure (although if you use this phrase in Argentina as much as it has been used here lately, you would have riots in the street).

In the case of the program being written by a decentralized organism, the titularity of the copyright would depend on the law or decree creating the organism. If a doubt exists about the faculty of such organism to claim ownership over software created within its boundaries, it needs to be remembered that “while in private law capacity is the rule, and accordingly it is presumed unless a express norm denies it, in public law the capacity of an organ is not presumed and it must be invested expressly o reasonably implicitly by law to be reputed as legally existent” (Gordillo, Tratado de Derecho Administrativo, own translation)

Unfortunately, neither Law 11.723 on the Legal Regime of Intellectual Property or its modifications make reference to intellectual property rights acquired by the State, for which it could be argued that, in absence of an express norm, the decentralized organs, as the centralized ones, do not own the copyright of the software they produce. If the idea is to find the assignment of those rights implicitly, the more general topic of the competency of the different organs and the form of resolution of competency’s conflicts could be analysed. In this case, again, the issue seem to end in the State owning the titularity of the copyright, with the only exception of the cases where a law expressly delegates it, because the competency of the organisms of the State exist only due to express delegation (Law 19.549 art 3) and in the case of conflict, this is resolved through a pyramidal and hierarchical system that has its tip the executive branch of government (Law 19.549 art 4).

In other countries the issue has been solved in many different manners. In the United Kingdom, the Works created under the orbit of the State are property of the Crown and the copyright subsists 50 years from its publication (125 years for unpublished works), according to the Copyright, Designs and Patents Act 1988. The United States has found a solution that, personally, seems more adequate. Taking into account that all works produced by the State belong to the society that the State represents and in addition they are produced using resources that belong to the society, the US Code 17 in its section 105 clearly states copyright is “not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”

Going back to the situation of Argentina, if an organism registers a work, the fact that the National Directorate for Authors Rights (a little broader than copyright) has taken the work to be registered is irrelevant; the lack of competency conditions the validity of the act but not its existence…