IP SEMINAR

November 27, 2008

“Copyright Limitations Contracted Out:

F eedom of Cont
Freedom Contractt vs. P
Public
bli Poli
Policy””

Academic Advisor: SUZUKI Masabumi

Student’ss name: KORK Boren
Student
H
Have you ever seen thi
this??
Have you ever read this?
What are they?
- Physical goods – digital goods

- Sale contract – Licensing contract

- Classic form - Standard form (shrink-

wrap click
wrap, click-wrap)
wrap)
Are they enforceable?

- Effectiveness supported by Digital Right

Management (DRM) and the legal
protection thereof

- Validity held by courts (Case study in

US, EU, Japan)
So… What?
1- Copyright Excessively Protected
- Ultimate goal of copyright system:
D li
Delicate balance
b l between
b the
h interests
i
of copyright holders and copyright users
- Copyright exclusive rights and Copyright
Limitations
- Private ordering vs. Public ordering
- Balance failed
- Copyright functionality lapsed
So… What?
2- Public Domain Shrunk
- Public Domain: All information
resources that
h are unencumberedb d byb
intellectual property rights (Copyright)
- Centrality of the Public Domain to
py g Policyy
Copyright
- Public Domain invaded (distribution of
the public domain information)
- Copyright goal unattained
Why is that?
Freedom of contract…
* Freedom to conclude or not to
conclude a contract
* Freedom to choose the party to
contract
* Freedom to determine the content
of contract
* Freedom to choose form of contract
So… how?
Freedom is limited…
- General limits: Fundamental Rights
P
Protection,
i Principle
P i i l off good d faith,
f ih
protection of public order, doctrine of
abuse
b or misuse off right
h (examples
( l off
theories developed by US, EU, Japan)
- Freedom of contract Subordinated to
the Public Policy
- Forms of limits: Mandatory Rules
What about… Copyright
Limitations?
- Right to get access to information / Right to
use the common property / Right to the
privileged uses/ Fair use Right
- Should they be alienable?
- Is striking a delicate balance in Copyright
system regarded as a Public Policy?
- Should Copyright Limitations be regarded as
mandatory rules?
- Example l off Belgium
l Copyright
C h Law
- How should the theory be implemented?
Challenges:
- Scarcity of the case study
- Stronger arguments needed
- Resources (US,
(US EU (French/Belgium),
(French/Belgium)
Japan)
- Knowledge about Contract Law
- Implementation of the theory
 THANK YOU!

YOUR COMMENTS PLEASE!