Thank you Prof Goldman. European rule-making make indeed resemble rent-seeking.

But, properly understood, the core paradigm of European intellectual property regime is that it is harder for information (including copyrightable works) to become completely free. In the US, open access movement, viral licensing scheme, intermediaries’ terms of service, and liberal interpretation of fair use doctrine have de-intellectualized much of online cultural production. In Europe, all these movements challenge the whole of their legal tradition which has always been skeptical about unethical exploitation of the free.

What happened in Garcia v. Google become America’s latest copyright puzzle; in Europe this would be a simple moral rights dispute. The real issue is not really the ownership in the 5-second performance, but the moral-right interests of the actress. Unfortunately, we don’t have moral rights to work with here in America, and the 9th Circuit was forced to make legal improvisation that ultimately led to the rehearing. The fact that the U.S. signed the WIPO’s Beijing Treaty in 2012 may change the future legal landscape of how audiovisual can be used in the social media context. (But there is no doubt that enacting this into a federal law will face a fierce opposition)

Thanks for the comment. Your explanation is interesting. To me, the ancillary copyright just seemed like typical xenophobic rent-seeking. Eric.

I find Prof. Goldman’s animosity against the European approach very uninformative. The German and Spanish laws aiming at taxing “news aggregate” were based on the application of European moral rights in cyberspace context. Google’s news aggregate practice and reproduction of snippets has been held in European cases to be a violation of the moral right of integrity. The European paradigm interprets digitisation (e.g. Google book) and electronic aggregation as non-transformative (for the purpose of moral right). Also the news aggregation is considered not to fit within the “quotation exception” of the Berne Covention because Google produces the snippets without any intention to comment or express opinion on anything (again a nice contrast to American convention of thinking