Copyright as a constraint on creating technological value

Abstract

How do we legislate for the unknown? This work tackles the question from the perspective of copyright, analysing the judicial practice emerging from case law on new uses of intellectual property resulting from technological change. Starting off by comparing results of actual innovation-related cases decided in jurisdictions with and without the fair use defence available, it delves deeper into the pathways of judicial reasoning and doctrinal debate arising in the two copyright realities, describing the dark sides of legal flexibility, the attempts to ‘bring order into chaos’ on one side and, on the other, the effort of judges actively looking for ways not to close the door on valuable innovation where inflexible legislation was about to become an impassable choke point. The analysis then moves away from the high-budget, large-scale innovation projects financed by the giants of the Internet era. Instead, building upon the findings of Yochai Benkler on the subject of networked creativity, it brings forth a type of innovation that brings together networked individuals, sharing and building upon each other’s results instead of competing, while often working for non-economic motivations. It is seemingly the same type of innovation, deeply rooted in the so-called ‘nerd culture’, that powered the early years of the 20th century digital revolution. As this culture was put on trial when Oracle famously sued Google for reuse of Java in the Android mobile operating system, the commentary emerging from the surrounding debate allowed to draw more general conclusions about what powers the digital evolution in a networked environment. Lastly, analysing the current trends in European cases, the analysis concludes by offering a rationale as to why a transformative use exception would allow courts to openly engage in the types of reasoning that seem to have become a necessity in cases on the fringes of copyright.