Human Rights Approach – Continental Europe

Utilitarian – Anglo American –based on the work of Jeremy Bentham, innovation is not protectable and not intrinsically valuable so as to be valuable, one has to prove that IP is good for it to get protection, is it useful.  Utilitarianism finds expression in Article 1 of he American Constitution, the idea is that for copyright and patents to be protected they must be able to promote useful art and science.  The question is which comes first, the promotion of useful arts and science or is it the protection of IP?  The whole debate of incentive regimes.

There are two broad typologies of incentives.  They may be ex post facto or they may be ex ante, they may be to the creator or innovator or they may be to others.

Ex post facto are things like Oscar Awards all these are post facto.

Rival publicity issues:

Ex ante -  this is where the award is given before the product to give incentive.  It is used to identify talent.  University of Nairobi giving grants for research up to KShs. 400,000/-.     Kenya Medical Research Institutes gives money as incentives for research on medicines for things such as AIDS, and in Biotechnology.  Tusker Project Fame giving incentives to people with musical talent -  ex ante, Face of Africa .  In Eldred v Ashcroft (John Ashcroft was the AG America) Eric Edred had a school going daughter and the daughter where she was going to school were always being asked to read some very old books. 
Eldred being a computer geek started reducing the books into digital format so that his daughter could enjoy reading the old books.  One day the US Government decided they were going to extend copyright by 20 years which meant that what Eldred was turning into digital information was going to be copyrightable because the period was going to be retroactive.
 Eldred went to Harvard at the Backman Centre and told the professors that he wished to continue digitising the books inspite of what Congress had decided.  In the meantime the US Congress passed the Sonny Bono motion on Extending Copyright to 700 (CTEA)  Copyright Time Extension Act.  People started criticising the Act which meant that copyright would last for life plus fifty.

In the Supreme Court Eldred lost 7 to 2.  The argument at the Supreme Court for Eldred were that for a long time Congress had extended copyright time which was contrary to the Constitution which states that Copyright should have limited time. But the other were arguing that limited could mean eternity minus a day.  The other argument was on incentives and the question was who was getting the incentives, the creator or their dependants.  Experts were brought to bring in their opinion.
The question is what is the optimal, or efficient copyright duration.


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