Lawrence Lessig's Dystopian Vision


 
 
 
 Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. 
 
 There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, 
 
 every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8)
 
 
 
 Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes.
 
 The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. 
 
 Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection:
 
 Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11)
 
 
 The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. 
 
 In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote:
 
 Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118)
 
 
 Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Ja

Keywords: results of creative activity, intellectual property law, creative freedom,subjective and objective aspects of intellectual property law, subjective and objectiveaspects of creative freedom At the present stage of intellectual property science developmentresearchers continue discussions on the nature of intellectual property law and itscomponents. In the intellectual property law history, the legal doctrine and legislationadmit a certain connection between creators and their results of intellectualcreative activity as well as the relations that arise as a result of their creation. Consideringthe basic approaches to intellectual property rights we cannot ignore its obviouscomponent attribute of ideal nature, so the system of intellectual propertyrights protection includes not only property or exclusive intellectual property rights, but also personal non-property rights. Intellectual property law in the objectiveacceptation is a system of rights. In the subjective acceptation it always combinestwo components: non-material and material. Legislative rights to the object ofintellectual property rights are a legal confirmation of the existing and inviolableconnection between the creator and their object of intellectual property rights. Intellectualproperty law combines personal, intangible and property interests of thecreator. It is aimed to combine all these interests with the interests of other people.The law determines the procedure for using and receiving remuneration as a resultof intellectual property rights realization by the creator or their legal successors.The subject of intellectual property rights is a person who owns personal non-propertyand (or) exclusive property rights of intellectual property. The subjective aspectof intellectual property rights reflects the interests that the creator seeks tosatisfy by creating an object of intellectual property rights. There are three main interestsof the creator which they can satisfy by exercising intellectual propertyrights: recognition interest, financial reward interest and interest in their intellectualproperty rights protection. The object of intellectual property rights is a resultof intellectual and creative work of the subject who always owns personal intangibleintellectual property rights on the basis of natural law and legislation and this isproceeding from the very beginning of the process and as a result of creation of intellectualproperty rights object. It is worth mentioning that according to the lawthe personal intangible intellectual property rights remain in force without limit oftime and cannot be alienated (transferred) except it is expressed by law.

The single most significant issue that intellectual property lawyers have had to deal with in recent years has been the impact of the Internet on copyright. It has raised more than mere legal queries, obliging society as a whole to reconsider the fundamental bargain of capitalism – private gain versus the public good. However, the authors progressed beyond this specific social bargain to consider the role played by commercial giants that either own or have a shared interest in the works of their creative artists, which in turn requires us to scrutinize the true purpose of copyright law – the guarantee of a social bargain or a tool for pure economic protection. In an attempt to chart a suitable path for the future development of copyright law, as applicable to commercial giants and the Internet, the authors have chosen to critique Professor Lessig's theory, namely that the Internet and intellectual property law are being used by powerful media forces as a tool for suppressing creativity in the pursuit of pure economic benefit. The bleak view adopted by Lessig of the Internet and related intellectual property law, which he perceived as impeding progress, frustrating creativity and detracting from the positive social impact the Internet can have on society, is examined and ultimately regarded as being the equivalent of Dickens' ghost of Christmas yet to come and grounded in the Chancery lawyers of Victorian England depicted in Dickens' Bleak House.3 The authors conclude that the fundamental bargain that must be honoured, no matter what the social or commercial marketplace may be, is that a creator must be afforded such legal protection as to induce him or her to create. Whilst this may eventually amount to an updated and slightly more pragmatic version of current intellectual property law, it should certainly amount to more than the Creative Commons licences that were championed by Lessig. The authors welcome comment and discussion.

ABOUT THE AUTHORS

The article is devoted to the study of the general provisions of intellectual property law in Ukraine. The article notes that the importance of protecting property rights in the intellectual sphere has been growing rapidly in recent decades. A theoretical and practical understanding of the nature of intellectual property rights was carried out based on the analysis of current legislation and available scientific, methodical and journalistic materials. The list of laws that regulate activities in the field of intellectual property, both at the national and international level, is given. It is interesting to note that in Ukraine there are quite a lot of special legislative acts regulating the above activities. Attention is focused on the adaptation of Ukrainian legislation to the legal system of the European Union. International legal acts regulating the protection of intellectual property rights are given. Scientific and regulatory approaches to defining the concept of intellectual property rights are considered. It is established that this concept can be considered in two ways: objective and subjective. In an objective sense, in the legal literature, intellectual property law is considered as a system of legal norms that regulates homogeneous social relations in the field of intellectual property. In a subjective sense, the right of intellectual property is considered as personal property and non-property rights of natural persons, which according to the current legislation belong to the authors for the results of intellectual activity. Special attention is paid to the interpretation of the concepts of property and non-property intellectual property rights. Property intellectual property is the author's rights to the results obtained from his creative activity, similar to the property rights of those who create material objects with their labor (devices, devices, mechanisms, new information technologies, etc.). Non-property intellectual property rights are a set of moral, mental, rational, intellectual and other human rights, which by their nature cannot be alienated from the owner. A comparative analysis was made between intellectual property law and property law in general, and their relationship was also analyzed.

The role of institutions in mediating the use of intellectual property rights has long been neglected in debates over the economics of intellectual property. In a path-breaking work, Rob Merges studied what he calls collective rights organizations, industry groups that collect intellectual property rights from owners and license them as a package. Merges finds that these organizations ease some of the tensions created by strong intellectual property rights by allowing industries to bargain from a property rule into a liability rule. Collective rights organizations thus play a valuable role in facilitating transactions in intellectual property rights. There is another sort of organization that mediates between intellectual property owners and users, however. Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners). How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is open or closed. It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves. Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have studied the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries. This is no accident; interface standards are much more prevalent in those industries than in other fields. In Part I, I provide some background on SSOs themselves, and discuss the value of group standard setting in network markets. In Part II, I discuss my empirical research, which demonstrates a remarkable diversity among SSOs even within a given industry in how they treat intellectual property. In Part III, I analyze a host of unresolved contract and intellectual property law issues relating to the applicability and enforcement of such intellectual property policies. In Part IV, I consider the constraints the antitrust laws place on SSOs in general, and on their adoption of intellectual property policies in particular. Part V offers a theory of SSO intellectual property rules as a sort of messy private ordering, allowing companies to bargain in the shadow of patent law in those industries in which it is most important that they do so. Finally, in Part VI I offer ideas for how the law can improve the efficiency of this private ordering process. In the end, I hope to convince the reader of four things. First, SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives in different industries. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, the law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. And enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law, issues that will need to be resolved if SSO IP rules are to fulfill their promise of solving patent holdup problems. My fourth conclusion is an optimistic one. SSOs are a species of private ordering that may help solve one of the fundamental dilemmas of intellectual property law: the fact that intellectual property rights seem to promote innovation in some industries but harm innovation in others. SSOs may serve to ameliorate the problems of overlapping intellectual property rights in those industries in which IP is most problematic for innovation, particularly in the semiconductor, software, and telecommunications fields. The best thing the government can do is to enforce these private ordering agreements and avoid unduly restricting SSOs by overzealous antitrust scrutiny.

Author(s): Lemley, Mark A. | Abstract: The role of institutions in mediating the use of intellectual property rights has long been neglected in debates over the economics of intellectual property. In a path-breaking work, Rob Merges studied what he calls collective rights organizations, industry groups that collect intellectual property rights from owners and license them as a package. Merges finds that these organizations ease some of the tensions created by strong intellectual property rights by allowing industries to bargain from a property rule into a liability rule. Collective rights organizations thus play a valuable role in facilitating transactions in intellectual property rights.There is another sort of organization that mediates between intellectual property owners and users, however. Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners).How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is open or closed. It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves.Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have studied the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries. This is no accident; interface standards are much more prevalent in those industries than in other fields. In Part I, I provide some background on SSOs themselves, and discuss the value of group standard setting in network markets. In Part II, I discuss my empirical research, which demonstrates a remarkable diversity among SSOs even within a given industry in how they treat intellectual property. In Part III, I analyze a host of unresolved contract and intellectual property law issues relating to the applicability and enforcement of such intellectual property policies. In Part IV, I consider the constraints the antitrust laws place on SSOs in general, and on their adoption of intellectual property policies in particular. Part V offers a theory of SSO intellectual property rules as a sort of messy private ordering, allowing companies to bargain in the shadow of patent law in those industries in which it is most important that they do so. Finally, in Part VI I offer ideas for how the law can improve the efficiency of this private ordering process.In the end, I hope to convince the reader of four things. First, SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives in different industries. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, the law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. And enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law, issues that will need to be resolved if SSO IP rules are to fulfill their promise of solving patent holdup problems.My fourth conclusion is an optimistic one. SSOs are a species of private ordering that may help solve one of the fundamental dilemmas of intellectual property law: the fact that intellectual property rights seem to promote innovation in some industries but harm innovation in others. SSOs may serve to ameliorate the problems of overlapping intellectual property rights in those industries in which IP is most problematic for innovation, particularly in the semiconductor, software, and telecommunications fields. The best thing the government can do is to enforce these private ordering agreements and avoid unduly restricting SSOs by overzealous antitrust scrutiny.

Harvesting Intellectual Property

It has been over 12 years since the passage of the Copyright Term Extension Act (CTEA), a disputed law that has given copyright holders an extra 20 years of legal protection for their works. The law withstood a constitutional challenge and now individual authors enjoy protection for 70 years after their death while rights of corporate authors endure for 95 years. This piece of legislation is an egregious example of the ability of powerful content providers to capture policy makers, since it is hard to argue that this extension promotes justice or serves the public interest by stimulating creativity. No author is apt to be incentivized by an extra 20 years of protection after his or her death. Nor does it seem a matter of social justice to have rights with this sort of longevity, especially when the legitimate needs of future creators are taken into account. The balance between individual rights and the common good must be carefully calibrated and this law creates a critical imbalance that will be difficult to remedy. The CTEA has been demonized by many legal scholars and certainly deserves repudiation. Along with several parts of the Digital Millennium Copyright Act (DMCA) it has contributed to the copyright thicket that complicates an author’s efforts to use older copyrighted sources in a way that goes beyond the parameters of fair use. The CTEA and DMCA have become a rallying cry for opponents of intellectual property rights who come in many different stripes. An array of books by familiar names such as Lessig (Free Culture) and Boyle (Public Domain) has recently been published attacking the whole intellectual property regime and calling for systematic reform. More radical works by authors like Drahos (Information Feudalism) often seek to undermine the philosophical foundation of copyright and patent law. What most of these books share in common is advocacy for minimal protections that will provide more access to cultural goods without completely negating authorial entitlement. Rarely does one come upon a book that dares to defend exclusive intellectual property (IP) rights, as a growing number of scholars and jurists join the anticopyright bandwagon. One of the more pungent critiques to appear in recent years is Against Intellectual Monopoly. This book was written by two economists, Michele Boldrin and David Levine, who warn their readers at the outset they are two theorists ‘‘bearing radical ideas’’ (p. 15). The authors’ erudition and wit is on display throughout this well-written book as they attempt to refute the conventional justification for intellectual property rights. Along the way, Boldrin and Levine sort out the deficiencies in recent IP policy. Their basic contention is that intellectual property rights do not adequately resolve the market failure of the underproduction of public goods (i.e., goods that are non-excludable and can be easily copied) because they do not optimize social welfare. These rights lead to excessive monopoly rents and distributional inequities that should not be tolerated in a just society. Despite much sound economic analysis, the book is a strident polemic against the doctrine of property rights as evidenced by their choice of a title. The authors prefer the term ‘‘intellectual monopoly’’ to ‘‘intellectual property,’’ since patents and copyrights give creators a monopoly over an idea. All monopolies create social costs but some monopolies generate benefits that outweigh those costs. In R. A. Spinello (&) Carroll School of Management, Boston College, Chestnut Hill, MA 02467, USA e-mail: spinello@bc.edu

The intersection of intellectual property and human rights is a relatively new site in the search for balance in intellectual property law and policy. Although this intersection opens up intellectual property to a unique kind of interdisciplinary analysis, only the human rights system appears to have seized the opportunity, while its intellectual property rights counterpart remains reluctant to engage. There are, so far, different competing first impressions over the nature of the intersection between intellectual property and human rights. Despite empirical credence of the conflict narrative, the co-existence of complementary thesis of the intellectual property and human rights interface has greater prospects for a meaningful and balanced rapprochement between the two. This chapter argues for critical scrutiny of the human rights appeal of intellectual property rights in order to avoid its potential for being hijacked by stronger stakeholders at the expense of their weaker opponents for whom intellectual property rights have strong paradoxical ramifications.


 
 
 In 1956, John Cage predicted that “in the future, records will be made from records” (Duffel, 202). Certainly, musical creativity has always involved a certain amount of appropriation and adaptation of previous works. For example, Vivaldi appropriated and adapted the “Cum sancto spiritu” fugue of Ruggieri’s Gloria (Burnett, 4; Forbes, 261). If stuck for a guitar solo on stage, Keith Richards admits that he’ll adapt Buddy Holly for his own purposes (Street, 135). Similarly, Nirvana adapted the opening riff from Killing Jokes’ “Eighties” for their song “Come as You Are”. Musical “quotation” is actively encouraged in jazz, and contemporary hip-hop would not exist if the genre’s pioneers and progenitors had not plundered and adapted existing recorded music. Sampling technologies, however, have taken musical adaptation a step further and realised Cage’s prediction. Hardware and software samplers have developed to the stage where any piece of audio can be appropriated and adapted to suit the creative impulses of the sampling musician (or samplist). The practice of sampling challenges established notions of creativity, with whole albums created with no original musical input as most would understand it—literally “records made from records.” Sample-based music is premised on adapting audio plundered from the cultural environment. This paper explores the ways in which technology is used to adapt previous recordings into new ones, and how musicians themselves have adapted to the potentials of digital technology for exploring alternative approaches to musical creativity. Sampling is frequently defined as “the process of converting an analog signal to a digital format.” While this definition remains true, it does not acknowledge the prevalence of digital media. The “analogue to digital” method of sampling requires a microphone or instrument to be recorded directly into a sampler. Digital media, however, simplifies the process. For example, a samplist can download a video from YouTube and rip the audio track for editing, slicing, and manipulation, all using software within the noiseless digital environment of the computer. Perhaps it is more prudent to describe sampling simply as the process of capturing sound. Regardless of the process, once a sound is loaded into a sampler (hardware or software) it can be replayed using a MIDI keyboard, trigger pad or sequencer. Use of the sampled sound, however, need not be a faithful rendition or clone of the original. At the most basic level of manipulation, the duration and pitch of sounds can be altered. The digital processes that are implemented into the Roland VariOS Phrase Sampler allow samplists to eliminate the pitch or melodic quality of a sampled phrase. The phrase can then be melodically redefined as the samplist sees fit: adapted to a new tempo, key signature, and context or genre. Similarly, software such as Propellerhead’s ReCycle slices drum beats into individual hits for use with a loop sampler such as Reason’s Dr Rex module. Once loaded into Dr Rex, the individual original drum sounds can be used to program a new beat divorced from the syncopation of the original drum beat. Further, the individual slices can be subjected to pitch, envelope (a component that shapes the volume of the sound over time) and filter (a component that emphasises and suppresses certain frequencies) control, thus an existing drum beat can easily be adapted to play a new rhythm at any tempo. For example, this rhythm was created from slicing up and rearranging Clyde Stubblefield’s classic break from James Brown’s “Funky Drummer”. Sonic adaptation of digital information is not necessarily confined to the auditory realm. An audio editor such as Sony’s Sound Forge is able to open any file format as raw audio. For example, a Word document or a Flash file could be opened with the data interpreted as audio. Admittedly, the majority of results obtained are harsh white noise, but there is scope for serendipitous anomalies such as a glitchy beat that can be extracted and further manipulated by audio software. Audiopaint is an additive synthesis application created by Nicolas Fournel for converting digital images into audio. Each pixel position and colour is translated into information designating frequency (pitch), amplitude (volume) and pan position in the stereo image. The user can determine which one of the three RGB channels corresponds to either of the stereo channels. Further, the oscillator for the wave form can be either the default sine wave or an existing audio file such as a drum loop can be used. The oscillator shapes the end result, responding to the dynamics of the sine wave or the audio file. Although Audiopaint labours under the same caveat as with the use of raw audio, the software can produce some interesting results. Both approaches to sound generation present results that challenge distinctions between “musical sound” and “noise”. Sampling is also a cultural practice, a relatively recent form of adaptation extending out of a time honoured creative aesthetic that borrows, quotes and appropriates from existing works to create new ones. Different fields of production, as well as different commentators, variously use terms such as “co-creative media”, “cumulative authorship”, and “derivative works” with regard to creations that to one extent or another utilise existing works in the production of new ones (Coombe; Morris; Woodmansee). The extent of the sampling may range from subtle influence to dominating significance within the new work, but the constant principle remains: an existing work is appropriated and adapted to fit the needs of the secondary creator. Proponents of what may be broadly referred to as the “free culture” movement argue that creativity and innovation inherently relies on the appropriation and adaptation of existing works (for example, see Lessig, Future of Ideas; Lessig, Free Culture; McLeod, Freedom of Expression; Vaidhyanathan). For example, Gwen Stefani’s 2004 release “Rich Girl” is based on Louchie Lou and Michie One’s 1994 single of the same title. Lou and One’s “Rich Girl”, in turn, is a reggae dance hall adaptation of “If I Were a Rich Man” from Fiddler on the Roof. Stefani’s “na na na” vocal riff shares the same melody as the “Ya ha deedle deedle, bubba bubba deedle deedle dum” riff from Fiddler on the Roof. Samantha Mumba adapted David Bowie’s “Ashes to Ashes” for her second single “Body II Body”. Similarly, Richard X adapted Tubeway Army’s “Are ‘Friends’ Electric?’ and Adina Howard’s “Freak Like Me” for a career saving single for Sugababes. Digital technologies enable and even promote the adaptation of existing works (Morris). The ease of appropriating and manipulating digital audio files has given rise to a form of music known variously as mash-up, bootleg, or bastard pop. Mash-ups are the most recent stage in a history of musical appropriation and they epitomise the sampling aesthetic. Typically produced in bedroom computer-based studios, mash-up artists use software such as Acid or Cool Edit Pro to cut up digital music files and reassemble the fragments to create new songs, arbitrarily adding self-composed parts if desired. Comprised almost exclusively from sections of captured music, mash-ups have been referred to as “fictional pop music” because they conjure up scenarios where, for example, Destiny’s Child jams in a Seattle garage with Nirvana or the Spice Girls perform with Nine Inch Nails (Petridis). Once the initial humour of the novelty has passed, the results can be deeply alluring. Mash-ups extract the distinctive characteristics of songs and place them in new, innovative contexts. As Dale Lawrence writes: “the vocals are often taken from largely reviled or ignored sources—cornball acts like Aguilera or Destiny’s Child—and recast in wildly unlikely contexts … where against all odds, they actually work”. Similarly, Crawford argues that “part of the art is to combine the greatest possible aesthetic dissonance with the maximum musical harmony. The pleasure for listeners is in discovering unlikely artistic complementarities and revisiting their musical memories in mutated forms” (36). Sometimes the adaptation works in the favour of the sampled artist: George Clinton claims that because of sampling he is more popular now than in 1976—“the sampling made us big again” (Green). The creative aspect of mash-ups is unlike that usually associated with musical composition and has more in common with DJing. In an effort to further clarify this aspect, we may regard DJ mixes as “mash-ups on the fly.” When Grandmaster Flash recorded his quilt-pop masterpiece, “Adventures of Grandmaster Flash on the Wheels of Steel,” it was recorded while he performed live, demonstrating his precision and skill with turntables. Modern audio editing software facilitates the capture and storage of sound, allowing mash-up artists to manipulate sounds bytes outside of “real-time” and the live performance parameters within which Flash worked. Thus, the creative element is not the traditional arrangement of chords and parts, but rather “audio contexts”. If, as Riley pessimistically suggests, “there are no new chords to be played, there are no new song structures to be developed, there are no new stories to be told, and there are no new themes to explore,” then perhaps it is understandable that artists have searched for new forms of musical creativity. The notes and chords of mash-ups are segments of existing works sequenced together to produce inter-layered contexts rather than purely tonal patterns. The merit of mash-up culture lies in its function of deconstructing the boundaries of genre and providing new musical possibilities. The process of mashing-up genres functions to critique contemporary music culture by “pointing a finger at how stifled and obvious the current musical landscape has become. … Suddenly rap doesn’t hav

This Article examines the -symbiotic relationship between copyright and contract law. The intellectual property bargain, or the delicate balance that allegedly exists in current intellectual property law, cannot be seen merely as a matter of a balance stated in property law rules. An interaction between intellectual property and contract has always been a primary characteristic of intellectual property distributed in the open market and that interaction is central to whatever balance has been achieved. When one speaks about an existing balance in the property rights sector, it is futile to focus solely on the statutory provisions of the copyright, patent or trademark laws. One must, of necessity, understand and incorporate the fact that the policy choice has always assumed that property rights are routinely transferred, waived, released, and licensed. Only the most naive observer, or one with a clear political agenda, can look at the intellectual property laws and their history and suggest that policy in the property sphere trumps or precludes the influence of contract. In contractual relationships, underlying property rights are often relatively unimportant. They provide rules that state a legal position that exists between the contracting parties unless the parties otherwise agree. Contract law provides other default rules. In the digital world, the contract rather than the underlying property law defines the product. This being said, however, there are some settings in which contract law, intellectual property, or competition law place limits on the ability to enforce some contract terms. This Article explores some of these areas and describes their limited role in modem commerce.

The purpose of this article is to consider problematic issues regarding the training of specialists in the field of intellectual property law, taking into account the European experience. The situation with regard to the specified problem in Ukraine, in particular, the acquisition of knowledge in the field of intellectual property law in national institutions of higher education, was also investigated. The training of these specialists is extremely important for Ukraine, given the increase in violations in the field of intellectual property rights. It is also important to increase respect for intellectual property rights, protection of intellectual property rights, and generally the culture of using objects of intellectual property rights, which is ensured directly in the process of obtaining general knowledge in this field. The methodological basis of the research is general scientific and special methods of scientific knowledge. The use of these methods made it possible to analyze the problems of training specialists in the field of intellectual property law in Ukraine and to describe the peculiarities of their training in European countries. Results: Ukraine should create the proper conditions to ensure quality higher education in intellectual property law, based on an interdisciplinary approach. The level of knowledge of intellectual property law should be increased as part of the acquisition of relevant competencies in other specialties with the aim of increasing competitive intellectual capital for the sake of high-tech, innovative development of the country, creating conditions for self-realization and creativity of the individual, ensuring the needs of society, the labor market and the state in qualified personnel. Discussion: the lack of intellectual property law disciplines in higher education institutions, which are part of the national education system, adapted for relevant specialties, which would contribute to the acquisition of knowledge in the field of intellectual property law not only at the level of specialized master’s degrees in intellectual property law (in law, management ), but also other specialties. There are also no joint master’s programs in intellectual property law with the World Intellectual Property Organization in Ukraine. There is also no ongoing work on training and upgrading the qualifications of the teaching staff involved in teaching courses on intellectual property law both within the framework of specialized master’s programs and disciplines on intellectual property law for various fields of knowledge in general.

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

Arguments for strong intellectual property protection proceed on the assumption that exclusive rights are necessary to generate the incentives that encourage intellectual production. However, recent events suggest that that this assumption is questionable. Many creative endeavors are flourishing without strong intellectual property protection. Examples include fashion, stand-up comedy, magic, cuisine, and software (consider Linux, Apache, Firefox). Academic research has long been conducted under a sharing regime, and even after the Bayh-Dole Act permitted universities to claim patent rights in faculty inventions, the Mertonian norm of communalism continues to exert a strong influence over academic practices. And as Eric von Hippel has amply demonstrated, users generate and share the fruits of their creativity in contexts as varied as extreme sports, surgery, library science, and commercial high-tech manufacturing. Now that the existence of these robust forms of production has been recognized, it is tempting to argue that traditional intellectual property rights should be abolished. At the same time, however, there may be limits to creative production outside the intellectual property paradigm. Ostensibly open systems are sometimes functionally dependent on copyright, patent, trademark, or trade secrecy law. The operation of these systems can also be highly contingent – sometimes on the innovative industry at issue or the technological infrastructure supporting it; sometimes on the sensibilities of particular individuals. Much of the theoretical work treats the education of creative workers as exogenous to the problem of innovation, but the calculus can vary once the need to motivate the acquisition of human capital is taken into account. There are also normative problems: Open innovation may be nonoptimal, it may lead to undesirable strategies for maintaining a competitive advantage, and it can be exploitative of knowledge workers. This paper therefore starts from the proposition that intellectual property rights will not soon disappear. It is intended to contribute to a new conversation on how intellectual property law ought to change in order to accommodate and sustain what Mario Biagioli has termed IP without IP (Intellectual Production without Intellectual Property).