Competitive advantage in the international market of laws: the case of copyright law

Abstract

ABSTRACTThis article identifies efficiency, certainty, and agility as essential facilitators of a copyright system’s ability to attract foreign direct investment (FDI) to the cultural and creative industries in today’s knowledge economy. The article further provides a set of principles and rules that enable these characteristics in copyright law. Whereas some of these copyright principles and rules are inherently compatible and, hence, can concurrently serve the efficiency, certainty, and agility of copyright law, the co-existence of some of them requires legislative and judicial balancing, as neither of them should defeat the purpose of the other.Furthermore, given the role that legal efficiency, certainty, and agility play in the sustainability of copyright law, legislatures should weigh these characteristics in the copyright law balance when enacting or amending copyright statutes. Courts also should consider these qualities when reconciling competing copyright law interests via statutory interpretation. Both types of balancing are necessary to ensure that the economic competitive advantage of copyright law does not prejudice its fairness foundations.From a business strategy perspective, firms in the cultural and creative industry may want to consider the efficiency, certainty, and agility of a copyright system when choosing their investment destinations.KEYWORDS: Intellectual propertycopyrightinvestmentregulatory competitionmarket of lawsknowledge economy AcknowledgmentAn earlier version of this article was presented at the IP Researchers Europe Conference 2023 (IPRE 2023), Geneva, 29–30 June 2023. The author thanks the participants in the IPRE 2023 and the anonymous reviewers of Information & Communications Technology Law for their valuable feedback.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University Press, 2006) 33.2 Organisation for Economic Co-Operation and Development (OECD), ‘The Knowledge-Based Economy’ (1996) OECD General Distribution OCDE/GD(96)102, 9 < https://one.oecd.org/document/OCDE/GD%2896%29102/En/pdf> accessed 13 August 2023; Asia-Pacific Economic Cooperation (APEC) Economic Committee, ‘Towards Knowledge-Based Economies in APEC’ (2000) vii accessed 13 August 2023.3 Rafael Gely and Leonard Bierman, ‘The Law and Economics of Employee Information Exchange in the Knowledge Economy’ (2004) 12 Geo Mason L Rev 651, 660.4 ibid.5 OECD, ‘The Knowledge-Based Economy’ (n 2), 7.6 World Bank, ‘The Four Pillars of The Knowledge Economy’ accessed 5 June 2023.7 Alina Ng, ‘Copyright's Empire: Why the Law Matters’ (2007) 11 Marq Intell Prop L Rev 337, 340.8 Michael Schwager, Director General, IP Australia. Foreword. In: IP Australia, ‘The 2021 Australian Intellectual Property Report’ (2021) accessed 13 August 2023; Keith E Maskus, ‘The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology Transfer’ (1998) 9 Duke J Comp & Int’l L 109, 152.9 Richard Watt, ‘An Empirical Analysis of the Economics of Copyright: How Valid Are the Results of Studies in Developed Countries for Developing Countries?’ in WIPO (ed), The Economics of Intellectual Property: Suggestions for Further Research in Developing Countries and Countries with Economies in Transition (WIPO, 2009) 65.10 See Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299 (TRIPS Agreement).11 Jerome H Reichman, ‘Securing Compliance with the TRIPS Agreement After US v. India’ (1998) 1 J Int Econ Law 585, 585.12 Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, revised 24 July 1971, amended 28 September 1979) S Treaty Doc No 99-27 (1986) (Berne Convention).13 ibid art 7(1).14 See eg, Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights [2006] OJ L372/12 art 1.1 (setting the general term of copyright protection of literary and artistic works in the European Union to 70 years after the death of the author).15 See Hon. Richard A Gephardt, A Representative in Congress from the State of Missouri, United States, 'Statement' in United States. Congress. House. Committee on the Judicial. Subcommittee on Courts, Intellectual Property, and the Administration of Justice (ed), Industrial Design Protection: Hearings before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the Committee on the Judiciary House of Representatives, One Hundred First Congress, Second Session on Industrial Innovation and Technology Act of 1987, Industrial Design Anti-Piracy Act of 1989 and Design Protection Act of 1989 (U.S. Government Printing Office, 1991) 90.16 See eg, IP Australia, ‘IP Australia and the Future of Intellectual Property Megatrends, Scenarios and their Strategic Implications’ (2017) 5–7 accessed 13 August 2023.17 See Ximena Benavides, ‘Competition Among Laws’ (2008) 77 Rev Jur UPR 373, 376 (arguing that when countries reform their legal systems by borrowing from foreign laws, they would choose efficient legal rules whose adaptation involves minimum costs).18 Benedict Oramah and Richman Dzene, ‘Globalisation and the Recent Trade Wars: Linkages and Lessons’ (2019) 10 Glob Policy 401, 402; Aaditya Mattoo, Nadia Rocha and Michele Ruta, ‘The Evolution of Deep Trade Agreements’ (2022) 27 PJPS 35, 36.19 Horst Eidenmüller, ‘The Transnational Law Market, Regulatory Competition, and Transnational Corporations’ (2011) 18 Ind J Global Legal Stud 707, 713–14.20 See eg, ——, ‘Law-Made in Germany’ (2014) 5 accessed 5 June 2023; Simon Deakin, ‘Legal Diversity and Regulatory Competition: Which Model for Europe?’ (2006) 12 ELJ 440, 440; Erin A O'Hara and Larry E Ribstein, The Law Market (OUP, 2009) 3–4; Abhishek Saurav and Ryan Kuo, ‘The Voice of Foreign Direct Investment: Foreign Investor Policy Preferences and Experiences in Developing Countries’ (2020) World Bank Policy Research Working Paper No. 9425, 3 accessed 13 August 2023; Kusi Hornberger, Joseph Battat and Peter Kusek, ‘Attracting FDI: How Much Does Investment Climate Matter?’ (2011) The World Bank Note No. 327, 4 accessed 13 August 2023; Konstantinos Dellis, David Sondermann and Isabel Vansteenkiste, ‘Determinants of FDI Inflows in Advanced Economies: Does the Quality of Economic Structures Matter?’ (2017) European Central Bank Working Paper Series No. 2066, 19 accessed 13 August 2023. But see Amanda Perry, ‘An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality’ (2000) 15 Am U Int'l L Rev 1627, 1628–57 (noting the scholarly consensus on the importance of law as a factor in attracting FDI but using Sri Lanka as a case study to argue that ‘the role of legal systems as a determinant of FDI is neither straightforward, nor proven, nor uniform’).21 O'Hara and Ribstein (n 20) 3–4; Dan Wielsch, ‘Global Law's Toolbox: Private Regulation by Standards’ (2012) 60 AJCL 1075, 1075–76. Eidenmüller (n 19) 749. But see Claudio M Radaelli, ‘The Puzzle of Regulatory Competition’ (2004) 24 J Public Policy 1, 3 (doubting the assumed impact of regulation on firms’ foreign investment decisions).22 See USAID Regional Trade Program for CAFTA-DR, ‘Organizational Restructuring Proposal for the “Dirección General De Promoción De Comercio Exterior E Inversión” in Honduras’ (2009) accessed 5 June 2023 (recommending the adoption of national strategies to attract FDI).23 Heiko Maas, Federal Minister of Justice and Consumer Protection. Foreword. In: ——, ‘Law-Made in Germany’ (2014) 3 accessed 5 June 2023. See also the Law Society of England and Wales, ‘England and Wales: A World Jurisdiction of Choice’ (highlighting the benefits of choosing English law to govern international transactions).24 Eidenmüller (n 19) 748; Michael S Knoll, ‘The Connection Between Competitiveness and International Taxation’ (2012) 65 Tax L Rev 349, 356.25 Anthony Ogus, ‘Competition between National Legal Systems: A Contribution of Economic Analysis to Comparative Law’ (1999) 48 ICLQ 405, 408.26 See Edwin Mansfield, ‘Intellectual Property Protection, Foreign Direct Investment, and Technology Transfer’ (1994) International Finance Corporation Discussion Paper No. 19, vii accessed 15 August 2023 (showing empirically that US businesses consider the levels of IP protection in a country when making technology transfer decisions).27 U.S. Chamber of Commerce Global Innovation Policy Center, ‘2022 International IP Index: Compete for Tomorrow’ (2022) 32 accessed 5 June 2023.28 Dan L Burk, ‘Trademark Doctrines for Global Electronic Commerce’ (1998) 49 SC L Rev 695, 734.29 Joel P Trachtman, Review Essay: The International Law Market (2010) 104 AJIL 140, 141; World Bank Group, ‘Doing Business 2020’ (2020) vii accessed 5 June 2023. See also Jürgen Basedow, ‘Comparative Law and its Clients’ (2014) 62 AJCL 821, 821 (describing national legislatures as a ‘client’ of comparative law).30 Benavides (n 17) 390.31 Ugo Mattei, Comparative Law and Economics (University of Michigan Press, 1998) xiii.32 Burk (n 28) 734–35; Trachtman (n 29) 142.33 Burk (n 28) 734–35.34 J H Reichman, ‘From Free Riders to Fair Followers: Global Competition under the TRIPS Agreement’ (1997) 29 NYU J Int'l L & Pol 11, 15–16; Graeme Dinwoodie, ‘The WIPO Copyright Treaty: A Transition to the Future of International Copyright Lawmaking?’ (2010) 57 Case WResLRev 751, 755–57.35 See the discussion of the race-to-the-bottom argument and its shortcomings in Radaelli (n 21) 1–23; Alvin K Klevorick, ‘The Race to the Bottom in a Federal System: Lessons from the World of Trade Policy’ (1996) 14 Yale L & Pol'y Rev 177.36 Richard B Stewart, ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy’ (1977) 86 YLJ 1196, 1212.37 Klevorick (n 35) 178.38 See, e.g., Daniele Archibugi and Andrea Filippetti, ‘The Globalisation of Intellectual Property Rights: Four Learned Lessons and Four Theses’ (2010) 1 Glob Policy 137, 142.39 TRIPS Agreement (n 10) art 1(1): Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement … .See also Berne Convention (n 12) art 19 (‘The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union’).40 See Peter Drahos, ‘BITs and BIPs: Bilateralism in Intellectual Property’ (2001) 4 JWIP 791, 793 (defining a TRIPS-plus agreement as that which ‘requires a Member to implement a more extensive standard; or which eliminates an option for a Member under a TRIPS standard’).41 Ruth L Okediji, ‘Legal Innovation in International Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement’ (2014) 36 U Pa J Int’l L 191, 231–32; Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (OUP, 2009) 13.42 Peter K Yu, ‘The International Enclosure Movement’ (2007) 82 Ind LJ 827, 828. See also UNDP and UNAIDS, The Potential Impact of Free Trade Agreements on Public Health (UNAIDS, 2012) 3 (noting that TRIPS-plus rules may undermine the role of the flexibilities available under TRIPS Agreement). But see Mohammed K El-Said, ‘TRIPS-Plus, Public Health and Performance-Based Rewards Schemes Options and Supplements for Policy Formation in Developing and Least Developed Countries’ (2016) 31 Am U Int'l L Rev 373 (discussing examples of countries implementing TRIPS-plus obligations in a manner reducing the negative ramifications of this model of protection).43 Radaelli (n 21) 3.44 See eg, Jeffrey A Frankel and Andrew K Rose, ‘Is Trade Good or Bad for the Environment? Sorting out the Causality’ (2005) 87 Rev Econ Stat 85, 90.45 Klevorick (n 35) 179.46 See Constitution of the Federative Republic of Brazil, (Constitutional text of October 5, 1988, with the alterations introduced by Constitutional Amendments No. 1/1992 through 64/2010 and by Revision Constitutional Amendments No. 1/1994 through 6/1994) art 225. See also PSB et al v Brazil (on Climate Fund) (ADPF 708), 4 July 2022 accessed 5 June 2023 (recognizing the Paris Agreement on climate change as a human rights treaty).47 See eg, Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area (signed 24 October 2000, entered into force 17 December 2001) 2000 UST LEXIS 160.48 See Elizabeth F Judge and Saleh Al-Sharieh, ‘Join the Club: The Implications of the Anti-Counterfeiting Trade Agreement's Enforcement Measures for Canadian Copyright Law’ (2012) 49 ALR 740 (discussing the negotiations and final text of ACTA).49 Michael Geist, ‘The European Parliament Rejects ACTA: The Impossible Becomes Possible’ (4 July 2012) accessed 5 June 2023.50 European Parliament, ‘Everything You Need to Know about ACTA’ accessed 5 June 2023.51 For a discussion of the role of the principle of balance in Canadian copyright law reforms, see the collection of articles in Michael Geist (ed), From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010).52 U.S. Const. art. I, § 8, cl. 8.53 Susan K Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (CUP, 2003) 13. See also Ogus (n 25) 407 (discussing how firms may lobby to lower the costs of a national legal system, using the threat to move to jurisdictions with more favorable legal standards).54 Peter K Yu, ‘The Rise and Decline of the Intellectual Property Powers’ (2012) 34 Campbell L Rev 525, 552.55 Niccolò Pisani and Joan Enric Ricart, ‘Offshoring Innovation to Emerging Countries: The Effects of IP Protection and Cultural Differences on Firms’ Decision to Augment Versus Exploit Home-Base-Knowledge’ (2018) 58 Manag Int Rev 871, 901; Richard A Posner, ‘Creating a Legal Framework for Economic Development’ (1998) 13 World Bank Res Obs 1, 3; Benavides (n 17) 383.56 Peter Rodgers and others, ‘Exploring the Determinants of Location Choice Decisions of Offshored R&D Projects’ (2019) 103 J Bus Res 472.57 See Legislative Council Panel on Commerce and Industry, ‘Updating Hong Kong’s Copyright Regime – Outcomes of Public Consultation and Proposed Way Forward’ (19 April 2022, LC Paper No. CB(1)141/2022(03)) para 18 accessed 5 June 2023 (highlighting the ‘effort to maintain a robust and competitive copyright regime’). See also Jacob Katz Cogan, ‘The Idea of Fragmentation’ 105 ASIL PROC 123, 124 (stating that ‘the current world is one of competition among laws and institutions’).58 See the discussion in Section B, above.59 Robert R Wiggins and Timothy W Ruefli, ‘Sustained Competitive Advantage: Temporal Dynamics and the Incidence and Persistence of Superior Economic Performance’ (2002) 13 Organ Sci 82, 84.60 Michael E Porter, Competitive Advantage: Creating and Sustaining Superior Performance (The Free Press, 1985) 3.61 ibid 12.62 ibid.63 ibid 13.64 ibid 14.65 ibid; John L Thompson, Lead with Vision: Manage the Strategic Challenge (International Thomson Business Press, 1997) 52.66 Porter (n 60) 14.67 See The United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Handbook on Policies, Promotion, and the Facilitation of Foreign Direct Investment for Sustainable Development in Asia and the Pacific (United Nations, 2022) 136; Saurav and Kuo (n 20) 3. OECD, Policy Framework for Investment 2015 Edition (OECD Publishing, 2015) 23. Hoon Lee, Glen Biglaiser and Joseph L Staats, ‘Legal System Pathways to Foreign Direct Investment in the Developing World’ (2014) 10 Foreign Policy Analysis 393, 493; World Bank Group, ‘Investment Law Reform: A Handbook for Development Practitioners’ (2010) 83 accessed 15 August 2023; Matthew Stephenson and others, ‘Leveraging Digital FDI For Capacity and Competitiveness: How to Be Smart’ (Policy Brief 2021) 11–12 accessed 5 June 2023. But see Amanda Perry, ‘Effective Legal Systems and Foreign Direct Investment: In Search of the Evidence’ (2000) 49 ICLQ 779, 779 (arguing that different investors may have ‘varying degrees of sensitivity to the effectiveness of legal systems’).68 World Bank Group, ‘Investment Law Reform’ (n 67) 83; The United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Handbook on Policies, Promotion, and the Facilitation of Foreign Direct Investment for Sustainable Development in Asia and the Pacific (United Nations, 2022) 37; Saurav and Kuo (n 20) 3; Lee, Biglaiser and Staats (n 67) 493.69 Douglas G Baird, ‘The Future of Law and Economics: Looking Forward’ (1997) 64 U Chi L R 1129, 1135; Chris William Sanchirico, ‘Deconstructing the New Efficiency Rationale’ (2001) 86 Cornell L Rev 1003, 1005.70 A Mitchell Polinsky, An Introduction to Law and Economics (2nd edn Little Brown & Co Law & Busine, 1989) 7. See also Brooke Coleman, ‘The Efficiency Norm’ (2015) 56 BC L Rev 1777, 1796 (noting the wide acceptance of this definition among law and economics scholars).71 Sanchirico (n 69) 1022 (footnotes omitted).72 Niva Elkin-Koren and Eli M Salzberger, ‘Law and Economics in Cyberspace’ (1999) 19 Int Rev Law Econ 553, 554; Rory Van Loo, ‘Digital Market Perfection’ (2019) 117 Mich L Rev 815, 831.73 R H Coase, ‘The Problem of Social Cost’ (1960) III JL & Econ 1, 15.74 Carl J Dahlman, The Open Field System and Beyond: A Property Rights Analysis of an Economic Institution (CUP, 1980) 80.75 See Perry, ‘An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality’ (n 20) 1629 (discussing the elements of what commentators consider the ideal paradigm for attracting FDI). See also Golden Straight Corporation v Nippon YKK, [2007] UKHL 12, para 1 (holding that ‘the quality of certainty [is] a traditional strength and major selling point of English commercial law’) (Lord Bingham).76 World Bank, World Development Report 1997: The State in a Changing World (OUP, 1997) 32.77 Takis Tridimas, The General Principles of EC Law (OUP, 1999) 163.78 Marzena Kordela, ‘The Principle of Legal Certainty as a Fundamental Element of the Formal Concept of the Rule of Law’ (2008) 110 Rev Notariat 587, 597–600; Venice Commission of the Council of Europe, ‘Rule of Law Checklist’ (Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016) 25–27.79 Kordela (n 78) 601–03; Venice Commission of the Council of Europe (n 78) 25–27.80 Kordela (n 78) 604; Venice Commission of the Council of Europe (n 78) 28; World Bank, World Development Report 1997 (n 76) 36.81 World Bank, World Development Report 1997 (n 76) 32–36.82 ibid 32.83 Venice Commission of the Council of Europe (n 78) 26; JB Ruhl, ‘The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy’ (1996) 49 VLR 1407, 1409.84 Roscoe Pound, Interpretations of Legal History (The Macmillan Company, 1923) 1.85 C Kaufman, ‘The Scientific Method in Legal Thought: Legal Realism and the Fourteen Principles of Justice’ (1980) 12 St Mary's LJ 77, 111.86 OECD, Middle East and North Africa Investment Policy Perspectives (OECD Publishing, 2021) 64.87 See eg, Mansfield (n 26) vii; Anupam Basu and Krishna Srinivasan, ‘Foreign Direct Investment in Africa-Some Case Studies’ (2002) IMF Working Paper WP/02/61, 15–19 accessed 13 August 2023; Peter Nunnenkamp and Julius Spatz, ‘Intellectual Property Rights and Foreign Direct Investment: A Disaggregated Analysis’ (2004) 140 Rev World Econ 393, 414; Jeong-Yeon Lee and Edwin Mansfield, ‘Intellectual Property Protection and U.S. Foreign Direct Investment’ (1996) LXXVIII Rev Econ Stat 181, 181. Damien Dussaux, Antoine Dechezleprêtre and Matthieu Glachant, ‘The Impact of Intellectual Property Rights Protection on Low-Carbon Trade and Foreign Direct Investments’ (2022) 171 Energy Policy 113269.88 Peter K Yu, ‘The Investment-Related Aspects of Intellectual Property Rights’ (2017) 66 AULR 829, 888 (arguing that the impact of the strength of a country's IP protection on FDI is ambiguous).89 See generally the collection of articles in Paul LC Torremans (ed), Intellectual Property Law and Human Rights, (4th edn Kluwer Law International, 2020) (discussing the relationship between IP and human rights).90 Jane C Ginsburg, ‘“European Copyright Code” – Back to First Principles (with Some Additional Detail)’ (2011) 58 J Copyright Soc’y USA 265, 267.91 For a review of the different types of copyright law balance, see Dinwoodie (n 34) 754–58.92 William M Landes and Richard A Posner, ‘An Economic Analysis of Copyright Law’ (1989) 18 JLS 325, 326. See also Sanchirico (n 69) 1022 (defining efficiency as a purpose of legal rules).93 Richard A Posner and William M Landes, ‘Indefinitely Renewable Copyright’ (2003) 70 U Chi L Rev 471, 481.94 Some copyright exceptions are mandatory in international copyright law. See, eg, Berne Convention (n 12) art 10(1): It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.95 Pamela Samuelson, ‘Justifications for Copyright Limitations and Exceptions’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (CUP, 2017) 12.96 Ruth L Okediji, ‘Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy’ (2018) International Center for Trade and Sustainable Development Issue Paper No. 43, 37 accessed 15 August 2023; Sean Flynn and Mike Palmedo, ‘The User Rights Database: Measuring the Impact of Copyright Balance’ (2018) Joint PIJIP/TLS Research Paper Series No. 2018–01, 5 < https://digitalcommons.wcl.american.edu/research/56/> accessed 15 August 2023; Fred von Lohmann, ‘Fair Use as Innovation Policy’(2008) 23 Berkeley Tech LJ 1, 2.97 Wendy J Gordon, ‘The Fair Use Doctrine: Markets, Market Failure and Rights of Use’ in Richard Watt (ed), Handbook on the Economics of Copyright: A Guide for Students and Teachers (Edward Elgar, 2014) 87.98 Paul Goldstein, Goldstein on Copyright (3rd edn, 1st supp, Aspen Publishers, 2022) §. 1.14.2.99 Christian Handke and Ruth Towse, ‘Economics of Copyright Collecting Societies’ (2007) 38 IIC 937, 939; Goldstein, Goldstein on Copyright (n 98) §. 1.14.2.100 Goldstein, Goldstein on Copyright (n 98) §. 1.14.2.101 For a discussion of copyright exceptions in copyright law, see Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (CUP, 2017); S Balganesh, N Wee Loon and H Sun (eds), The Cambridge Handbook of Copyright Limitations and Exceptions (CUP, 2021).102 eg, Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858) (Germany) Ch 6.103 eg, Copyright, Designs and Patents Act 1988 (UK) s 29–30.104 eg, 17 USC § 107 (United States).105 See e.g., Michael W Carroll, ‘Fixing Fair Use’ (2007) 85 NCL Rev 1087.106 Gordon (n 97) 83.107 See eg, Jerome H Reichman, ‘The Limits of “Limitations and Exceptions” in Copyright Law’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (CUP, 2017) 292.108 Michael Geist, ‘Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use’ in Michael Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013) 181. Ariel Katz, ‘Fair Use 2.0: The Rebirth of Fair Dealing in Canada’ in Michael Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013) 93.109 Morten Hviid, Simone Schroff and John Street, ‘Regulating Collective Management Organisations by Competition: An Incomplete Answer to the Licensing Problem?’ (2016) 7 JIPITEC 256, 258.110 See Copyright Board of Canada, ‘Collective Societies’ accessed 5 June 2023.111 Copyright Act, RSC 1985, c C-42 (Canada) s 2 (defining ‘collective society’) & Part VII.1 (including the rules on the ‘collective administration of copyright’).112 ibid s 73.113 Hviid, Schroff and Street (n 109) 257–58.114 I Trotter Hardy, ‘An Economic Understanding of Copyright Law's Work-Made-for-Hire Doctrine’ (1988) 12 Colum-VLA JL & Arts 181, 191.115 Berne Convention (n 12).116 Hardy (n 114) 191.117 Copyright, Designs and Patents Act 1988 (UK) s 11.118 See Roger D Blair and Thomas F Cotter, ‘An Economic Analysis of Damages Rules in Intellectual Property Law’ (1998) 39 Wm & Mary L Rev 1585, 1647 (arguing that statutory damages can have an efficiency justification). See also Pamela Samuelson, ‘Statutory Damages: A Rarity in Copyright Laws Internationally, But for How Long?’ (2013) 60 J Copyright Soc’y USA 529 (stating that ‘[s]tatutory damages are uncommon in copyright laws around the world’).119 Business Trends Analysts v. Freedonia Group, 887 F.2d 399 (2d Cir. 1989) at 406, quoting with approval M Nimmer, Nimmer on Copyright § 141.2 at 14–14 – 14–16 (1988).120 ibid.121 Paul Goldstein, Copyright: Principles, Law and Practice, vol 2 (Little, Brown & Co., 1989) 333. See also Blair and Cotter (n 118) 1656.122 17 USC § 504(c)(1) (United States).123 ibid § 504(c)(2).124 Pamela Samuelson and Tara Wheatland, ‘Copyright Statutory Damages: A Remedy in Need of Reform’ (2009) 51 Wm & Mary L Rev 439, 441.125 Blair and Cotter (n 118) 1647.126 See the collection of articles in Michael Geist (ed), From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010); Michael Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013).127 Copyright Act, RSC 1985, c C-42 (Canada) s 38.1.128 ibid s 38.1(1)(a).129 ibid s 38.1(2).130 ibid s 38.1(2).131 ibid s 38.1(1)(b).132 See Telewizja Polsat S.A. v Radiopol Inc., 2006 FC 584 [45] (F Lemieux J) (noting that ‘[t]here should be some correlation between actual damages and statutory damages even though section 38.1 does not speak of actual damages’). But see 2424508 Ontario Ltd. v RallySport Direct LLC, 2022 FCA 24 [28] (holding that there is no statutory requirement of the ‘correlation or proportionality between actual damages and statutory damages’).133 Kamiel J Koelman, ‘Copyright Law and Economics in the EU Copyright Directive: Is the Droit D'auteur Passe?’ (2004) 35 IIC 603, 614.134 See WIPO Copyright Treaty (adopted 20 December 1996, entered into force 6 March 2002) 2186 UNTS 121 art 11: Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.135 Koelman (n 133) 613–14.136 Terri B Cohen, ‘Anti-Circumvention: Has Technology's Child Turned Against Its Mother?’ (2003) 36 Vanderbilt Law Rev 961, 981.137 See Pamela Samuelson, Jerome H Reichman and Graeme Dinwoodie, ‘How to Achie