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Author: Lea Shaver

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Bottlenecks and copyright

Yes, you read that headline correctly. This post explores how Joseph Fishkin’s new theory of equal opportunity applies to… copyright law. As I hinted earlier, this is seemingly an unlikely connection. It is thus a connection that uniquely demonstrates the generativity of Bottlenecks.

Other posts in this symposium by Wendy Greene and Jessica Roberts have explored how Bottlenecks applies in the context of workplace anti-discrimination rules. Brishen Rogers extends the workplace focus by exploring how labor unions fit into the theory. And my own earlier post connects Bottlenecks to legal education reform.

Copyright scholarship, however, is not where we expect to encounter a new theory of equal opportunity. Yet that is where I found myself applying Fishkin’s framework, which finally provided the language and conceptual clarity to express what struck me as so profoundly problematic within my own field.

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Legal education, opportunity, and bottlenecks

Joseph Fishkin’s Bottlenecks offers a new theory of equal opportunity. (See symposium posts here and here.)

What does it mean for legal education?

One of the major contributions of the book is to offer a new social justice perspective from which to evaluate a wide variety of laws and policies, both public and private. The book invites us all to treat opportunity not just as a catch phrase, but really deeply explore its meaning and ramifications.

If we reform legal education not only to attract more students but also to promote social justice, how should we think about legal education’s role in the broader opportunity structure?

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Bottlenecks: The book we all should be reading

Let me start with a confession: I am an unlikely contributor to this symposium.

Bottlenecks: A New Theory of Equal Opportunity, by Joseph Fishkin

Bottlenecks is fundamentally a work of legal philosophy, offering as the subtitle promises, “a new theory of equal opportunity.” The book lays out a new way of thinking about both the purposes and the structure of social opportunity, exploring in depth the implications of this theory for thinking about topics such as class, work, education, gender, anti-discrimination law, and equality as a constitutional value.

I don’t write about any of those things. Maybe you don’t either. So what are we both doing here?

My goal in this post is to convince you that both you and I very much belong in this conversation, because with Bottlenecks, Joey has penned that rare book that can inform projects in fields as diverse as IP (my own) and immigration, bankruptcy and business organizations, family law and criminal law. If there one book of 2014 that I can plausibly claim should be read by everyone in law and public policy, this would be that book.

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Is this really a copyright problem?

Modeling costs and revenues

In the comments to my last post, the skeptical Matt Lister asked a great question…

Say we agree there’s very little being translated into languages like Zulu and we agree that’s a problem. Is the problem that copyright makes it too expensive? Or is the real problem that translation or publication is inherently too expensive, given the limited size of these audiences and low ability to pay?

A theoretical model and some examples

It’s clear that the potential profits from Zulu translations aren’t sufficient to cover the costs. But those costs fall into lots of different categories: copyright licensing fees, the translator’s labor, distribution costs… etc. Would merely eliminating the copyright barrier be enough to tip the equation?

Let’s build a theoretical model first and then my research can look for data points…

P = potential income from book sales
C = costs of copyright compliance (including fees to the copyright owner, transaction costs of negotiating the license, and lawyer’s fees to handle copyright compliance and disputes)
T = costs of performing the translation (translator’s labor)
D = distribution costs (printing costs, shipping costs, overhead, leaving a profit margin for retailers, etc.)

For translated works to be produced, we would need to see that potential sales outweigh the copyright, translation, and distribution costs.

P > C + T + D

We can think about this equation as applying generally to works in a particular language market. Or more accurately, we can think about it applying to any specific work. If potential sales appear to be greater than costs, then the market should produce the work. So, let’s look at some specific works that the market is producing in Zulu right now…

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How do you say “copyright” in Zulu?

Woman reading Zulu newspaper

South African woman reading a newspaper in Zulu

Are the costs and benefits of copyright protection roughly the same in English and in Zulu? Or is copyright law’s impact radically different from one language to another?

Copyright protection gives authors the exclusive right to market their works. This has the benefit of channeling profits back to authors, enhancing the financial incentives to create new works. But it also has the cost of limiting competition, inflating prices for consumers, and restricting public access to existing works.

Copyright scholars have extensively debated these costs and benefits. But we have not yet done much thinking about how the cost-benefit calculus might play out for different languages.

That project lies at the heart of my current work-in-progress, which advocates targeted copyright reforms to promote publishing in lesser-spoken languages.

From an economic perspective, the publishing market is fundamentally different from one language to another. English books can be marketed to an enormous and wealthy global audience. The audience for Zulu works, however, is 1% as large and has significantly less disposable income.

Scholars continue to debate the relative effectiveness of financial versus nonfinancial incentives for authorship. But there is no doubt that the incentives are powerfully present for English-language works. That does not appear to be true for works in Zulu.

According to recent data, 77% of books sold within South Africa are in English, though only one in ten South Africans speaks English at home. The vast majority of South Africans speak African languages such as Zulu. Yet books in all African languages combined account for only 11% of the South African publishing market. Of African language book sales, 89% are textbooks, subsidized by government purchasing.

The copyright system that has so effectively incentivized the production and distribution of works in English has not produced equivalent benefits in Zulu. The costs of copyright protection – including higher prices and barriers to translation – are also particularly burdensome for the Zulu-speaking community.

In theory, the costs of copyright protection may outweigh the benefits in many linguistic communities characterized by small size and low wealth. I’m working now on some case studies to see whether facts on the ground support that prediction.

If so, my suggestion is not to change copyright law generally, but to adjust the rules for certain languages. There are thousands of different linguistic communities in the world, each as unique as the various expressive works that copyright law protects. A one-size-fits-all regime is unlikely to be ideal.

Reforms to strike the right balance could be implemented at the level of national policy making. By treating different languages differently, countries may be able to improve publishing in languages such as Zulu without prejudicing the interests of authors and publishers in the dominant markets.

In a series of posts during my month as a Co-Op guest blogger, I’ll explore how we might structure such reforms and other issues raised by this project.

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From Madhavi to Mad Men

As Zahr Said points out, Madhavi Sunder is by no means the first to critique intellectual property from the perspectives of distributive justice or liberty. Indeed, the author of From Goods to a Good Life: Intellectual Property and Global Justice not only gives due credit to the IP scholars who have written in this vein before her, but provides a compelling intellectual history of the field. What is striking about this particular book project is not so much its break with past approaches, but its breathtaking ambition in positioning the future of the field.

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The Age of Intellectual Property?

Are we in the Age of Intellectual Property?

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)

If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!

Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?

I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:
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