Copyright Users and Personal Property in the Digital Economy
LTEC Lab writer
J.D Candidate 2018
What is ownership? This was the question on everyone’s minds at LTEC Lab’s Faculty Seminar, “Copyright Users and Personal Property in Digital Economy.” Hosted at the University of Windsor’s EPICentre on April 6, 2018, the event was a conversation between Aaron Perzanowski, Professor at Case Western Reserve University School of Law, and Pascale Chapdelaine, Associate Professor at Windsor Law and Chair of LTEC Lab (www.lteclab.com). The speakers were brought together to discuss their recent publications, Professor Chapdelaine’s Copyright User’s Rights: Contracts and the Erosion of Property(OUP, 2017) and Professor Perzanowski’s The End of Ownership: Personal Property in the Digital Economy (MIT Press, 2016) (co-authored with Jason Schultz), as well as issues that transcend their books.
Professor Chapdelaine opened the discussion by asking about the meaning behind the title of Professor Perzanowski’s book. While the title, The End of Ownership, was chosen by its publisher, Professor Perzanowski explained that the title is fitting, as it encapsulates what he and his co-author, Jason Schultz, were trying to communicate. Ownership of digital media goods is declining as consumers are turning to subscription services like Netflix and Spotify. Professor Perzanowski notes that the issue is not confined to digital media, but “applies to a range of consumer goods” including cars and medical devices, as control of these programmed goods is being torn from the hands of the consumer.
For her part Professor Chapdelaine explained that “the Erosion of Property” part of the title of her book alludes to the same phenomenon to describe copyright users’ loss of ownership in digital copies of copyright works they thought they owned, while the book also discusses the rights of users through exceptions to copyright infringement, which are referred to as “users’ rights” by the Supreme Court of Canada.
Professor Perzanowski discussed the loss of ownership in digital copies of works that consumers presumably “buy”, which means more control for the seller through licensing arrangements prohibiting re-sale (and the non-application of copyright’s first sale doctrine to digital copies of copyright works). Professor Perzanowski also illustrated the shift from goods to services with contemporary examples from the tech world. An iPhone is nothing more than a paperweight without the code owned and controlled by Apple. Consumers can no longer obtain physical copies of Photoshop, but rather are able to pay for access to the program through a subscription.
While traditional sale of goods and consumer protection laws do not offer much to consumers of digital products who may be constrained by contract or digital locks to what they expect would be legitimate uses, (courts tending to be deferential to how copyright holders commercialize their works) Professor Chapdelaine noted that the level of protection is even weaker in the case of services than in the case of the sale of goods. Thus as we are shifting increasingly from commercial offerings of goods to services, consumers’ remedies against distributors may be even weaker than before.
Consumer rights emerged and developed in the context of physical goods; however, Professor Perzanowski noted that increasingly, ownership rights are no longer tied to the object. Rather, they are a “carefully cabined set of rights to use a work” lent out through licence agreements. For consumer goods like medical devices, these products no longer become the personal property of the consumer. Consumers are merely granted a licence to use these products and are incapable of making desired modifications.
Creators also have the benefit of laws prohibiting selling of devices (or services) for, and the circumvention of technological protection measures (TPMs). In Canada, a higher level of protection of TPMs similar to the one in the US was implemented in 2012 through the Copyright Modernization Act.Towards the end of the panel, the speakers briefly discussed the effectiveness of TPMs. Professor Perzanowski noted that the reason for introducing laws against the circumvention of TPMs was to serve as an incentive for copyright holders to distribute their works, and yet TPMs are largely non-existent in some markets such as the music industry. Instead platform developers, like Apple, have benefitted “by tying content purchases to their devices.” Professor Perzanowski recommends scrapping TPMs as they should probably not have been enacted in the first place. For her part Professor Chapdelaine noted that as TPMs increasingly make their way in the world of physical objects (the “Internet of things”) the dysfunction of their encroachment on the personal property of consumers is magnified. This might be the silver lining that will bring legislative change (and the list of exceptions adopted in the US to their TPM regime is one indicator that we may be headed toward legislative reform).
The committee designated to review the Copyright Act in Canada had their first meeting on Tuesday, April 17 2018. As regulators continue this spring to reflect on the use of TPMs and review copyright legislation it is important that the issues of consumer protection discussed by Professor Chapdelaine and Professor Perzanowski stay top of mind.
As a student of copyright law and a frequent user of technology, it was interesting to pause and consider how device manufacturers and content creators may be “using” me. Consumers are often ignorant of the ways in which technology companies are able to manipulate and exploit consumer tastes and confine consumer attraction and activity to their products. The panel discussion shone a light on the power imbalance between consumer and corporate creators. You can find more information on Professor Chapdelaine’s book here:http://www.oxfordscholarship.com/view/10.1093/oso/9780198754794.001.0001/oso-9780198754794 and to Professor Perzanowski’s and Jason Schultz’ book here http://www.theendofownership.com/.
. S.C. 2012, c. 20