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Michigan State University College of Law

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IP for Creative Upstarts

November 9-10, 2012

Roundtable Panels

Session One
Navigating the Copyright System at the Point of Entry

This opening will consider issues that creative upstarts initially encounter in navigating the intellectual property system as they create and prepare to commercialize new works.  Creative upstarts often face special challenges because of their limited resources and an IP system that may not always contemplate their needs.  At the same time, changes in creative industries and underlying technologies have opened new opportunities for creative upstarts.  At such times, it is often the upstarts, rather than the incumbents, that find the way forward and prosper.  The discussion will consider how well the law serves creative upstarts today and how it might do so better in the future.  Topics will likely include: documenting creativity; registration of rights (public and private); clarifying authorship/ ownership (works for hire; collective creativity); rights clearance challenges; minimizing third party enforcement of rights; encouraging best practices for use of fair use and fair dealing; exploring extra-legal solutions to build message support; and creating alliances to overcome barriers to creation and distribution of content.  What are the snags and pitfalls that creative upstarts encounter?  Could “best practices,” legal reforms, or capacity building help? 

Session Two
Enforcing Rights

This roundtable will consider how well copyright law and legal systems generally serve creative upstarts that are attempting to enforce their rights.  The discussion will consider both commercial piracy and the problem of widespread consumer copying, in both developed and emerging markets.  The goal of the discussion is to identify less well-known problems and to propose innovative solutions.  The discussion likely will include consideration of the following issues:  Are creative upstarts able to use “notice and takedown” laws effectively?  Should there be more effective ways to address “small claims” of infringement?  Do private ordering solutions such as Google’s ContentID effectively serve the needs of creative upstarts?  Could automated enforcement strategies offer a viable solution?  Is graduated response the answer?  Are “copyright trolls” helpful or harmful?  Can pirates be coopted?  How can transnational obstacles be overcome?

Session Three
Intermediaries: Traditional and New

This roundtable will consider how well intermediaries, traditional and new, serve creative upstarts.  Traditional intermediaries include publishers and collective rights organizations, while new intermediaries include agents, aggregators and online services such as Tunecore, YouTube, Spotify, and Netflix.  This discussion will consider intermediaries in both developed and emerging markets.  The goal of the discussion is to identify both challenges and benefits of working with intermediaries, as well as possible new models.  The discussion likely will include consideration of the following issues:  Are creative upstarts being well served by existing collective rights management systems?  How should existing licensing structures be adapted to a globalized, digitalized world?  What are the best models for intermediaries—public vs. private; diverse competitors vs. single CRO? What private mechanisms might be effective?  What is the role of the state in regulating this space?  What policy levers might prove most effective?

Session Four
Commercialization for Creative Upstarts

This roundtable will consider how the legal system and new business models might evolve and adapt to one another to help creative upstarts find new opportunities. The discussion will consider the challenges and opportunities for commercializing creativity, given evolving technology and current law.  It will include consideration of both developed and emerging markets.  What can upstarts in developed countries learn from the upstarts in emerging economies, and vice versa?  How effective might alternative revenue sources (advertising; live performance; crowdsourcing) and open licensing be in replacing traditional revenue sources? How can the legal system adapt to accommodate new business models and/or e-commerce platforms?  How can the legal system and institutions strengthen the capacity of creative upstarts to commercialize their works through both existing and emerging avenues?

Session Five

This roundtable will consider the normative merits of imposing safeguards to restrain or otherwise mitigate potentially unfair licensing practices by which publishers/studios/labels etc. exploit asymmetric bargaining power to the detriment of creative upstart artists and producers. Different countries impose restraints along these lines to different extents.  The US has (some) work-for-hire limits plus termination of transfer provisions that allow for copyright reversion decades later.  Europeans countries often do more under the rubric of moral rights or otherwise. India has just passed a very broad limit on alienation of beneficial interests, reserving at least 50% of royalties to artists.  Would more aggressive regulation in this domain benefit creative upstarts and society at large? What kinds of measures offer the best bang for buck? What countervailing concerns argue for restraints?  We hope to open up a broad discussion about the policy arguments for and against imposing such restraints and distinguish between categories or cases where the balance tips in favor or against.

Session Six
Transnational Issues, Policy-Development & Capacity-Building

While some fear that globalization will impoverish cultural diversity, there are also grounds for optimism in so far as diverse cultural products can reach wider audiences, develop new markets, and capitalize on a globally dispersed fan base.  Yet, accessing global markets can be particularly challenging for creative upstarts.  This panel will consider how creative upstarts might embrace the opportunities of globalization, while overcoming challenges.  There is also potential to tap into global policy initiatives beyond the IP context.  The development of diverse creative industries has been a focus of sustained global effort across a wide array of cultural/economic development initiatives.  However, the intellectual property ramifications have sometimes been neglected.  This panel will reflect on how the insights from this conference could be incorporated within such initiatives.  It will also consider the practical implications of a creative upstart focus for the ongoing implementation of the WIPO Development Agenda and for international technical assistance programs to foster IP capacity-building.

Final Session
Making the System Work for Creative Upstarts

This session will invite moderators from the previous roundtable panels to reflect and elaborate on the issues discussed by their panels as well as points of connection with other panels.  The goal is to initiate further discussion with a view to synthesizing some concrete take-away lessons from the conference.  In particular, we hope to identify potential legal/policy reforms or capacity building solutions for further study and consideration, which the creative upstarts research network could develop in collaboration with policy-makers and creative industry professionals.

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