Featured Fellow: Urs Gasser

This is one of a series of posts on Berkman's fellows. The Berkman Center is home to approximately thirty fellows, all of whom focus their time and energy on issues concerning the Internet, including Internet governance, privacy concerns, intellectual property rights, competition policy and antitrust issues, electronic commerce, the role of new media and journalism proper, and digital media, among many others.

A Berkman faculty fellow and associate professor at the University of St. Gallen,where he serves as director of the Research Center for Information Law, Dr. Urs Gasser has been involved with the Berkman Center since his days as an LL.M. at Harvard. His research into copyright law and digital media has led him from acting as lead fellow on the Digital Media Project to launching a recent initiative exploring the relationship between interoperability and innovation in information and communication technologies. Along with co-authoring the 2004 iTunes case study and submitting an international supplement to the Berkman whitepaper “Digital Media in a Post-Napster World,” Urs has published several books and more than 60 articles. His work continues to take him in new directions, both substantively – his research agenda includes topics as diverse as corporate ethics and e-anonymity – and geographically, as he frequently appears at conferences on both sides of the Atlantic.

You can check out Urs' full bio here.  Below is a Q&A with Urs about his work conducted by Berkman intern Meg Moore.

Question: Could you describe how you became involved with the Berkman Center and the relationship between the Center and St. Gallen?
Urs: I became involved with the Berkman Center when I did my LL.M. at Harvard Law School in 2002. Back then, the Center's faculty was teaching a wonderfully intense and - in the eyes of a continental European newcomer to the U.S. debate - in many senses challenging seminar on internet law and policy. I then had the great fortune to meet John Palfrey and work as his teaching assistant on an online teaching module on digital entrepreneurship (the BOLD series). This encounter really changed my professional and personal life. Instead of heading back to Switzerland after graduation, I got invited to spend a year as a resident fellow at the Center, working on the Digital Media Project under the auspices of Terry Fisher and John Palfrey and in close collaboration with members of the Berkman all-star team. Since then, the collaboration has both continued and deepened in many regards, even after my return to Switzerland in 2005. Today, the research team here at the Research Center for Information Law at the University of St. Gallen is working closely on various topics - ranging from interoperability and e-innovation to issues such as "law and emotion" - with our friends and colleagues at the Berkman Center. This summer, for example, one of our researchers - Daniel Häusermann - spent the summer at the Berkman Center, while Berkman-affiliate Nicholas Bramble visited St. Gallen as a summer intern. John Palfey visited us earlier this year to co-teach a seminar on the law and economics of cyberspace, while Charlie and Fern Nesson made a first visit in 2005.

Q: You have written about digital media “post-Napster” and, specifically, iTunes. Do you feel current digital music services strike the desired balance between the music industry and consumers, or should the industry be aiming for something more?
Urs: The short answer is no - I don't think that the new services get the balance right. As we have argued in our iTunes case study as well as in several other reports of the digital media project, the traditional - and carefully struck - balance between users' (and the public's) interest on the one hand and copyright holders' interest on the other hand has significantly shifted in favor of copyright holders over the past years as scholars like Lawrence Lessig and Terry Fisher, among others, have discussed in great detail. The online music services with their DRM systems - backed-up by anti-circumvention laws such as the DMCA and the EUCD - and restrictive Terms of Services are both illustrations and drivers of this shift. Many of these services, for example, effectively reduce or even eliminate important users' rights, including the "right" to make a copy for private purposes, as granted by many copyright acts around the world.

Should the industry be aiming for something more? Yes, indeed. I don't think that the industry has yet embraced the new logic of the digitally networked environment - neither with regard to online distribution, as Terry Fisher's terrific book "Promises to Keep" demonstrates, nor with respect to the new modes of production of music and entertainment as most prominently described by Yochai Benkler. Most of the current business models that underlie online music services, in my view, are by and large based on an outdated, pre-Web 2.0 paradigm of "selling" individual copies.

Q: Do you feel that copyright law will always be struggling to keep up with innovation or could a shift, either in focus or approach, help mitigate the legal tension that always seems to accompany new technology?
Urs: Law in general and copyright law in particular will always struggle vis-à-vis new technological or social phenomena, because stakeholders that feel threatened by disruptive technologies will ultimately carry their conflicts into the legal arena and challenge the creators and marketers of these technologies. This dynamic is nicely discussed as a pattern that associates technological innovation by Deborah Spar in her fascinating book "Ruling the Waves." The legal system has then to decide whether a particular phenomenon (say, e.g., peer-to-peer file-sharing technology) can be dealt with based on existing norms, or whether the legal system in response has itself to innovate - e.g. by way of introducing new doctrines or by creating new statutes. Although we have seen in the past few years several responses by the legal system, particularly the copyright system, that many of us (including me) might dislike -- I mentioned anti-circumvention laws a la DMCA a minute ago, it is important to understand that the interaction - or "struggle", as you termed it - between the legal system and other social subsystems as such is not necessarily a bad thing. In fact, the law's ongoing struggle with new phenomena, including technological innovation, is an in-built feature of the legal system itself that ensures its own evolution - and that gives us, as societies, the opportunity to re-negotiate in a well-structured way previously reached social agreements and value judgments. Thus, the challenge is not to “avoid” these struggles, but to ensure that all relevant stakeholders - including, for instance, consumers - have equal "bargaining power", so to speak, in such controversies.

Q: Have European markets taken a different approach than the U.S. towards regulating digital copyright? Is there an attempt being made to approach digital rights issues from a global perspective as opposed to a nation/market-specific point of view?
Urs: Painted in broad brushes, it is fair to say that the U.S. and European copyright frameworks follow similar approaches as far as digital rights issues are concerned. This doesn't come as a big surprise, since important areas such as, for instance, the legal protection of technological protection measures have been addressed at the level of international law - e.g. in the context of the WIPO Internet Treaties. However, the closer you look, the more differences among the legal systems you will find, even within Europe, where copyright laws and consumer protection laws, to name just two important areas, vary significantly if you move from - say - Germany to the U.K. as our Berkman/St. Gallen studies have demonstrated.  But from the "big picture perspective" you are certainly right, there is a global trend towards convergence of digital copyright law, driven especially by TRIPS and the WIPO treaties, but also (and equally important) by bilateral free trade agreements.

Q: You recently chaired a panel on the EU Copyright Directive.  Skepticism was expressed concerning the benefits of copyright harmonization.  Could you explain a little more about this approach to reforming copyright law? What would be the alternative to streamlining applicable laws through harmonization?
Urs: Let me first point out that directives are not aimed at making laws across EU states identical; rather, they are designed to harmonize them to create a level playing field. Second, it is important to note that the EUCD is arguably the most important, but not the only directive on copyright law in the EU. In fact, EU lawmakers have enacted several EU Directives aimed at vertical standardization, including for instance the Software Directive and controversial Database Directive. Here, a first problem arises: Since directives only set the stage and formulate a framework, they have to be transposed by each EU member state into their national laws - and "filled in" with details, so to speak. Now, we all know that law-making is a hugely costly process. Consider now that national law-makers across Europe, based on the approach of a step-by-step harmonization of the EU copyright framework - have had continuously to transpose EU copyright-relevant directives over the past 15 years or so - and no end in sight. This creates an enormous burden on the member states.

The strongest argument against harmonization in the area of copyright law, though, is the fact that it has created significant asymmetries and imbalances. Most importantly, it significantly distorted - following the larger trend mentioned above - the traditional balance between the interests of copyright holders and users in favor of copyright holders. In addition, observers argue that harmonization (vis-à-vis the principle of territoriality of copyright law) has ironically produced negative effects on the internal market - a market it sought to strengthen.

I don't think harmonization is per se a bad tool - but it all depends on the scope of harmonization (do we only care about the harmonization of copyright holders interest, or are we also setting the standard for user rights, for instance), how harmonization (as a relatively slow process) can be synchronized with fast-paced technological development, and how many harmonization projects we launch. A real alternative would be competition among jurisdictions, i.e. a situation where the EU member states would create alternative and competing copyright regimes and market dynamics would tell us what and where the best system is (analogous to the Delaware effect). However, given the existing EU treaties and international obligations this scenario is only a theoretical alternative.

Q: What aspect of your Berkman Center-related work do you find the most rewarding?
Urs: It's simply wonderful to work with world-class scholars, leading activists, highly motivated students … from various disciplines across the Atlantic on some of the most pressing issues up for discussion in today's information society , hereby shaping to one degree or another the agenda of national and international policy-makers and hopefully contributing to making this a better world.

Q: Is there a current or upcoming project that you are particularly excited about?
Urs: I'm fortunate to be involved in a series of very exciting projects. Together with the Berkman Center, we've just launched a research initiative that seeks to explore - based on case studies, including DRM and digital music - the relationship of innovation and interoperability in information and communication technologies. Another study explores the future of online search and the legal and regulatory implications of evolving search technologies and markets. And, we're working on a series of contributions to research topics such as governance of virtual worlds, corporate ethics, filtering regimes in Europe, online advertising, e-diversity, online anonymity, and online reputation systems, to name just a few issues on our diverse research agenda. Personally, I'm thrilled to work on such interesting issues together with wonderful people on both sides of the Atlantic. So, many thanks are due to the directors of the Berkman Center - Terry Fisher and John Palfrey in particular - and my other colleagues and friends in 02138, as well as to my excellent St. Gallen team for making all this possible.