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April 21, 2009 — Stuart S

The Balancing Act of Copyright Reform

A Balancing Act

We all interact with copyrighted works on a daily, almost constant, basis.  So when it comes time to update the copyright law governing the creation of, and our interactions with, these pervasive works, how do we choose to shape the law?

In the debate over how exactly to reform copyright, there seem to be two main factions.  Those who want to liberalize the current system and those who want to make it more stringent.  An emblematic movement for the first side mentioned is the free culture movement which advocates the benefits of legitimate fair use and remixing (among others) to  promote creativity.  In the other camp are copyright holders, typically corporate entities, who are working to safeguard the investments they have made in developing works they have copyrighted.  While this characterization of the debate is perhaps a bit simplistic, it hints at the underlying conflict related to copyright reform and the need for some sort of consensus to be drawn between these two opposing sides.

This challenge is the balancing act of copyright reform.  A balance must be struck  between securing freedom of expression and information (Stallman’s “free as in free speech”) while protecting the rights of copyright holders (avoiding having proprietary work taken for “free as in beer”).

Nevertheless, it is important to make sure that copyright law is not stifling innovation and limiting legitimate fair use in responding to copyright infringement.  There are clearly some  elements of the Copyright Act of 1976 that are dated, including the length of the copyright term and the failure to explore in depth new copyright issues related to rapidly changing technologies.  The 1998 Copyright Term Extension Act and the Digital Millennium Copyright Act only served to further lengthen the copyright term and introduce more strict controls over copyrighted works and their distribution.  In fact, under the current system a copyright term can last as long as 120 years!  While iconic works (such as Mickey Mouse) may have some commercial value that long after their initial creation, the vast majority of copyrighted works do not hold sustained economic value for that excessive length of time.  In fact, a Cambridge researcher found that the ideal length of copyright is just 14 years.  Taking this gross disparity into account (with the current term over 8.5 times longer than the ideal term) suggests a need to revisit and adjust the aging copyright system.

But at the same  time, there is a great deal of outright copyright infringement (estimated at $20 billion this year) which is severely impacting the business operations of major content producers (who are also copyright holders).  This infringement, especially in the current global recession, jeopardizes the future of the companies that entertain and employ individuals throughout our country and the world.  Going back to Stallman’s distinction, it is therefore important to critically examine current copyright law to allow expressions of freedom “as in free speech” while curbing abuses of “free as in beer.”

A concrete example of such a balance would be to reduce the length of copyright terms while streamlining and improving the mechanisms to curb copyright infringement.  The first provision would increase the number of works in the public domain, therefore putting these works at the disposal  of creative minds worldwide.  The latter provision need not astronomically increase fines or prison sentences for individual infringers but should determine a way to coordinate policy, law, and enforcement of these measures both domestically and internationally.  In so doing, the new system will preserve, as best as possible, the legitimate claim of copyright holders to their exclusive rights for the full amount of time allowed by the law.

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April 21, 2009 — Matt D

Two Thoughts on Copyright Reform

Lunch with the Yale Internet Society Project today provided the audience with mediocre chicken, excellent cookies, and some very interesting thoughts on copyright from William Patry, who is the current Senior Copyright Counsel for Google Inc. and has written more about copyright than I ever intend to read. His talk, “Copyright is a Government Program: Lessons from the Recession,” can conveniently be divided into two main lines of argument. The analytic thinking below is his; the mistakes are mine.

Copyright is a Government Program

Much like patents, when one thinks of copyrights they tend to think with a property-oriented mindset: authors have a degree of ownership of the particular arrangements of words and ideas they publish, photographers have the ability to control the use and distribution of their photographs, and so forth. This feeling is easily conflated with the common notion that copyrights are private property, which is basically held as an inherent good under U.S. law – property, and what one chooses to do with it, does not require explanation or justification, it simply is, and disrupting others’ property is generally illegal.

Patry, however, disputes the idea of copyright as a natural, common law, or private property right, pointing out that unlike most property rights copyright is purely a creation of the legislature (and was held as such in the first Supreme Court ruling on the subject). This positive right exists to advance the progress of science, and like any other government program should be both regulated so that it serves its purpose and also cut or reformed if it is failing. Unlike other programs, copyright isn’t given the burden of empirically proving its success or facing reform, and Patry feels that should change.

Lessons from the Recession

In the latter half of his talk, Patry drew a comparison between copyright and the current economic recession: in both situations, we have arrived in an undesirable position through an overreliance on economic freedom and a consequent lack of regulation – “free market fundamentalism,” in the pejorative words of Joseph Stiglitz. Patry advanced, though softened, the Keynesian argument that “It is not a correct deduction from the principles of economics that enlightened self-interest always operates in the public interest. Nor is it true that self-interest generally is enlightened; more often individuals acting separately to promote their own ends are too ignorant or too weak to attain even these.”

He concluded that companies often have a duty to act in the interest of shareholders instead of the public, copyright as currently iterated fails to serve the public. As it is a positive rather than common law right, copyright should be regulated more rigorously according to the public good.

Brief Reaction

As this post is growing beyond the point of quick readability, I won’t react in depth; feel free to talk to me in person or through comments to discuss in detail. Briefly, I thought the positive nature of copyright law was a useful and novel perspective to examine reform and shape its normative goals. I was not, however, as sold on his free market arguments; I would have liked to see at least a cursory look at the downsides of regulation. Finally, though the talk was very interesting, we need a means of reform, not further evidence that reform is necessary.

Also, a word of advice to future copyright scholars: get to talks early if you want chocolate chip cookies. They go fast.