Copyright Needs Fixing

A review of William Patry, How to Fix Copyright, Oxford University Press, 2011.

There are some issues like climate change, civil rights, or the way the economy works that any informed citizen needs to know a little about. People usually have opinions on these issues: they are the stuff of democratic debates, and although people often disagree on substance they agree that these issues matter and should be openly debated. There are other issues that are deemed too technical or specialized to be worthy of public debates: what standards to adopt for electric cars, how the Internet should or shouldn’t be regulated, or whether the United States should scrap its arms reduction treaties with Russia. It’s OK not to have opinions or knowledge on these matters: they are black box topics that can be dealt with by experts or people who have an interest in these issues. Is copyright a type-1 or a type-2 issue? Does it belong to the category of topics worthy of public debates and conflicting opinions, or can it be treated as a black box and be left to experts to discuss? William Patry’s strong opinion is that copyright matters, that every informed citizen should know at least some basic principles about intellectual property, and that legal evolutions such as longer copyright duration or stronger IP protection should be publicly debated. 

Monopoly rights

There is, of course, a long tradition of debating intellectual property rights in an open, democratic setting. American Founding Fathers and French philosophes found the issue worthy of their interest, and IP protection even made its way into the United States constitution ([The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”). Thomas Jefferson wrote a famous letter to Isaac McPherson in which he framed the issue more eloquently than anyone has done since: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” In Great Britain, Thomas Macauley made a landmark speech at the House of Commons in 1841 in which he expressed the belief that intellectual property rights are necessary evils which must be carefully circumscribed by law: “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” And in France the young Denis Diderot made the case that authors’ rights or droits d’auteur should be protected as strongly as any other form of property (“What form of wealth could belong to a man, if not a work of the mind,… if not his own thoughts,…the most precious part of himself, that will never perish, that will immortalize him?”), while Condorcet took a more balanced approach (“Does a man have the right to forbid another man to write the same words that he himself wrote first?”).

Modern experts do not have the literary talent of these illustrious predecessors; nor do they approach the matter in the disinterested manner that framed the debates in the eighteenth and nineteenth century. William Patry doesn’t hide from which position he addresses the issue: he is the Senior Copyright Counsel of Google, Inc, although he makes it clear that his views are solely his own and not the ones of his employer. More to the point, he is the author of an eight-volume treatise on US copyright law and a towering figure in the legal academic field. As far as expertise goes, he is the experts’ expert, and speaks from a position of prominent authority. And yet he writes in a refreshing and engaging style, and forcefully makes the case that we should all be concerned about the state of copyright law. Copyright needs fixing: there is ample reason for alarm in assessing the situation we are facing or in considering the direction we are taking. Each day seems to bring some new Internet horror story about the excesses of intellectual property. Margaret Mitchell’s estate infamously tried to use copyright to prevent Gone With the Wind from being retold from a slave’s point of view. Including tiny samples of past musical performances in rap songs or electro music is considered an infringement of copyright law. Copyright now lasts for 70 years after the death of the author, long enough to lock up almost all of twentieth-century culture. The Digital Millennial Copyright Act gives content providers a whole array of legally protected digital fences and locks to enclose their work. The European Database Protection Directive creates proprietary rights over compilations of descriptive data, allowing in essence the ownership of facts. According to some critics, we are witnessing the second great enclosure movement, the enclosure of the intangible commons of the mind that the Internet has the potential to make accessible to all. 

Copy me if you can

A quote from the book illustrates most eloquently the impact of copyright law on creativity and artistic expression. Commenting the impact of judiciary decisions on music sampling at the turn of the 1990s, rap artist Chuck D from Public Enemy declares: “Public Enemy’s music was affected more than anybody’s because we were taking thousands of sounds… The sounds were all collaged together to make a sonic wall… So we had to change our whole style, the style of ‘It Takes a Nation’ and ‘Fear of a Black Planet’”. Readers who came of age in the 1980s might remember the music of Public Enemy and NWA: a dense wall of sound on which rap lyrics were overlaid. By comparison, the simplistic thumping beat and unimaginative synthesizer lines that accompany most modern rap can only sound like a regression. This is because now every sample, no matter how tiny, has to be “cleared”—licensed from the owners of the original recording. This legal change caused an aesthetic change. Rap music is not the only musical genre to be affected by changes in copyright law. Music is hard for copyright law to handle. Creativity is more collective and additive than in literature, and much of the raw material used by subsequent creators is potentially covered by copyright. Far from building everything anew, musicians seem quite deliberately to base their work on fragments taken from others. Musicians take chunks of existing work that were proven to work well and set them in a new context or frame. Musical genres develop out of other genres, to the extent that every musical innovator is a crossover artist. How would the great musical traditions of the twentieth century—jazz, soul, blues, rock—have developed under today’s copyright regime? Would they have developed at all? 

Music is not the only art in which copying is widespread. Writers practice the genre of the pastiche, the parody, the homage, the paraphrase, the restatement, or the indirect quotation. Painters learn their trade by copying masterworks in museums. “Fake it till you make it,” seems to be the instruction given to any young student going through artistic apprenticeship. It is only by imitating past masters and following the instructions of talented teachers that one can develop one’s own style or find one’s true originality. The idea that copying equals a lack of creativity is a distortion of reality. On the contrary, imitating existing works can promote cultural creativity and diversity; and restricting the range of works that can be copied or sampled—as copyright law does—reduces artistic innovation. To deny people the right to copy from others is to deny the essence of what it is to be a creative person. Laws that limit the right to copy and reuse cultural material are inhibiting rather than encouraging creativity. But it is a mistake to believe that copyright exists to encourage creativity and innovation. Historically, they were established to protect the rights of printers and publishers in their fight against booksellers—the right of authors came almost as an afterthought. Today, the general belief is still that copyright law places the author at the epicenter of the value chain which then goes down to the publisher, the wholesale retailer, the distributor, and the consumer. However, in reality, once the private contract has been signed, the author relinquishes all his rights to the publisher in exchange of a limited stream of revenues. Authors are the weakest actors in the industrial chain, with only a few exceptions in regard to superstar authors. 

Shorten copyright duration

What would a copyright regime designed to serve the interest of creators look like? It would go against all the recent trends that have been incorporated into corporate law. As William Patry describes it, copyright terms are now longer, copyright protection itself is automatic, and copyright policing is much more aggressive than it used to be. Lawmakers have lengthened the copyright term without any credible evidence that it was necessary to encourage innovation. We have made these choices just when the Internet makes their costs particularly tragic. A key recommendation would therefore consist in shortening the copyright duration with the aim of maximizing the earnings of authors from their works. Unlike what authors and publishers would like, the actual commercial life of a work is short. For most works, the owners expect to make all the money they are doing to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a-million perennial favorite. During this period of hibernation, the cultural potential of most works cannot be fully enjoyed by society, which impacts significantly on cultural diversity. Authors and society would be better off if a shortened copyright duration would encourage publishers to develop more effective strategies in order to maximize the utilization of contracted works. Furthermore, authors could benefit from the reputational earnings of their works that enter the public domain earlier than under the current system. Another benefit is that due to the earlier public domain period, many works that are not too outdated would become more readily available, inspiring authors to produce more and better works. 

But perhaps the main recommendation of William Party, beyond fixing copyright, is to fix the lawmaking process. Copyright laws arose out of eighteenth-century markets and technologies; they are completely out of sync in an age of Internet diffusion and digitization. The failure of policymakers to make new laws consistent with the technologies and markets of the new world of digital abundance is a reflection of false premises, bad analysis, lack of empirical work, and capture by powerful vested interests. For the author, legislators approach the topic with a faith-based approach based on syllogisms and tautologies. He debunks many of these myths created by interested parties to justify legislative inflation and increased protection. No, copyright law is not the basis for creativity, as legal provisions rarely cause people to create when they otherwise wouldn’t. No, publishers and record companies as well as movie studios do not nurture creativity and diversity: their role is to look at what’s selling and then selling more of it. No, copyrights do not maximize authors’ revenues: even for successful works, the benefits from ownership of copyrights have always flowed disproportionately to gatekeepers who are interested in artificial scarcity and monopoly profits rather than abundance and diversity. No, copyright law is not the basis for competitiveness in the knowledge-based economy: countries that are forced to accept stronger legal protection of intellectual property in trade deals lose some of their competitive edge. No, more laws cannot be the solution to business problems, as copyright laws cannot force consumers to buy what they don’t want to buy. For the author, the plight of the music industry or the decline of newspapers whose revenues have been eroded by piracy and the Internet is, first and foremost, the result of a failure to adapt to changing markets and technologies. 

The European exception

William Patry is a specialist of the American legal system and he has first-hand experience of lawmaking in the United States. And yet he reserves his harshest criticisms to European lawmakers. The European Union’s 1996 Database Directive is presented as a case study of what not to do, and the 2011 White Book titled “A Single Market for Intellectual Property Rights” is disparaged as an assemblage of vague statements and empty promises. In these texts, extravagant claims are being made about the relationship between copyright and the so-called knowledge-based economy or about the economic importance of the cultural and creative industries, defined in tautological terms as the industries that benefit from copyright protection. The stamp of famous consultancies such as Ernst & Young or PricewaterhouseCoopers on impact assessments of feasibility studies should not fool us: these reports, and the policy reforms they advocate, are utterly lacking in empirical evidence and sound analysis. As the author wryly notes, “What we have now is policy motivated evidence-making, not evidence-based policymaking.” And yet the European situation should not be assessed so harshly. European Union procedures, with their open consultations and background study requirements, are an improvement against national processes. The risk of industry capture is no less acute when influence is exerted by famous artists and corporate tycoons close to the centers of power as opposed to lobbying firms and armies of anonymous legal experts. And William Patry, himself an amateur bassoon player, has only good words for European funding of artistic activities such as direct grants and subsidies for cultural organizations and artists: “Germany has approximately twenty-five times the number of full-time symphony orchestras than the United States… Most of these orchestras are supported by local of municipal German governments.” If there is a cultural exception in Europe, it is to be found in this strong public support for culture, not in dubious lawmaking processes and calls for industry protection.