There has been lots of talk about copyright reform in Washington over the past few months, as evidenced by the announcement from the Chair of the House Judiciary Committee that that panel would undertake a comprehensive review of the copyright law. The first hearing for that review was held back in May. As Mike Masnick from TechDirt noted, the Registrar of Copyrights is supportive of the effort but “still focused on bad ideas.” More recently, the Department of Commerce Task Force on Internet policy issued a “Green Paper” last month that helps us see what is right and what is wrong with the current attention in D.C. on copyright reform.
The Task Force recommended three broad categories of reform: updating the balance of rights and exceptions, better enforcement of rights on the Internet, and improving the Internet as a marketplace for IP through licensing. These last two are straight out of the legacy entertainment industries’ wish list, of course, and they would do nothing at all to better realize the fundamental purpose of copyright to promote creativity and innovation. As for the first, it all depends, of course, on where one thinks the balance has gone wrong. The Task Force includes as a priority the reform of the library exception in section 108, which is a favorite goal of the Copyright Office right now, but it is not at all likely that anything the Office cooks up would be better than leaving the current 108 alone. The Green Paper also seeks “input” about digital first sale and remixes; note that input is a much weaker commitment than the task Force is willing to make to such things as online enforcement, reform of 108, or — another industry favorite — the extension of the public performance right for sound recordings.
Most of this is just patching the current law around the edges, and addressing only those problems that the industry lobbyists would like to see fixed. But it provides a context for asking a much more searching question about the utility of copyright in a digital age. Does copyright actually serve its purpose, or any socially desirable purpose, in the current economic and technological environment? What would it look like if we reformed the law in a way that paid close attention to that environment, rather than just listening to lobbyists for industries that are failing to adapt and want the law to protect them?
Let’s start with this report from The Atlantic about research into the effect of copyright protection on the availability of books. This should be the “sweet spot” for copyright; if it does anything right, it should encourage the creation and distribution of books. But the research reported in the article suggests just the opposite, that copyright protection, especially protection that lasts as long as it now does, actually depresses availability, so that more books are available from the decades just outside of copyright than from the most recent years. Here is the conclusion of the researcher, a professor at the University of Illinois:
Copyright correlates significantly with the disappearance of works rather than with their availability. Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.
This is not really that surprising if we think about what happens in modern book publishing. A title is published and sold for 3-5 years, at most. Then other titles come along and push the “older” ones “off the shelf.” The initial publisher no longer is interested in marketing the vast majority of these books that are 10 or 20 years old, and, because of copyright, no one else can do so. So a vast black hole swallows up most of the works of our culture that are less than 95 years old. Only as they reach the century mark do these works begin to reappear as reprints, because other publishers, and even members of the general public, can now reproduce and distribute them.
By the way, one of the ironies of this article, which helps to define and quantify what is widely known as the “orphan works problem,” is that many of the books that are unavailable actually may be in the public domain. Because for much of the 20th century copyright had to be renewed after 28 years and most rights were not renewed (due to the same lack of interest by their publishers that sent them to the remainder table) many of these books could be reprinted, but the Byzantine tangle of rules and Copyright Office record makes it too risky for anyone to undertake the task.
As I say, this situation is not a surprise. Back in 1970, then Harvard Law professor and now Associate Justice of the Supreme Court Stephen Breyer wrote about “The Uneasy Case for Copyright” (the link is to the article in JSTOR) in which he argued that copyright was not fulfilling its purpose very well and probably should not be dramatically expanded in the then-nearly-completed copyright revision process. Unfortunately Breyer’s article had little impact on that process, which resulted in the 1976 Copyright Act, but the past forty years have proven that he was largely correct and the Atlantic article discussed above is just one of many pieces of evidence. But “the real force of Breyer’s article is in arguing that copyright must be justified in a particular economic context and that technological changes may modify economic conditions.”
This quote about Breyer’s “Uneasy Case” comes from a 2011 article by another law professor, Niva Elkin-Koren of the University of Haifa, called “The Changing Nature of Books and the Uneasy Case for Copyright.” In her article, Professor Elkin-Koren carefully examines the technological changes and lays out the subsequent economic analysis, just as Breyer did back in 1970, for the eBook age. If in Breyer’s day the case for copyright was “uneasy,” then in the digital age it is downright painful. Were I to summarize Elkin-Koren’s conclusions in a single sentence, it would be this — what we need most in the digital environment is competition, and copyright in its current form suppresses competition. The digital environment is fundamentally different than print, largely due to the lower barriers to entry into the publication market. In this context, competition can be vital and beneficial, but the copyright monopoly threatens to help established players gain an even tighter stranglehold on the marketplace than was possible in the print era (and that grip was already too tight, as we have seen). Placing Elkin-Koren’s work next to Breyer’s, it is plain to see that the harmful economic and cultural effects of our current copyright regime are more visible and more harmful than ever.
If copyright reform were undertaken in the context of this awareness, what would it look like? Suppose we were willing to do more than simply rearrange the deck chairs, where might we end up? Elkin-Koren suggests a possibility:
[A] legal right to control copies may no longer be useful in a digital environment. One reason for the weakening strength of copyright is that the legal right against unauthorized copying is no longer effective in digital markets… In order to secure the rights of authors to a share in the commercial revenues extracted from their books it may suffice to simply define a legal right to receive compensation: a fixed share from any commercial use.
It is breathtaking to consider the consequences of this kind of lightweight approach to copyright, as opposed to the steady process of adding more and more restrictions and penalties that has characterized nearly all previous copyright legislation. Harkening back to the first U.S. copyright law, perhaps a “right to vend” is all that we really need in the Internet era. Certainly this would bring competition into the digital marketplace for copyrighted goods, which would scare the entertainment industry to death! It is a fantasy, I know, but I would love to see copyright reform discussions in Washington start from that simple baseline, and then have an open discussion (one not dominated by those lobbyists best known to legislators and bureaucrats) about the consequences, problems and additions, if any, that would be needed to make that simple proposal work.