Copyright reform — what would “green” copyright look like?

My wife frequently accuses me of finding copyright and other intellectual property issues everywhere, often where no “normal” person would perceive such a question. So I was both surprised and vindicated to see discussions of “green” copyright in a couple of places recently; surprised because even with all my obsessing about copyright, I had never considered how one might make a more eco-friendly copyright law.

The most comprehensive discussion I have read so far about green issues for copyright reform comes from Michael Giest, the Canadian copyright scholar who is leading a powerful grass-roots opposition to the new proposed copyright law in Canada — Bill C-61, introduced in Parliament several months ago. In a column for the Toronto Star, and again on his fascinating blog site, Geist lists several problems with the proposed law that could hamper efforts to improve the environment (or at least slow the harm we are doing to it). Since a major complaint about the Canadian proposal is that it looks too much like US copyright law, it is fair to assume that these “Canadian” issues are US issues as well:

  1. Copyright law can impact our ability to recycle computers and other electronic devices in order to reduce the amount of “techno-waste” that is generated each year. Protections for software in general and especially prohibitions that prevent circumvention of digital protection measures can prevent new users from gaining access to recycled devices. It is no secret that Apple want to sell each of us a new iPhone every year or so, but there is potential environmental impact to legal enforcement of that business policy. Giest refers to a US case where the potential for this kind of ecological harm was very real — Lexmark v. Static Control Components, in which Lexmark tried to use the DMCA anti-circumvention rules to prevent a competitor from making chips that would allow the re-filling of laser printer ink cartridges. The courts found that such an application of US copyright law would be anti-competitive, but it is worth noting that a contrary decision might also have been anti-environmental.
  2. Protections that restrict copying of software and storage of copyrighted materials on shared networks can inhibit the efficiencies gained through “cloud computing.” If memory-intensive research — crunching huge data sets for example — can be done by a network of computers rather than at a single site, unused capacity can be exploited to reduce the need for multiple institutions to obtain massive computing capacity that may be used infrequently. Copyright law can have a lot to say about whether such shared projects will be feasible.
  3. A similar issue is raised regarding the possibility of consumer storage of memory-intensive materials in networked systems. In the US there already exist network-based video recording services that decrease the proliferation of digital devices that increase energy usage and eventually end up in landfills. US courts have not been consistent in their approach to these services, in part because our copyright law does not directly address the status of copies made solely for personal use. The new Canadian proposal would take up that issue and would authorize only a single copy of consumer-purchased songs or videos. With such a law, not only would consumer choices be severely restricted, the need for many individually owned storage devices would burgeon — good for the consumer electronics industry but bad for the environment.

In addition to these copyright issues that could have significant ecological impact, there are also “green” patent concerns. A recent study has shown the tremendous growth in patents issued for inventions, software and business methods that are aimed at environmental processes and problems. Because there is already so much controversy (and litigation) around software and business patents in general, it is a legitimate worry that the growing number of ecological patents could actually impede the progress of innovation in environmental sciences rather than promote that progress. Patent law, like copyright, is intended to promote innovation through a careful control grant of monopoly, but recent research has shown the significant danger that patents, and the cost of prosecuting and defending them, may be becoming an obstacle to innovation rather than an incentive; a nice, but dated explanation of the potential problems can be found here; this book review of 2008’s “Patent Failure” gives a more up-to-date review of the economic evidence that innovation is being stifled. Research into how to resolve our environmental dilemmas is too important to allow it to be slowed by the inefficiencies of our patent system, and adds another argument for the need for comprehensive reform of US intellectual property laws.