Every now and then, a law review article on copyright comes along that is so good that I feel I have to recommend it. I am well aware that most of my readers are neither lawyers nor legal scholars, and the length and stilted format of law review articles can be off-putting. But Professor Jessica Litman is more of a “known quantity” then many other copyright scholars, thanks to her wonderful 2001 book “Digital Copyright.” It is her new article “Real Copyright Reform” that I now want to recommend for anyone interested in that broad topic.
There are lots of meaty and persuasive discussions of how to right the copyright ship in the US in this article, and it is hard to summarize all of Litman’s insights. I really do hope that the whole article will be widely read, but I want to emphasize two broad points Litman makes for the purpose of this post.
First, Litman suggests that we abandon the division of copyright into seven distinct and separable rights. This division serves us very poorly in the digital age, when all kinds of private uses that were uncontroversial for many years are suddenly contested online. Often the lines between performance, display, reproduction and distribution are simply impossible to maintain in the online environment that makes a new copy for nearly every use. Instead of this increasingly dysfunctional division, Litman proposes a radically simple distinction between commercial exploitation and non-commercial enjoyment.
Besides the obvious simplification that such a new approach to copyright would accomplish, Litman points out another advantage to her proposal – it accords better with the general public’s intuitive understanding of what copyright is for and how it is supposed to work. She correctly notes that a copyright law that is regarding as illegitimate and unenforceable by a majority of the public is of very little use. This proposal for a simplified approach to protection and infringement, based on protecting only commercial exploitation and allowing non-commercial enjoyment, would serve the cause of copyright legitimacy.
The second broad proposal that I want to highlight is Litman’s suggestions for “reuniting creators with their copyrights.” Copyright is frequently defended as an author’s right, but it seldom functions that way. Nevertheless, both logical and economic reasoning suggest that greater efficiency could be had if copyright, or some copyright privileges, remained in authors’ hands. To accomplish this goal, Litman suggests two significant reforms that would give creators more control over the exploitation of their works. First, she suggests that we transform our largely illusory termination right (the right to terminate a transfer of copyright and reclaim the rights after 35 years if a complex procedure is followed) into a simpler process that would be available after only 15 years. Second, she proposes that creators retain the right (“residual authority”) to license uses of their works even after a copyright transfer has been executed, “subject to a duty to account to her assignee(s).” Such a move would simplify the licensing process, give some certainty to those who seek licensed uses, and put the residual licensing authority in the hands of the one most likely to permit and encourage creative reuse.
I have to finish this post with both a plug for my own forthcoming work and an expression of regret. My own article on copyright reform, which is directed to a librarian audience, will be published in January 2010 in portal: Libraries and the Academy. My article will be featured in the issue that marks the tenth anniversary of the journal, and I am very honored to be given that position. But I also wish I had had the advantage of reading Litman’s article as I wrote my own. Several of my suggestions for how to “renew” copyright focus on returning control to creators, and Litman has done a superb job of both defending the rationality of such reforms and thinking through some creative ways to get there. I have no choice but to resort to that old complaint, “I wish I had said that.”
By the way, I will make a copy of my article available on this site as soon as it is published, in keeping with my contractual rights and obligations.