Copyright Law: Fixer-Upper or Tear Down?

(Editor’s Note – I’ve removed the citations from this paper to suit the blog format.  If you’d like a copy with full citations please email me.)

The fast paced change of the digital age has created significant problems for copyright law. While modern technology makes creating, copying and consuming media easier then ever it also has also paved the way for anonymous high-volume copyright infringement, fear of collapse in the music and film industries, and a great deal of uncertainty in the law.

In this environment stakeholders, and that is almost everyone, struggle to understand how copyright law applies to new media creation and consumption. Large media companies, fearful of easy illegal copying, lobby congress for longer and stronger copyright protection, wage public relations campaigns against digital piracy, and make examples of large-scale infringers through expensive litigation. Content owners and digital technology companies attempt to develop innovative business models to capitalize on new markets created by technological advances. Artists try to navigate the hazy line between transformative fair use of copyrighted content and costly infringement. Judges and legal scholars attempt to apply copyright law, based on outdated mediums, to novel issues posed by this technological growth. The results have been mixed on all fronts.

The first United States Copyright Act was implemented in 1790 to regulate the map and book industries. It has been adapted several times since then to keep up with emerging markets and technologies in creative industry. The most recent addition, the Digital Millennium Copyright Act (DMCA), was passed in 1998 in response to the challenges posed to copyright law by the digital age. In the fourteen years since the DMCA was passed a second wave of digital innovation has swept the world. It is no surprise that in this context the law has struggled to find appropriate ways to keep pace with technology.

This paper will discuss two recent perspectives on whether our copyright law appropriately addresses current technological issues and how the law may be improved to better fit copyright’s constitutional mandate of promoting “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” in the modern age.
In How to Fix Copyright, William Patry advocates a start-from-scratch approach to copyright reform. Our current law, argues Patry, is grossly imbalanced towards protection of content owners and needs to be rebuilt to align with original intent of copyright policy; encouraging creativity and enriching the public. In Reclaiming Fair Use, Patricia Aufderheide and Peter Jaszi agree with Patry that copyright protection has become unbalanced, but argue that this balance can be shifted using tools already present in the Copyright Act. They maintain that fair use embodies the counterbalance to the modern trend towards overprotection for content owners that may serve to reassert the public interest in copyright law. What follows is a summary and analysis of these two divergent approaches to the same goal of a copyright regime that effectively serves both private and public interests.

How To Fix Copyright:

William Patry argues that copyright is broken because it has failed to fulfill its underlying policy goals as originally stated in the Constitution and repeatedly used as the foundation for increasing protection. “Our copyright laws are a hapless mixture of individual provisions, worked out as political compromises among powerful special interests, taking place over large periods of time, with no continuity among policymakers, and without any effort at determining whether the parts fit into a sensible whole.” His prescription for a failed system starts with unlearning what we think we know about copyright; namely that “copyright laws directly cause people to create works they wouldn’t otherwise create, directly put substantial money in the authors pockets; that culture depends on copyright; and, more recently, that copyright law is a key driver of competitiveness and of the knowledge economy.” Once we understand these things to be the false creations of corporate lobbyists we can rebuild a healthy copyright regime on evidence-based policy decisions.

The primary narrative used to justify ever-increasing protection of creative work through copyright is that it motivates artists to create new work. Patry argues, however, that copyright protection plays no role in the creation of artistic works. Rather, “the instinct to create arises out of our essence as human beings: we want to make things that are meaningful to ourselves and others.” In fact increasing copyright protection actually stifles creativity because creativity is based on copying and increased copyright protection preempts that copying. Throughout recorded history creativity has been based on imitation of past work and transformation of that work into new transcendent creative works. Our conception of creative work as property is based on the false notion that creativity originates entirely from the mind of a solitary creative genius. The codification of this false notion in our current copyright law stifles, rather than inspires, creativity.

Despite this chilling effect on creativity, Patry asserts that there are ways to motivate creativity within copyright law. “If policymakers truly want to increase creativity, then they must greatly liberalize the ability of one person to transformatively copy from another.” Since creativity is based on transformative copying, a strong fair use provision, which allows for broad transformative copying, is essential to a healthy copyright system. Robust fair use will provide the necessary counterbalance to exclusive rights in order to allow creativity to flourish through transformative copying.

Since success based on copyright protection also requires market demand and many forms of creativity (often the most creative art) has little to no market demand, Patry also makes some recommendations for encouraging creativity outside of copyright. If legislatures are truly concerned with creativity they should provide government subsidies and tax breaks for artists, and ensure online platforms exists where artists can post their work to earn money from advertising revenue and charge for streaming or downloading their work. This type of government assistance will bolster the stated goal of copyright protection.

In addition to copyright’s failure to achieve its stated policy goals, Patry cites its inability to keep pace with technology as another failure. While the law should encourage the market to make productive use of new digital platforms, the most recent attempt to update the law for the digital age, the DMCA, actually inhibits technological innovation through the use of digital locks and criminalization of digital copyright infringement. “In the DMCA world, both consumers and technology are treated as the enemy. This unfortunate approach ignores that consumers’ expectations are greatly influenced by technologies.” This amendment to the copyright law allows gatekeepers to block new technologies and milk old, inefficient business models when the laws should actually encourage innovation that meets market demand. “While copyright owners like to portray this as a legal problem – a problem of piracy – the problem is a market problem, arising from the continual failure of copyright owners to respond and adapt to changing markets and the technologies that drive consumer demand.” The development of internet-based technologies for access to digital content has created consumer expectations that many content owners have failed to meet. Patry maintains that approaching this business problem with aggressive litigation and lobbying efforts for increased protection is blatant misuse of copyright law.

Current copyright’s chilling effect on creativity and technological innovation is the result of a feedback loop between large media’s lobbying efforts and congressional desire to proactively address the challenges of the digital age. “The one-sided, heavy reliance of government officials on the copyright industries’ inaccurate claims of financial harm is extremely common. Inflated figures, unsupported assumptions, and false correlation-to-cause arguments are used to gain greater control over the public’s access to culture and knowledge, and to divert public monies for the benefit of the private sector through misguided enforcement efforts. Wildly exaggerated claims of the importance of copyright owners to the overall economy are the vehicle by which this agenda is pursued: policymakers are led to believe that they are acting not for the benefit of private interests but instead to protect the broader economy.” Congress has been led by major media companies to legislate copyright policy based on the protection of content alone by convincing them that the content owner’s interests and the public interests coincide when they are actually quite different.

Patry’s general recommendation for fixing copyright is that it be transformed to address changing consumption habits. “A right of remuneration, not the ability to say no to things you can’t control anyway, must be the new focus.” Consumer expectations are turning away from ownership of physical copies and towards access to cloud-based content. Our law must reflect this evolution. Patry recommends that information systems be harmonized to facilitate collective licensing, the number and duty of collecting societies be dramatically reduced, and worldwide exhaustion of digital rights upon the initial licensing of a creative work.

A strong fair use provision, Patry asserts, will help ensure copyright law remains flexible to respond to the pace of technology. “The rapid pace of technological innovation brought about by the internet and digital tools has radically collapsed the time lines for businesses to adapt and therefore for laws that seek to regulate business issues arising from the internet. Static laws that attempt to establish for all time the rules governing technological and market innovation will impede that innovation.” Since fair use is set forth as generalized principles to be followed on a case-by-case basis, rather than a set of strict guidelines, it provides the flexibility to keep pace with rapid technological advancements because it transcends communication tools and entertainment mediums to allow the legal system to focus on the underlying policy goals of copyright.

In addition to the prescriptions discussed above, Patry makes an umbrella recommendation that he asserts is vital for all of his specific recommendations to be successfully implemented. “I call for a moratorium on the introduction and passage of any new legislation until (1) we have established independent, rigorous, economically verifiable methodologies by which all proposals will be tested and later reviewed for their effectiveness, and (2) we have tested all existing laws by those methodologies and have repealed or suitably amended those that fail the review.” If we want copyright law to produce certain results we should base it on evidence that it is likely to create such results. Patry describes our current system as “policy motivated evidence-making, not evidence-based policymaking,” because the DMCA and previous copyright extensions have been based on fabricated claims by corporate lobbyists about astronomical losses from digital infringement. Having laws that produces the desired responses requires that legislators perform independent empirical research on market conditions rather than relying on special interests. This approach, Patry argues, will produce laws that are both fair in content and seen as legitimate by the general public. Under our current approach to copyright legislation it is no surprise that copyright does not function as intended and is not abided by large portions of otherwise law-abiding citizens.

Finally, Patry proposes some very specific changes to copyright law. We should greatly reduce the duration of copyright. “The social costs [of long term copyright] are easy to identify: consumers paying monopoly prices to corporations for 100 years, with restrictions on access and use, and a large class of unusable orphan works. Term extension is a social disaster.” Additionally, we should reintroduce some formalities for copyright eligibility, “principally the requirement that the copyright owner file a document with a government agency expressing a continued interest in the work.” Formality requirements, Patry argues, will ensure protection only in works in which protection is desired and that the public knows whether a work is protected and from whom they may license it if desired.

Reclaiming Fair Use:

In Reclaiming Fair Use, Patricia Aufderneide and Peter Jaszi argue that a healthy copyright system is increasingly important to everyone in society because it affects our ability to create and share culture. Our copyright system is unhealthy because it heavily favors content owners at the expense of the public interest in sharing and creating new media, and, as a result, at the expense of cultural growth. Fortunately, however, the copyright’s fair use provision provides creators of all types with an opportunity to assert their rights and regain a healthy copyright balance. “That Doctrine says, under some circumstances (broadly, when social benefit is larger than individual owner’s loss), people can quote copyrighted work without permission or payment.” Aufderneide and Jaszi analogize fair use to a muscle: unused it atrophys, but when exercised it grows and becomes stronger. Reclaiming Fair Use outlines the history of the fair use doctrine, its significance to the development of culture, how various groups have used it to their advantage in the digital age, and how that use benefits everyone. The book ultimately champions the continued assertion of fair use rights in order to regain balance in copyright law.

In the latter half of the twentieth century, leading up to the Copyright Act of 1976, the trend in legal practice was towards increased protection for content owners. “The law, which took effect in 1978, reflected the interests of the major media corporations in longer, stronger protection. The final bill looked like a gift to them, including (among others) the protection of all works from the moment of creation; a single copyright term for all new works…confirmation of the 1972 extension of copyright to sound recordings; the relaxation of copyright formalities such as the need to use a copyright notice; clarification of the copyright’s application to derivative works and new media; and the provision of new harsher penalties for infringement.” In addition to the vast expansion of rights under the 1976 Act, courts have expanded copyright by greatly reducing the requisite level of creativity necessary for protection, increasing protection under the exclusive rights, especially the derivative right, and incorporated the theory of secondary liability (infringement by association) into copyright. On top of this the DMCA instituted criminal penalties for infringement. Aufderneide and Jaszi maintain that these factors together have had a significant chilling effect on creative expression.

This steady increase in copyright protection was facilitated, they argue, by the trend of viewing copyright in economic, rather than cultural, terms. “…[A] rigorous economic emphasis (on copyright law) downplays the importance of fair use and obscures the real objectives of the copyright system.” When copyright is a matter of pure economics the tendency towards overprotection is easy to indulge. Content protection and infringement regulation make sense from an economic perspective because they can be measured more definitively than cultural enrichment. The public benefit of increased access to culture, however, is more nebulous through an economic lens. This trend towards a property-based perspective on copyright, coupled with the fear instilled in large media companies by easy digital infringement, argue Aufderneide and Jaszi, allowed the law to ignore the public benefit arm of the copyright balance in favor of long and strong content protection.

The codification of the long-used common law doctrine of fair use in the 1976 Act, however, was a small but essential victory for the public interest. From the Statute of Anne onward copyright’s stated policy has always been to balance the private interest of the creator with the public benefit of increased cultural expression. It is the fair use provision of the Copyright Act that represents and protects that public interest side of this copyright policy balance. “Fair use does not protect the interest of any one individual or group so much as it protects freedom of expression and the capacity of the culture to develop.” While free expression has suffered during the twentieth century at the hands of long and strong copyright protection, the recent increased assertion of fair use by creators, scholars and practitioners has started to tip the copyright balance back towards level.

The framing of the copyright debate in the digital era, argue Aufderneide and Jaszi, has been a substantial challenge to fair use advocates because the content industry has been able to control the debate. “Content industry rhetoricians called unlicensed use theft, criminality, and piracy. Free-culture activists called copyright owners greedy corporate thugs and called for a culture of free sharing…Copyright was treated not as a multifunctional tool to promote culture, but as a shield by some and a cage by others.” The content industry “represented all of copyright policy as being about protection of copyright holders’ monopolies.” Legal and cultural studies acquiesced to this framing by focusing on the need to expand a creative commons in response to strong copyright protection. Activists, including software developers, artists, and students, did likewise by painting copyright itself as the enemy to be fought against or rejected out of hand. “Both industry and copyleftists use the language of piracy. In this way, copyleftists capitulate to content industry assumptions about the hegemony of copyright ownership in the current system, rather than emphasizing the importance of balanced rights.” This rhetoric left no space for discussion of regaining balance within the Copyright Act, specifically through fair use.

In spite of this rhetorical setback, fair use is making a come back through diligent and considerate exercise by legal and cultural scholars, nonprofit organizations, technology businesses, educators, and creators. Aufderneide and Jaszi focus particularly on the creation of codes of best practices for fair use by documentary filmmakers. “These codes of best practices bore out the scholarly insight that practice matters in making fair use useable. They also showed, in their success, that fair use is not unreliable within communities of practice when the capacities of the law are matched with cultural missions that range from making new work to education to facilitating research.” These codes give creators the confidence to reuse and transform copyrighted material without permission and, most importantly, with significantly reduced fear of legal redress. The codes are good for copyright owners too because proper fair use gives exposure to copyright owners through use of their content that does not free ride off of their creation. The codes are also good for lawyers and judges. “To the extent that communities of practice can articulate how they understand their fair-use rights, and describe them within the terms of their practice…they can strengthen not only their own understanding but also the ability of lawyers and judges to make reasonable decisions.” When creators can establish their transformative use of copyrighted material in the context of their industry, Aufderneide and Jaszi assert, lawyers and judges can make a more informed decisions based on copyright policy. “But mostly the big benefit [of these codes] is that more culture is created with less fuss.”

In Reclaiming Fair Use, Aufderneide and Jaszi claim that, while copyright is unhealthy because it favors content protection over free expression, the Copyright Act itself contains the tools to correct that balance. If creators, activists, and scholars continue to assert their fair use rights appropriately a healthy balance in copyright can once again be achieved.

Analysis:

The authors of How to Fix Copyright and Reclaiming Fair Use identify similar problems with Copyright, but discuss disparate sources for those problems and recommend largely different remedies.

Both works resoundingly agree that copyright law no longer coincides with copyright policy, which has been made exceedingly clear by the accelerated change of the digital age. Additionally, they agree that a dire symptom of this disconnect is that the intended balance of copyright policy, protection of private creative interests and enrichment of public access to culture, has tipped dangerously in favor of the private interest. The alarming end result that Patry, Aufderneide and Jaszi identify is the chilling affect this imbalance has on creativity and freedom of expression.

Beyond the chilling effect copyright law has on expression that both works identify, the authors’ diagnosis of copyright’s problems differ in their academic focus. Patry focuses largely on economics and market failure brought about by a broken copyright system. He highlights the substantial and dangerous chilling effect our current law has on technology and business innovation. This economic and technological danger is, in Patry’s view, as problematic as the dangers to expression discussed above. Aufderneide and Jaszi, on the other hand, focus primarily on the cultural effects of an imbalanced copyright system. They view the greatest danger as one in which culture stagnates at the expense of private property interests in creative expression.

This difference in focus makes sense in light of the authors’ professional foci. Patry works in the private technology sector as Senior Copyright Counsel to Google Inc., while Aufderneide is a professor of communications at American University and Jaszi is a professor of intellectual property law at the same institution. It is important to note that this difference in focus is a matter of degree. Both works discuss the problematic economic and cultural effects of a poor copyright system, but they do not ascribe equal gravity to these issues.
The authors also agree, in a narrow sense, on the reason copyright law has become significant problem. They argue that the widespread misconception of creativity springing from solitary genius is the underpinning of bad copyright policy. This misconception has led to the incorrect assumption that strong protection of an entire creative expression is appropriate because each work is entirely the creation of the artist. This property-focused approach to copyright policy has facilitated the ever-increasing protection that both works decry. In reality, the authors argue, creativity is based on copying. The correct view, one that would allow for an appropriate amount of transformative copying in creative practice, is that all creative works borrow significantly from past work and the public sphere.

Despite this philosophical consensus, How to Fix Copyright and Reclaiming Fair Use discuss the practical reason for an imbalanced copyright regime in quite different ways. Patry focuses heavily on the ability of large media corporations to control the legislative process. He argues persuasively that their lobbying efforts have been largely based on fabricated data about the effects of digital copying. Congress has been willing to adopt the corporate perspective in order to appear proactive on digital infringement in a time of great uncertainty about its effect on the economy. In Patry’s view the public, and creators in particular, are victims of an unjust system.

Aufderneide and Jaszi reject victim politics because this approach marginalizes creators and discounts their ability to assert fair use rights and, ultimately, rebalance copyright. Their focus in identifying the practical reason for the copyright imbalance is on the ability of content owners to frame the debate around ownership and piracy. Furthermore, and perhaps even more damaging, activists, scholars, and creators have acquiesced to this perspective by approaching copyright as the enemy, asserting a need for a creative commons, and using the language of ownership and piracy to discuss their own activity. In doing so, these groups have neglected fair use as a viable tool within copyright and undermined their own interests.

The two books diverge most on their proposed solutions to the copyright problem. Where How to Fix Copyright proposes a number of specific remedies, Reclaiming Fair Use focuses, unsurprisingly, on fair use and its ability to create change within the system. Patry does discuss fair use as a significant part of the solution, devoting an entire chapter to the subject, but he argues that broader leeway for transformative copying is not enough because of the drastic change in markets caused by digital consumption. Since consumption of creative products has changed from physical ownership to digital access, copyright must be rebuilt around this trend. This reconstruction requires impartial legislation based on accurate research, if it can be achieved at all.

In contrast to Patry’s start-from-scratch approach, Aufderneide and Jaszi advocate for change within the law through greater exercise of fair use rights. Fair use embodies the counterbalancing policy that can reassert the public interest if used diligently and properly. This proper exercise of fair use rights will lead, the author’s assert, to more consistency in creative work, legal practice, and legal decisions; more exposure for artists; less economic waste; and, most importantly, greater cultural enrichment for society as a whole.

Both How to Fix Copyright and Reclaiming Fair Use are works of advocacy in favor of a more balanced copyright system. The former, however, is less objective than the latter in that it fails to explain that its foes, media corporations and ignorant legislators, have acted rationally to protect their interests. Where Patry attributes copyright imbalanced to information bias, lobbyist strong-arming, and hesitancy to innovate, Aufderneide and Jaszi explain more thoroughly the real (if exaggerated) injuries caused by large scale infringement, the risk to large corporations in changing business models before the market has agreed upon a particular consumption platform, and legislators desire to protect a large and growing sector of our economy. When put into context by Aufderneide and Jaszi, the story of copyrights imbalance in the digital age makes more sense. This broader understanding allows for a more informed approach to solving what both books correctly identify as a significant legal problem.

Additionally, Reclaiming Fair Use poses solutions that are more realistic than Patry’s proposed overhaul because they work with tools that already exist. Patry himself admits that “[t]here is reason to be skeptical that [his proposals] will not occur.” This is not to say that they are not useful as aspirations for a highly functional copyright system. If we are to achieve great things we must propose bold, innovative solutions to significant problems, even if those solutions seem unrealistic. Where Reclaiming Fair Use shows us what we can do to rebalance copyright, How to Fix Copyright shows us what we should do.

-Dave Murphy

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One response to “Copyright Law: Fixer-Upper or Tear Down?

  1. Pingback: Set of Principles in Fair Use for Journalism | Center for Social Media | Hey Sweetheart, Get Me Rewrite!·

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