The idea behind copyright was simple – creativity would be catalyzed if individuals were given the exclusive right to profit from their works for a period of time. The law was supposed to strike a sensible balance between financial incentives for creators and social benefits.
Early on, that may have been the case, but the law has changed greatly since the first Copyright Act was passed in 1790. Today, copyright does far more to create an information oligarchy than the robust information democracy the drafters of the Constitution and the first act had in mind.
Here is just one of a vast number of examples that shows how copyright has become an obstacle to creativity and the flow of information rather than a catalyst.
You may recall the talk by Larry Summers that sank his Harvard presidency. He happened to say that there might be reasons other than discrimination why there are relatively few women on science faculties. He was promptly attacked for his alleged insensitivity, but initially responded with a statement posted on Harvard’s website saying, “I have nothing to apologize for.”
Summers quickly backtracked when he realized that he was in deep, deep trouble and sought to delete his first reply, but it still remained accessible through Internet Archive.
A few years later, Harry Lewis, who had served as dean of Harvard College under Summers, was working on a book entitled Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion (with co-authors Hal Abelson and Ken Ledeen). He wanted to include that deleted Summers statement to demonstrate his point that nothing ever goes away on the Internet. But Harvard claimed that it held the copyright to the site and refused permission for the original statement to be published in the book.
That’s quite astonishing – a widely reported statement made in public by a university president is “protected” against merely copying it? And that isn’t a unique case. Lewis and his co-authors cite other examples. I wrote about another, the University of Missouri’s refusal to release course syllabi for analysis by the National Center for Teacher Quality, in this article posted in September.
The fact of the matter is that copyright is now widely seen as an obstacle to intellectual liberty and creativity. Some scholars now challenge the assumption that we need copyright at all. One of them is Chapman University Law School professor Tom W. Bell.
In his recent book Intellectual Privilege: Copyright, Common Law, and the Common Good, Professor Bell takes a probing look at our copyright system. He concludes that it leaves us worse off than if Congress had never made use of the Constitution’s grant of authority “To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Bell would like to see copyright law disappear, even though it’s the very field he teaches.
Copyright, he argues, is not like the natural rights people have – rights to peacefully use their property. Instead, copyright is a privilege that government confers on writers, composers and other creators. It is a privilege that lets them interfere with the natural rights of others by invoking the power of the state against them for infringing on anything to which they hold copyright.
What about the premise of copyright that by conferring exclusive rights on writers and other creators, we encourage more books, songs, movies and other works? Isn’t it correct?
Bell answers in the negative, observing that we have never applied copyright to many items that involve creativity, but nevertheless enjoy a steady stream of innovations in them. “The designs of clothes, furniture, automobile bodies, and architectural structures have developed without the benefit of U.S. copyright law,” he writes. So perhaps it’s not true that we would suffer a large decrease in output of creative works in the areas where it does apply.
In the same vein, another copyright critic, Professor Mark Lemley of Stanford points out in this recent paper that although copyright infringement of music has been rampant on the Internet, artists continue creating and distributing content. Often that content is free, but enough people still pay for total music revenues to be rising.
What would happen in the absence of copyright? Bell maintains that instead of relying on the copyright crutch to squeeze the maximum revenue out of consumers willing to pay a high price, creators would look to common law. That is, they would use the same rights everyone else has in contract to make arrangements whereby consumers would pay a small amount for access to their works and then not worry about the legal thickets of “infringement.”
As the law now stands, copyright holders usually try to cash in by charging consumers a profit-maximizing price and having their lawyers and/or the government go after anyone who infringes rather than pays. But there is a big exception for “fair use” of copyrighted items. People can make some use of copyrighted material so long as it doesn’t go “too far.”
There is, however, no clear line between “fair use” and “infringement.” Bell observes that even law professors can easily find themselves facing a suit over some use they thought was “fair” but the other party claims is “infringement.” We could escape from much costly and pointless litigation by abandoning copyright.
Exactly what arrangements would replace it is impossible to say. Development of those arrangements would not be planned, but would evolve under the spontaneous order of the free market. But a good idea of how things might change can be seen in the way many Americans now enjoy music on their iPods or other devices.
Bell writes, “Before, you did not have to pay to carry your favorite music; now you do. Has that made you worse off? Surely not. Apple’s fared use offers a better deal than analog’s fair use.” By “fared use” Bell means that everyone pays small amount to the producer. Replacing copyright with a common law “fared use” system would benefit everyone except copyright lawyers, who would have to find more useful work.
Compared with the copyright regime, fared use and common law would probably mean that some writers, musicians, and so on would make somewhat less money, but, Bell asks, why should the law aim at maximizing their returns?
Also, common law and a number of statutes offer creators defenses against those who misappropriate or misuse their works. Instead of relying on the easy crutch of copyright infringement threats for anything they dislike, they would have to find legal causes of action under fraud, breach of contract, or state and federal statutes covering unfair competition and consumer protection.
Another reason why Bell finds copyright law objectionable is that it has so often been manipulated on behalf of copyright holders. Congress has repeatedly made the law more beneficial for those who hold copyrights by extending the period of time for exclusive rights. Initially, it was a maximum of 28 years; now it lasts for the life of the author plus 70 years after his death. It’s hard to see how that serves the public interest.
An excellent example of the way the law has been manipulated involves the Disney Corporation. It holds many copyrights, the oldest of them being the cartoon “Steamboat Willie” from 1928. Currently, that copyright will expire in 2023, but Bell thinks it likely that Congress will again extend the duration of copyright due to Disney’s lobbying power.
Would it be bad if we liberated Steamboat Willie so everyone else could make creative use of his image? Certainly not, Bell argues. Disney might not like all of the applications, but America would be better off if Steamboat Willie (and eventually, many other famous cartoon characters) were free for all to copy, distribute, display, or create derivative versions of. Same for the vast numbers of other works now locked under copyright.
Intellectual Privilege is a carefully reasoned and extremely thought-provoking book. Copyright is such an ingrained part of American life that we assume we must always have it, but Bell makes you question that assumption.
When the new Congress convenes, one of the issues it ought to take up is reform – or even repeal – of the Copyright Act.
