Real Copyright Reform

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Essay: Jessica Litman. "Real Copyright Reform."



Mike Masnick:

"Litman's paper goes through the problems with today's copyright law, and begins to explore what real copyright reform should entail, even while noting the political difficulty of having it go anywhere:

- A wise approach to copyright revision might inspire us to rethink the model. If both creators and readers are ill-served by distributor-centric copyright, and if the economics of digital distribution now makes it possible to engage in mass dissemination without significant capital investment, perhaps it is time to reallocate the benefits of the copyright system. The consolidation of control in distributors' hands does not appear to have made life easier or more remunerative for creators. Copyright lobbyists have not shown that recent enhancements to copyright have made it easier or more rewarding for readers, listeners and viewers to enjoy copyrighted works. Perhaps the classic picture of copyright is too far removed from its reality to be useful.

From there, Litman makes similar arguments that have been made recently by James Boyle and William Patry (among others), wondering why there is little investigation into the actual impact of changes in copyright law, rather than just assuming that "stronger protections" lead to better results, when so much of the evidence suggests otherwise. And, of course, all of this harkens back to the speeches by Thomas Macauley from over a century and a half ago, back when he was able to point to the lack of evidence from those who wished to extend copyright law:

- Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.... I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

And yet, in copyright reform today, there seems to be no one in the political realm with enough power to play the role of Macauley today. But Litman raises these same issues: Instead of asking how to enhance copyright owner control, I suggest, we ought to be asking why. Does a particular proposed enhancement of copyright owner prerogatives seem likely to expand opportunities for creators or improve reader, listener or viewer enjoyment of copyrighted works? Is it likely to make the copyright system simpler, more effective, or more transparent? Does it seem to be designed to shore up copyright's apparent legitimacy? If not, it seems as likely to make the current mess worse instead of better. Litman goes on to suggest that the fact that so many people out there don't have any respect for copyright law at all is pretty clearly the fault of the current copyright holders who have twisted and abused the law to the point that people just don't respect it.

So, her ideas for copyright reform are based on bringing back "legitimacy" to copyright law by focusing on four principles:

  • Radically simplifying copyright law
  • Empowering content creators (rather than intermediaries and distributors)
  • Empowering readers, listeners and viewers (who, after all, are supposed to be part of the beneficiaries of copyright law)
  • Disintermediating copyright away from the middlemen who seem to control the law today

To then accomplish this, she suggests the following steps:

  • Focus on commercial exploitation (rather than personal use)
  • Simplify what copyright covers (rather than breaking out each separate exclusive right within copyright)
  • Reconnect creators to their copyright (via a termination right that lets them take copyrights back from third parties)
  • Clearly recognize readers' (or viewers', listeners', users', etc) rights
  • Get rid of existing compulsory license (and similar) intermediaries, such as ASCAP, BMI, SoundExchange and others]

It's definitely an interesting proposal, though I think there are some serious problems with it. I've said in the past that the line between commercial use and personal use is increasingly blurry, so trying to draw that distinction may be a lot harder than most people think. We're already seeing the kind of mess termination rights create, and I'm still not sure why they help matters, rather than just make them more complex. And, of course even as Litman notes, new intermediaries will spring up to fill the void of the old ones." (