Parts of the debate
are still missing from the discussion of copyright reform in Congress, but we’re starting to fill
in the gaps. This includes the need to look at individual artists, creators,
and users instead of the intermediaries and big incumbents.
Yesterday, I briefly summarized some of the major themes
coming from the witnesses in the House IP Subcommittee’s copyright reform
hearing. Since the witnesses covered those same points in their oral testimony,
I thought I’d devote this post to some of the themes that emerged from the
other side of the room—from the representatives in their statements and
Content or Tech? Tech
I don’t think I’d be exaggerating if I said that most of the
members in attendance began their statements with something like this:
“Copyright law is important because we need to make sure to
protect artists and creators, and ensure they keep making wonderful things that
help drive the economy. Of course, we need to do this while making sure that
the law allows technological innovation that is also an important part of our
lives and our economy.”
I’m paraphrasing, but I’m still pretty certain that the
above could be tacked on to the beginning of any Congressional statement about
copyright today, or in the near future. And that’s frustrating.
It’s not wrong,
per se, it’s just a woefully incomplete picture of what copyright is about,
distilled only to the biggest, most visible players in the political side of
the copyright debate. And while it’s natural that members of Congress would
focus on the biggest, most visible players (a cynic would accuse them of caring
only about potential donations; someone less cynical would say they’re rightly
focused upon large employers and jobs), but in doing so, they ignore the two
sets of people who copyright was explicitly designed to help.
What about Artists
One of the things that Daniel Gervais pointed out in the Q
and A was that, taken at a very abstract level, copyright is actually simple.
As he put it, it’s basically about artists and the public. After that, there’s
the question of getting the works of art to the public.
The funny thing about copyright law is that for most of the
recent past, it’s been concerned primarily with that bit in the middle—the
intermediaries—whether they’re record labels or ISPs. But the Constitution is
concerned first about the effects on the public—the progress of science and the
useful arts—and with incentivizing authors to further that end. What happens in
the middle is just a means to those ends.
Some of the questions asked by the members went to at least
part of this—they asked about how to ensure that copyright law looks out for
But the question remains as to how those necessarily
disparate voices can be represented in a forum like Congress or at a roundtable
of a few academics.
Certainly trade associations funded by the major
conglomerates won’t represent the vast majority of individual creators; and
cherry-picking an author here and a singer-songwriter there can’t give you more
than a few isolated anecdotes—data points, to be sure, but certainly not enough
to paint a reliable picture of the landscape.
Some groups have tried to fill in this picture—the Future of
Music Coalition put together a project to
study how musicians are making their money today—their results would seem to
show that a lot of assumptions about art and artists that drive lawmakers’
decisions aren’t as true today as they may have been in 1976—if they ever were.
It’s therefore important that policymakers keep in mind the
vast majority of creators who don’t have contracts with labels, who may not be
members of guilds or societies, and who may be more involved with touring or
promoting their new album than placing op-eds in major newspapers or drafting
comments to federal administrative agencies.
And the other side of the copyright bargain must likewise be
accounted for. Just as publishers and labels aren’t the same as authors and
musicians, consumer electronics companies aren’t consumers. This often gets
lost when people draw the battle lines as being between Silicon Valley and Hollywood.
Individual users, for instance, are unlikely to have the
ability to defend against lawsuits threatening massive statutory damages for
even small alleged offenses, and are more likely to fall victim to copyright
trolls, who abuse the copyrights
laws to extort “settlement” payments from masses of users.
Individual users are also the ones who operate under a cloud
of legal uncertainty about whether their in-home activities, like moving media
from one device to another, can get them in trouble. A solution that works for
tech companies, like an intermediary safe harbor or limits on secondary
liability, leave the consumers of copyrighted works on the hook.
It’s also important to remember that “the public” isn’t some
abstraction of consumerism—it includes consumers, sure—the people who are the
readers of authors, the listeners of musicians, the players of games, and the
viewers of movies and TV shows.
But an outdated copyright system that finds harmless uses
illegal ends up treating paying customers as if they were “pirates.” While many
of the members indicated they didn’t believe that “everything should be free,”
it’s hard to actually find anyone seriously proposing that.
Plus, consumers are only one part of the public. The same
people who are buying creative works are also creating with them themselves, not
just remixing, but learning to play music by singing their favorite songs for
the benefit of their friends, whether in a dorm room or on YouTube. Those
creators in the making and remaking creators are part of the public, too.
How Are They Affected?
And the scope of artists and the scope of the public leads
to another theme present throughout the hearing—the anxiety over what happens
when copyright law changes. A number of members expressed concern about
“weakening” or “watering down” copyright law; others more generally were
concerned about changing it more generally. A bit of the back-and-forth between
Baumgarten and the other witnesses was about whether copyright law needed
“fixing,” or just “amending.”
The concern is certainly reasonable. It’s become a cliché to
call copyright law something like “the engine of the creative economy” or
similar such things. And people whose livelihoods depend on that machine
running are naturally anxious about tinkering with it.
But the need for that tinkering is becoming increasingly
clear. Maybe not to those around whom the system was designed those several
decades ago, but for all of the people who weren’t, or couldn’t be, at the
table in 1976. The fact that it still works, in some cases, for some people
(even, or especially, the well-represented and powerful ones) isn’t a
justification to fossilize the system as it is. That engine is doing anything
but running smoothly for small users, small artists, and
small tech companies.
The Copyright Act is a law, not a symbol. It exists for a
particular purpose. Altering it to make it better fit that purpose isn’t
attacking some sacred object or inviolable principle. Would anyone weep if the
mishmash that is section 110 were streamlined? I doubt it somehow.
So changes are needed. And the changes proposed by groups
like PK and noted by the Copyright Principles Project seek to make some of those changes—and none of them propose doing away with
copyright, or making everything free of charge.
As to how to make those reasonable changes without harming
legitimate interests, there are a number of modest changes whose effects would
seem not to upset the applecart too much. As for more ambitious proposals,
well, there’s the need to gather more facts.
Getting to Answers
This leads to the question of how to measure the effects of
even the copyright law we have today. As both the Government Accountability
Office and, more recently, the
National Academies have noted, the empirical data on the ground is quite thin, and a lot of the
studies that are out there come from interested groups.
Which is why it’s troubling to see people trying to downplay
the need for good data on the economic effects of the different aspects of our
copyright system. People begin questioning whether or not the authors of the
NAS call for more information are biased, or ask whether we should even really
care about the economics of copyright, when there’s intangible, non-economic
justifications for the law.
Which is a strange thing to ask for, if you’re the one who
has been touting the economic boon that copyright law brings to the country. If
that’s so, how can it possibly hurt to discover which parts of the law are
pulling their weight and which are not?
The Constitutional justification for copyright is certainly
a utilitarian one, and beyond that, even if there are deontological reasons for
copyright, well, there are practical ones, too. What harm does it do to measure
those? And if an uneconomical part of copyright is near and dear to creators’
hearts, surely no one loves section
114, as it’s written, in their
Chairman Goodlatte noted the need for answers to the
empirical questions about copyright at the beginning of the hearing. In fact,
he framed the discussion in terms of three particular questions:
- What metrics do we use to measure the success or
failure of copyright law?
- How do we measure the effect of copyright on the
- How do we ensure that all stakeholders,
including individual artists, are included in policy discussions on copyright?
These are the right questions to be asking as we move forward.
A lot of assumptions about markets, technology, and artists have been at the
foundation of our laws today. Making sure that we have the information to move
forward, and account for artists and their audiences in the future, is
critically important and a necessary part of necessary reform.