Copyright Reform Part 2

by: Professor Jessica Litman
Professor of Law, University of Michigan Law School

In part 1, I explained some of the appeal of seeking to begin a copyright reform process by agreeing on a set of copyright principles to guide lawmakers in their drafting. In the intensely polarized environment that has come to characterize the copyright bar, confining a group’s attention to copyright principles may be one way to begin a productive conversation.

Last spring, Boalt Professor Pamela Samuelson recruited a group of copyright experts with diverse views to come together and discuss copyright reform, with the ultimate goal of producing such a set of copyright principles. I’m a member of that group. One of our first homework assignments was to write and circulate individual drafts of appropriate copyright principles. In this initial stage, the goal was not for each of us to come up with a comprehensive Restatement of wise copyright law. Rather, we agreed that each of us would write down one or more principles that we believed should be reflected in the group’s final work product.

The draft that I sent to the other members of the group follows. The draft does not represent what I would write if I could use a magic wand to replace the words in title 17 with words of my choosing. It is, instead, an attempt to articulate principles on which copyright experts across the copyright political spectrum might be able to agree. I agreed to post the draft here, because I’m interested in your comments.

Preliminary draft of copyright principles

The copyright law grants exclusive rights that are bounded in time, subject matter and scope. Some ambiguity in the location of those boundaries is probably inevitable, since technological progress introduces new possibilities, and the prospect of lobbying to expand or contract extant rights is always on the horizon. To the extent possible, boundaries should be clear, since ambiguities can deter investment in and exploitation and enjoyment of copyrighted works.

A functioning copyright system requires that there be easy ways for people who want to make lawful licensed uses of works to find out to whom they need to apply for permission. The U.S. law used to rely on indivisibility, notice, registration, and recordation to perform those functions. It has also introduced a variety of compulsory licenses to obviate the need to seek permission to use some works in some markets. Other jurisdictions rely on limited alienability or/and a multiplicity of collecting societies to perform these functions. The copyright system needs some mechanism or mechanisms to do this job.

Exclusive rights that are ambiguous in scope exacerbate the problems posed by rights holders who are difficult to identify, and vice versa.

The exclusive rights granted by copyright law should encourage creation and dissemination of works by ensuring that copyright owners have meaningful opportunities to control the direct commercial exploitation of their works. Copyright owners should not necessarily be entitled to control all incidents of direct exploitation of their works. Resale of books and paintings, for example, is direct commercial exploitation of copyrighted works that has traditionally been sheltered from copyright owner control by the first sale doctrine.

The exclusive rights granted by copyright law should encourage reading, viewing, watching, listening to and learning from copyrighted works by preserving individuals’ freedom to read, view, watch, listen to and otherwise enjoy copyrighted works as they want to without being subject to pervasive copyright owner control of reading, viewing, etc. Reading freely, however, is not necessarily the same thing as reading for free.

The exclusive rights granted by copyright should encourage investment in new markets and modes of enjoying copyrighted works by excluding most indirect exploitation of copyrighted works from copyright-owner control. The makers and sellers of trumpets have built their business model on the foundation of band music that was written and is controlled by someone else. The availability of trumpets has increased the market for and popularity of band music, to the benefit of composers, trumpet players, and trumpet music fans. Insofar as possible, the copyright law should neither give the owners of band music copyrights the right to control the design, manufacture or sale of trumpets, nor give the makers and sellers of trumpets the right to control the sale or performance of band music.

The public invests in the copyright system both by granting rights to copyright owners through the enactment of copyright laws, and by complying with the laws its Congress enacts. If the public perceives copyright law to give it a poor return on its investment, it may well respond by divesting – either pressing its elected representatives to enact additional limitations and privileges or simply failing to comply with rules it no longer perceives as legitimate. Enforcing copyright law in an atmosphere of public cynicism about the legitimacy of the law is a difficult task. A public that complies with copyright only because it’s afraid of the copyright police will soon find ways to evade or restrain the copyright police. (Recent efforts to enforce copyrights against individual consumers alleged to have infringed copyrights over peer-to-peer file sharing networks, for example, have garnered significant press coverage. Insofar as people are able to make accurate measurements, these efforts do not seem to have reduced the volume of unauthorized peer-to-peer file sharing, nor to have significantly increased public respect for copyright law.) The long-term health of the copyright system, thus, requires that members of the public believe that their investment in copyright is well spent.

One key feature of copyright laws that have public confidence is a balance between the copyright owners’ exclusive rights to control the exploitation of their works and the public’s freedom to enjoy those works. (In general, countries other than the U.S. that phrase their exclusive rights in broader terms than the United States does have needed more numerous explicit exceptions for members of the general public.) The public appears to believe that copyright exclusive rights are already very broad, and decades of public relations efforts don’t seem to have persuaded people that copyright gives creators and disseminators too little. If copyright is to retain or regain its legitimacy, any broadening of exclusive rights probably needs to be balanced by an increase in personal freedom to enjoy copyrighted works.