Copyright Principles Project Releases Refreshing Report Regarding Copyright ReformMatthew Williams
October 22, 2010
In a recent blog post (https://www.wcl.american.edu/pijip/go/williams10052010), I expressed some concerns regarding the state of popular discourse about copyright issues generally, and issues related to copyright’s operation within the networked economy specifically. In this post, in contrast, I would like to seize an opportunity to praise a recently released contribution to the copyright conversation.
Beginning in 2007, Professor Pamela Samuelson of the University of California at Berkeley – for whom the Glushko-Samuelson Intellectual Property Law Clinic in which I teach is a namesake – convened a diverse group of twenty copyright experts in order to interact and deliberate regarding ways that our copyright system could be improved. The group of experts, which includes WCL Professor and PIJIP Director Michael Carroll, now refers to itself as “The Copyright Principles Project.”
On September 28, 2010, the Project released a report entitled “Directions for Reform,” which will be published in the Berkeley Technology Law Journal. In my opinion, the report is an impressive and remarkable example of how open-minded and attentive discussions can produce thoughtful proposals regarding complex and politically sensitive subjects.
Although the Project did not achieve a level of consensus among its members that allowed the report “to offer a comprehensive and detailed set of reform proposals[,]” the Project “succeeded in mapping the terrain of copyright law and policy and in articulating both where [consensus was achieved] and where and why [consensus was not achieved] about particular aspects of U.S. copyright law.” Moreover, it did so “in a way that has avoided the climate of recrimination that has characterized so many copyright debates in recent years.” This is no minor achievement, and the members of the Project deserve to be congratulated.
In that spirit, I will not focus today on aspects of the report with which I disagree – although there are several. Instead, I will briefly summarize some of the aspects of the report I was pleased to see articulated with careful precision and moderation. My discussion here does not do complete justice to the intricacies of the report, and everyone should take a look themselves. (http://www.law.berkeley.edu/files/bclt_CPP.pdf)
First, the report states that “[c]opyright law … helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values.” Far too many publications portray copyright as an uncontained virus that impedes cultural and technological progress at every turn. It is refreshing to see copyright given some of the credit it is due for playing an important role in our constitutional scheme.
Second, the report acknowledges that “[u]nauthorized activities such as peer-to-peer file-sharing of copyrighted works are understandably viewed as a serious threat to the financial incentives that the copyright system is designed to give to professional authors as well as to those who invest in the creation and publication of their works.” To me, recognizing that the Copyright Act requires revisions designed to benefit companies and individuals engaged in the business of producing and distributing copyrighted works as well as technology companies, electronics manufacturers, remixers and consumers, is an essential first step toward progress. In other words, “[a] good copyright law must consider both the benefits and the problems resulting from digital networks.” (Emphasis added.) Policies based on Internet utopianism will not give us the best of all possible worlds.
Third, the report recommends a central and on-going role in policy-making and administration for the Copyright Office. The continued existence of a copyright-focused body within the Library of Congress – which is within the U.S. legislative branch – should be an important facet of any copyright reform effort. The Copyright Office historically has managed to avoid succumbing to temporary political waves in a manner that some executive branch agencies arguably have not, and we should not allow the unique perspective of the Office to diminish or disappear.
Fourth, the report states that the members of the Project believe that the current safe harbors for internet service providers (“ISPs”) contained in section 512 of Title 17, which are “contingent on ISPs having rules to prevent abuse by restricting access to the Internet by repeat infringers[,]” are “generally consistent” with good copyright principles. Moreover, the report recommends the creation of a new safe harbor designed to encourage ISPs to “undertake reasonable measures to prevent copyright infringement.” The members of the Project apparently were in agreement that “[s]ervice providers can do more to inhibit infringement and may bear some responsibility for infringement when they do nothing to mitigate it.” In a political environment in which almost every effort to encourage cooperation between copyright owners and ISPs is quickly and harshly attacked, it is nice to see a group of experts make “an attempt to find a middle ground and to stimulate thoughtful consideration of the role technology might play in preventing infringement.”
(As an aside, I should note that Professor Samuelson recently published an op-ed –http://articles.sfgate.com/2010-09-26/opinion/24098184_1_copyright-law-copyright-experts-copyright-industry – in the San Francisco Chronicle in which she made it clear that she opposes so-called “three-strikes” laws “under which people would be kicked off the Internet if they are caught infringing three times.”)
Fifth, the report acknowledges that “[i]n practice, many copyright owners tolerate a range of unauthorized uses of their works.” In my view, spreading the word regarding this point would be one effective way to achieve one of the Project’s goals; to get “members of the public to respect copyright law and abide by it.” As Professor Paul Goldstein previously has ventured, “the incidence of unrequited uses [of copyrighted works] outnumbers the incidence of unjustified demands by no less than a thousand to one.” However, misconceptions regarding how frequently large copyright owners enforce their rights are fueled by the “tyranny of the anecdote [which] is particularly pernicious in an environment like the present in which the press prefers to report what is brief and graphic over what is sustained and accurate.” Inaccurate anecdotes – as well as copyright abuses – have thus decreased public respect for copyright and contributed to generating the dramatic level of infringement that currently drives policy decisions.
Finally, the report concedes that “it is not surprising that courts and Congress have found it difficult to adapt the law in a coherent and principled way” given the decades of “dramatic changes in the copyright landscape” resulting from “global digital networks and technological tools that are widely used to access and interact with copyrighted content.” Although many of the current lines of criticism regarding copyright policy-making begin and end with charges of corruption against a Congress that is supposedly captured entirely by industry, these criticisms fail to recognize that the decisions policy-makers have faced over the past few decades have been extremely complex. Commentators should hesitate before becoming so convinced in the accuracy of their own views that they assume anyone who disagrees with them is corrupt.