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May 16, 2013

A Peculiar Start to the Copyright Review Process

 
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House Judiciary Committee Chairman Bob Goodlatte (R-VA) has announced that his committee will be undertaking a “comprehensive review of U.S. copyright law,” and they’re beginning this afternoon with a hearing.

This review is widely believed to have resulted from a speech given earlier this year by the Register of Copyrights, Maria Pallente. Soon after she testified before Mr. Goodlatte’s subcommittee outlining her thoughts in more detail.

For those of us who believe in intellectual property and copyright, there is obviously a concern that this review takes place in an intellectual climate where so much effort has been devoted to tearing down the idea that creators should be able to own and control and profit from their creations. Make no mistake—while some who call for copyright reform would be content once a handful of copyright modernizations were put into place, many copyright "reformers" would like to see the bulk of copyright protection go away, so that no obstacle remains between them and free access to anything they want, including the right to profit and build business models on top of free access to the creations of others.

It’s within this context that the first hearing is puzzling.  The title of the hearing is “A Case Study for Consensus Building: The Copyright Principles Project.”  Well, the Copyright Principles Project was, for the most part, a project of copyright skeptics, although there certainly were some actual copyright proponents who were part of the project for window dressing.

The troubling part of the title is the word “consensus.” As David Lowery put in an op/ed in Politico earlier this week, how could the Copyright Principles Project have reached anything approaching “consensus” when no creators were represented?

You’ll often see the word “stakeholders” used in projects like this. They claim, as the Copyright Principles Project claimed, to bring together “stakeholders”—those  with a vested interest in the outcome.

But any consensus on copyright that is worth the name has to include the most important stakeholders in the discussion—the creators themselves. Remember, copyright is a property right, and those who own the property, who hold the rights, are the most important stakeholders of all—not just lawyers and academics and appointed government bureaucrats. It’s the creators who must not only be in the room and represented, but must also be respected and elevated in the discussions. Yes, consumers and users are stakeholders as well. But far too often in these copyright “reform” discussions the attitude has been that users of the system are the primary stakeholders, and creators are a necessary and inconvenient evil.

Only in a process where the rights and privileges of creators are respected and, indeed, elevated, will anything approaching consensus on copyright be achieved.

So why, then, is the first hearing in what will certainly be a lengthy, multi-year process devoted to hearing from a project that entirely omitted the creators and owners of the property in question? At the very least, beginning like this unnecessarily raises the hackles of the creative community, which is probably a strategic mistake in a process that will be highly controversial to begin with.

Imagine if the committee were doing a hearing on the impact of, say, wetlands regulations, but didn't bother to hear from any property owners who had been affected by the regulations? A hearing populated only with bureaucrats and regulators? That would be considered an outrage.

Or, more pointedly, imagine if when they hold the hearing about the IRS discriminating against conservative and Tea Party groups, that they only heard from IRS bureaucrats, and didn't bother to invite any of the affected groups to testify? Again, an outrage.




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