Recently, I joined sixty-seven think tanks, advocacy groups, scholars and stakeholders on a letter to the 114th Congress supporting a traditional law & economics view of IP rights. The letter outlines guidelines and a framework through which lawmakers should view intellectual property rights. The letter suggests that, instead of weakening the rights of innovators, creators, and entrepreneurs, Congress should instead reflect on the integral role IP rights play in American economic, technological, and cultural leadership. And as such, Congress should focus on preserving and enhancing IP rights by fostering market based solutions to widespread IP theft.
That letter appears to have struck a nerve. Indeed, a counter letter signed by thirty-three organizations and scholars skeptical of copyright was released on March 9th. Entitled, “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” the letter purports to “represent … creators”. I’ll share my comments below on some of my problems with that letter.
The very day following the Copyright Alliance and CreativeFuture, two coalitions representing actual creators, released letters of their own – signed by over 1,500 creatives – which according to their joint press release “articulate[s] the complementary relationship between a strong copyright system, free expression, creativity, innovation, and technology.”
As someone who has worked on copyright policy for many years, including participating in a number of meetings with the World Intellectual Property Organization (WIPO) in Geneva, the bi-partisan and broad support for strong copyright represented by the letter I signed and the creators’ letters is gratifying. By comparison, the support for the copyright-skeptic letter was a bit thinner. However, as I’ve suggested, the copyright-skeptic letter deserves some further comment.
Even to someone like me who has been fighting these battles for years, it was stunning to see copyright law described as “regulation of content creation and dissemination.” This is incorrect, and the signers of the letter have to know it. Copyright is a legal right, not a regulation. Rights and regulations are not the same things.
The copyright-skeptic letter also suggests that it's limitations on copyright that facilitate a free market. Actually, it's the opposite—property rights facilitate markets. And as any true free-market person should know, government limitations and restrictions on property rights are the things that cause friction in the function of markets, not property rights. No one would say that your right to keep people out of your home is a regulation: it's a right of ownership. It's the limitations on the use of one's property, such as zoning rules or public easements, that are regulations.
Now it’s true, of course, that copyright policy seeks to balance the rights of the property owners with the needs and demands of consumers, as the letter says. But consumers do not have a right to access content; it’s the owners who have a right. It is a distortion to state or imply that somehow the wishes of consumers are equal in importance with the rights of property owners.
The letter also suggests there is a tension between copyright and free expression, but this is actually offensive. The Supreme Court observed that
“the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
And additionally,
“[c]opyright… does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for ‘fair use’ even of the expression itself.”
The idea-expression dichotomy makes clear that ideas are not copyrightable, but the particular expression is. You can communicate any idea you want, you just can't use someone else's expression to do it without their permission.
The notion that copyright limits free expression is perhaps the most insidious and frustrating argument in the copyright-skeptic letter, particularly as no group of stakeholders more vigorously defends their ability to speak freely than do creators. The creators’ letters perhaps said it best.
“To creative people, self-expression is deeply personal. It is at the heart of everything creatives do. We view any effort to diminish the rights of creatives in the name of ‘free speech’ as cynical and dishonest.”
Fortunately, this assertion by the copyright skeptics does not withstand scrutiny. For instance, in 2013 Professor Sean O’Connor published a policy brief demonstrating that “the First Amendment and copyright law maintain the same complementary relationship in cyberspace that they have in physical space.”
The letter also claims copyrights are monopolies, which is only true in a very peculiar and not at all usual antitrust sense of the word. As the Supreme Court has observed,
“copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”
The normal, antitrust use of the word “monopoly” suggests a level of market power that is absurd for creative works. The creative industries are among the most risky in our economy. When a movie studio releases a movie, it competes fiercely in the marketplace against every other movie, and against every other form of entertainment available to consumers. To suggest that creators enjoy monopoly power in the marketplace because they have the exclusive right to sell their particular expressions is nonsense.
In the letter, fair use is described as “a cornerstone of free speech.” Fair use is important, but that language is hyperbolic. Copyright skeptics have grossly distorted the public’s perception of what fair use is. This IPI paper describes accurately the legal reality of fair use, if you’re interested. But the idea that somehow fair use has been the key element in allowing motion pictures and music to flourish, as the letter states, is a further absurdity.
And the letter’s sleight-of-hand in trying to link copyright to the current disputes over “patent trolls” by creating the term “copyright trolls” is just kinda pitiful.
There is no such thing as a perfect law, and it’s entirely possible that improvements can be made to our existing copyright regime. But for reasons I’ve outlined, the copyright-skeptic letter is an unhelpful contribution to discussions about copyright. Alternatively, the strong intellectual, moral and political support for IP demonstrated by the pro-IP and creators' letters should help give Congress the direction needed to ensure American innovation, creativity and entrepreneurship continue to lead the world.