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May 16, 2013

Observations on today's copyright hearing

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I've already observed and complained about the fact that the copyright review process began with a hearing featuring people who participated in a process that completely omitted the most important stakeholders of all, the creators and owners of copyright.

What was interesting during the hearing was to hear at least one of the participants, Jon Baumgarten, admit that the Copyright Principles Project (CPP) was very much skewed toward the interests of those who see copyright as an obstacle, and skewed against the interests of creators and owners. Indeed, Mr. Baumgarten confessed that the CPP actually resulted in very little "consensus" at all, which called into question why the title of the hearing was “A Case Study for Consensus Building: The Copyright Principles Project.” Apparently the result of the case study was failure.

Later in the hearing Mr. Baumgarten made a particularly interesting comment that the technology community seems to think that anything that gets in their way should be cast aside (that's not a direct quote). It's an important point. Access to content has never meant that you could access anything you wanted anytime you wanted in any way you want without having to pay anything or lift a finger. Property rights are, at their core, the right to exclude. So if you weaken copyright sufficiently so that it never causes anyone any inconvenience, odds are you've weakened copyright such that it is no longer a real right at all, and no longer a protection to creators.

I found it interesting that, when each panelist was asked to mention their priorities for reform, not a single one mentioned term. Now, term may have some up later in the hearing, as I had to step away for a while, but no one mentioned it as one of their priorities.

It was great to hear several Members of Congress stating their appreciation for the importance of copyright. Early on one Member said that "Millions of Americans depend on copyright for their livelihoods," and it was great to hear this, since not one of the panelists spent any time acknowledging the importance of copyright to the U.S. economy. Again, I would have thought that should have been the focus of the first hearing.

Twitter traffic was slow to start but picked up during the hearing. @gigibsohn mostly simply tweeted out quotes from the panelists without expressing any opinion at all, though of course @mmasnick could be counted on to continually assert that the rights of the public should trump the rights of creators and owners. @future_of_music helpfully pointed out several times the lack of representation for creators, but also seemed very excited about weakening many creator rights. @illusionofmore pretty much reflected my skeptical take on the hearing and on the motives of many of the participants.

All-in-all, we learned that the Copyright Principles Project achieved almost no consensus at all, which confirms my opinion that this was a poor way to open up a copyright review process. Here's hoping that, before too long, hearings reflect the importance of the rights of creators, as well as getting the thoughts of creators about how the copyright system can be improved.

Because creators are not necessarily knee-jerk defenders of the status quo. Last April 26 I had the privilege of moderating a panel during Dallas' first ever World IP Day event. One of our panelists, Richard Kelly, a photographer, expressed some frustration with the way the current copyright system works for photographers, and clearly had some thoughts on ways that the system could be improved for both content creators like Richard, and for the customers who wish to access his content. Richard's a good example of the kind of folks Congress needs to hear from early on in this copyright review process.

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