5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating — John Degen kicks us off this Friday with a provocative and entertaining look at some of the common criticisms of copyright and authors’ rights.

Judiciary Committee to Hold Copyright Review Hearing — Two years ago, Register of Copyrights Maria Pallante pondered a Next Great Copyright Act. Now, after 20 hearings and 100 witnesses, the House Judiciary Committee will be hearing from Pallante to get her perspective on copyright review. The hearing is April 29, 10amET, with a webcast available here.

From Mockingjay to Boardwalk Empire, Seamstress Lara A. Greene Has Dressed the Best — “If clothes make the man or woman, than costumes often go a long way towards making a movie, particularly in historical dramas. Costumes are a major part of setting the tone of a film or a television show; they tell us so much, even before an actor utters his or her first word.”

PWC Report Confuses the “Stealing Economy” With the “Sharing Economy” — “PwC equates peer-to-peer sharing of copyrighted works—an illegal action that deprives the owner of that copyright their just compensation—with the legitimate peer-to-peer networks that people use to sell rides via their personal automobiles or to rent out their power tools. This distinction is stark: The latter encompasses sharing things that individuals own and thus have the right to share, and the former encompasses sharing things that individuals do not own, and therefore do not have the right to share. By equating these two things, PwC is buying into the false narrative that digital media companies are fighting tech innovation by not succumbing to the peer-to-peer sharing model. The truth is that the film and TV industry are offering a variety of legal services that allow users to watch their favorite programming.”

Term extension and respect for artists: a reply to Michael Geist — From Barry Sookman: “Michael Geist, a long-time advocate of weaker laws for artists and makers of sound recordings and loopholes for those wanting to use their creations without compensation…  was quick to criticize the proposed amendments in a post the day after the proposal was announced and in another one earlier today. Unfortunately, many of his assertions are inaccurate or do not stand up to scrutiny.”

Green party plan to limit copyright attacked by writers and artists — “The Green party may be forced to backtrack on its proposals to limit UK copyright terms to 14 years after a howl of protest from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman.”

Last Thursday, Senators Hatch and Wyden and Representative Ryan introduced the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, commonly referred to as Trade Promotion Authority, or TPA. The bill provides a mechanism for Congress to establish negotiating objectives for US trade negotiators and is considered essential to concluding major agreements in the works such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). A hearing was held Tuesday by the Senate Finance Committee, and a markup is scheduled for today.

The US Constitution splits authority for entering into trade agreements between Congress and the Executive Branch. 1Article I accords the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties” and Congress the power “To regulate Commerce with foreign Nations.” TPA enables both to exercise their power in an efficient and effective manner.

For decades, US trade agreements have included provisions concerning copyright and other forms of intellectual property. Through the proposed TPA, Congress would provide, in part, that

The principal negotiating objectives of the United States regarding trade-related intellectual property are … to further promote adequate and effective protection of intellectual property rights, including through …

  • ensuring that the provisions of any trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law;
  • providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;
  • preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
  • ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;
  • providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms;
  • and preventing or eliminating government involvement in the violation of intellectual property rights, including cyber theft and piracy.

Though copyright has been the subject of international agreements for well over a century, its presence in trade fora is more recent, dating back to the 1980s. Given the increased attention to trade related issues of copyright sure to come over the next several weeks, I thought it would be helpful to sketch a very brief overview of how copyright and other intellectual property rights became a part of the trade agenda.

A brief history of US trade policy

In the US, the issue of import duties was the very first order of business taken up by the First Congress. After establishing its own rules of operation, Virginia Representative James Madison on April 8, 1789, told the other members of the House that the subject “requires our first attention.” 2Annals of Congress, House of Representatives, 1st Congress, 1st Session, pg 107 (April 8, 1789). He added that he believed Congress should pursue regulation “as free as the policy of nations will permit.”

For nearly a century and a half, tariffs were the primary instruments of trade policy. 3Ian F. Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service (2015). During that time, the concept of “free trade” began to develop further, with the help of economists such as Adam Smith, David Ricardo, and James Mill. Essentially, the policy is premised on the prediction that when barriers to trade between two countries are reduced or eliminated, producers and consumers in both countries benefit.

However, following World War I, the pendulum swung back to protectionism. The US passed the Smoot-Hawley Tariff Act in 1930, setting high tariff rates that led to retaliatory measures by major trading partners, a drop in international trade and a prolonging of the Great Depression. 4Fergusson. Within four years, the US reversed course and set on a path of trade liberalization, which it continues to this day.

Internationally, the General Agreement on Trade and Tariffs, the first multilateral forum for trade negotiations, was established in 1947. The initial focus was on tariff reductions, but over time negotiations began to consider non-tariff trade barriers. 5Fergusson.

IP and trade

Beginning in the early 1980s, both the Executive and Legislative branches began to recognize trade-related aspects of intellectual property protection.

The private sector played a key role in getting the issue on the agenda. As a task force on intellectual property within the Advisory Committee for Trade Negotiations (a group made up of private sector representatives who provided input to US trade negotiators) noted in a 1986 report

The growing economic importance of intellectual property to all industries and the inadequacies of the present IP system—both at the international and national levels—have led the U.S. private sector to seek a trade-based response, as a supplementary tool to deal with the resultant distortion of international trade flows.

After detailing several specific problems that could be addressed through a trade-based approach, the task force urged that, at this point in time, “the basic concept of a trade approach to IP must be recognized and its legitimacy accepted by the IP community.”

In 1985, a Presidential Commission on Industrial Competition called for placing a higher priority on trade policy, including “a new round of GATT negotiations to achieve some coverage for trade in services and agriculture, foreign governments targeting and tax policies, countertrade, protection of intellectual property, and nontariff barriers.” 6Report of the President’s Commission on Industrial Competitiveness, hearing before the Subcommittee on Economic Stabilization of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Ninety-ninth Congress, first session, March 5, 1985.

President Reagan gave a major policy speech that following September on trade. In it, Reagan laid out principles for his trade agenda, making specific note of intellectual property. For example, he observed, “Above all else, free trade is, by definition, fair trade. When domestic markets are closed to the exports of others, it is no longer free trade. When governments subsidize their manufacturers and farmers so that they can dump goods in other markets, it is no longer free trade. When governments permit counterfeiting or copying of American products, it is stealing our future, and it is no longer free trade.” He later explained, “I have instructed the United States Trade Representative to accelerate negotiations with any and all countries where the counterfeiting and piracy of U.S. goods has occurred to bring these practices to a quick end. And I look forward to working with the Congress to increase efforts to protect patents, copyrights, trademarks, and other intellectual property rights.”

The speech described the foundations of the Administration’s trade agenda. The Joint Economic Committee Subcommittee on Trade, Productivity and Economic Growth heard from Administration officials in March 1986 about Executive Branch efforts to address “International Piracy Involving Intellectual Property.” Alexander Good, Director General, US and Foreign Commercial Service, Department of Commerce, explained that, among these efforts, the Administration was looking at multilateral action through GATT, to “have a code across the board on patents, trademarks, copyrights, and unfair trading practices.”

Next month, the Administration released a statement on the protection of US intellectual property rights abroad. It said that foreign infringement “severely distort[s] international trade and deprive[s] innovators, creators and inventors of rewards and opportunities that are rightfully theirs.” 7Office of the United States Trade Representative, Administration Statement on the Protection of U.S. Intellectual Property Rights Abroad, April 7, 1986. It went on to note several reasons why IP protection was important not just to the US but also to its trading partners and the global economy as a whole:

  • Adequate and effective protection fosters creativity and know-how, encouraging investment in research and development and in new facilities.
  • Innovation stimulates economic growth, increases employment and improves the quality of life.
  • Technological progress is a critical aspect of US competitiveness as well as freer and fairer global trade.
  • In developing countries, improved intellectual property protection can foster domestic technologies and attract needed foreign know-how and investment.

Congress was also active during this period, with the Senate Committee on Finance and House Committee on Foreign Affairs holding hearings focusing on intellectual property rights aspects of trade during 1986. 8Intellectual Property Rights, S. Comm. Finance (May 14, 1986); Status of Intellectual Property Protection, H. Comm. on Foreign Affairs (July 31, 1986).

Proponents were successful in getting the issue on the radar of negotiators when the eighth round of GATT talks began in September 1986 in Uruguay. When they concluded in 1994, the contracting parties had negotiated the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), introducing IP rules into the multilateral trading system for the first time. TRIPs was built around several key principles, including “national treatment (treating one’s own nationals and foreigners equally), and most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO).” The Agreement establishes minimum standards of protection and enforcement for signatories to adhere to. It also makes the settlement of disputes concerning the provisions of the Agreement subject to the WTO’s dispute settlement process. 9TRIPs Article 64.

Beginning with the 1994 North American Free Trade Agreement (NAFTA), the US has also sought IP provisions through bilateral and plurilateral free trade agreements. The latest was the US-Korea Free Trade Agreement, which entered into force in 2012. The US is seeking similar provisions as it negotiates TPP. The USTR says,

The provisions that the United States is seeking – guided by the careful balance achieved in existing U.S. law – will promote an open, innovative, and technologically-advanced Asia-Pacific region, accelerating invention and creation of new products and industries across TPP countries, while at the same time ensuring outcomes that enable all TPP countries to draw on the full benefits of scientific, technological, and medical innovation, and take part in development and enjoyment of new media, and the arts.

Given their increasing importance to economic growth and innovation, copyright and other IPRs will no doubt continue to play a vital role in trade policy.

References   [ + ]

1. Article I accords the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties” and Congress the power “To regulate Commerce with foreign Nations.”
2. Annals of Congress, House of Representatives, 1st Congress, 1st Session, pg 107 (April 8, 1789).
3. Ian F. Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service (2015).
4. Fergusson.
5. Fergusson.
6. Report of the President’s Commission on Industrial Competitiveness, hearing before the Subcommittee on Economic Stabilization of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Ninety-ninth Congress, first session, March 5, 1985.
7. Office of the United States Trade Representative, Administration Statement on the Protection of U.S. Intellectual Property Rights Abroad, April 7, 1986.
8. Intellectual Property Rights, S. Comm. Finance (May 14, 1986); Status of Intellectual Property Protection, H. Comm. on Foreign Affairs (July 31, 1986).
9. TRIPs Article 64.

Hatch, Wyden and Ryan Introduce Trade Promotion Authority Legislation — “The bill establishes new trade-negotiating objectives that reflect today’s economic challenges, including measures to combat currency manipulation, and eliminate barriers to innovation and digital trade, among others. Updated provisions address government involvement in cyber theft, protect trade secrets and the negotiating objectives continue to call for trade agreements to provide a high standard of intellectual property protection. The bill also updates provisions to promote human rights, and strengthen labor and environment protection, to reflect America’s most recent trade accords.”

Warren pitches arts to music industry — On Monday, the Fair Play Fair Pay Act was introduced, which would, among other things, finally extend the sound recording public performance right to terrestrial radio. Senator Elizabeth Warren echoed the goals of that bill in an address later in the week at the annual Grammys on the Hill event, saying “The way I see it is that it is very important that Congress support music and the arts and that we do it both with good laws in terms of making sure that people are fairly compensated — that compensation is fairly divided.”

Protecting Copyright: Securing Rights and Improving the Copyright Office — From the Free State Foundation: “With this volume of copyright registrations and recordations, and the social and economic benefits associated with these processes, it is important the vital Copyright Office functions be carried out effectively and efficiently. These basic functions serve to secure copyright protection, provide constructive notice of copyright claims, and establish priority between conflicting transfers of rights.”

Library of Congress’s and Copyright Office’s IT Needs Upgrade, Says GAO — From the Authors Guild: “In its report on the Copyright Office’s information technology, the GAO stated that the Copyright Office’s mission is ‘hindered by technical and organizational challenges,’ corroborating what many have identified as a main challenge to the Office fulfilling its mission.”

Appeals Court Agrees to Review Sirius XM’s Challenge Over Pre-1972 Music — The Second Circuit appeal arises out of a Southern District of New York ruling that the public performance of pre-1972 sound recordings is protected under New York state copyright law. “SiriusXM is presenting two questions to the 2nd Circuit. First, ‘Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?’ … Second, ‘Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?'”

Creatocracy: How the Constitution Invented Hollywood Perhaps one of the last individuals you’d expect a book on copyright to come from is Elizabeth Wurtzel.

But that’s indeed what the author of Prozac Nation has done with Creatocracy: How the Constitution Invented Hollywood. Through a breezy 121 pages from Thought Catalog Books, Wurtzel provides an interesting and provocative defense of authors’ exclusive rights and commercial culture.

Creatocracy unabashedly embraces American exceptionalism, describing the country as “one big huge accident” that nevertheless “was always cool.” Wurtzel writes,

The defining characteristic of America is our fanaticism: We dream big, we think large, we create granderu. We invented Hollywood, rock ‘n’ roll, blue jeans, the Gold Rush, cable TV with thousands of channels, a military that is larger than those of the next ten combined, the shopping mall, and a store that sells nothing but socks.

Against this backdrop, Wurtzel takes us to the beginning of the American republic to look at the development of copyright. And her thesis is this: the Founders chose to encourage art, science, and knowledge through the marketplace—rather than government subsidy or patronage—and this choice has proven successful, creating a vibrant commercial culture.

In establishing at the outset that all creative people would be at the mercy of the marketplace, the Framers invented a uniquely American form of creativity, which is commercial, widely appealing, and inevitably the stuff of empires. The Constitution is the force behind Hollywood and Silicon Valley, behind rock stars and rocket scientists, behind everything we love and everything we love to hate.

Wurtzel traces the path by which the Constitution established Congress’s authority to promote art and science through copyright. I was initially skeptical when I saw she would be taking us through history—much intellectual property (IP) scholarship has trouble with history. But Wurtzel’s recount of the history is adept. At the same time, she shows a canny ability of anticipating and responding to common criticisms of IP in academia. For example, she devotes one chapter to the IP views of Thomas Jefferson, who is often put forward as an arbiter of IP minimalism. But as Wurtzel notes, Jefferson’s views were far more nuanced than such proponents allow, and regardless, he had little to do with the shaping of the federal IP power.

When not recounting us with history, Wurtzel celebrates talent and pop culture, describing the mass market of culture enabled by copyright as producing “the most commercially inventive and artistic country ever.” Peppered throughout are observations about the nature of the creative process, no doubt drawn from Wurtzel’s own experience.

It has always been difficult to be a successful creative person, because talent is rare, but the rewards were good. They had to be. Consider how boring most people are. Consider how often you sit and talk to someone and wish you could leave because he is not interesting at all. Then think about a book you can’t put down and hope will never end: The author is not even in the room and is only holding your attention with words on a page, but he has you trapped and you don’t want to ever escape. Most people, using everything they have in real life, cannot take hold of you the way a talented writer can without even being there. Talent is the ability to mesmerize people when you are nowhere near. Talent is the ability to make something that is more stunning than human presence.

Wurtzel centers in on the market as an essential element in translating such talent into great works. In chapter 13, she writes that “The greatest of the great American art forms have been done in factory settings, with profit in mind.

[S]ongs written by teams in rows of rooms in the Brill Building or in cubicles in the Motown studios are as emotionally resonant and haunting as the dark part of the night when the sky is big and there are no stars, no moon, and all is terrifying. Talented people do not need atmosphere to work. They do not need inspiration. They just need time and payment. They need to treat what they do like a job. They need to show up. Writing the Great American Novel has more in common with coal mining than it does with keeping a journal—it is hard labor, long and intense.

The commercial creativity enabled by copyright is indeed successful, both economically and culturally. And it is not all pop songs and Transformer films, because of one of the benefits that emerges from successful creative industries: the subsidization of riskier, more challenging work.

To give one example: actress Kristen Stewart is best known for her role in the blockbuster Twilight films. She most recently starred in the decidedly non-blockbuster film Clouds of Sils Maria. Glenn Kenny of Rogerebert.com says of the role:

The young actor, who catapulted to worldwide fame in the “Twilight” series, has, like her co-star Robert Pattinson, been using the clout that such stardom brings to effectively branch out as a performer. In the contemporary movie business, the transaction works both ways: big young star stretches creative muscles by signing on to challenging, filmmaker-driven projects; challenging, filmmaker-driven projects get their financing because a young star who wants to stretch his or her creative muscles has signed on to it.

It is true that patronage or government subsidy can also fund challenging and artistically relevant projects, but nothing like on the scale that the market could provide.

Creatocracy is not perfect. Wurtzel meanders from the main point at times. These diversions are meaningful, don’t get me wrong, but with such a short book, they could stand to be more tightly edited perhaps.

But overall, it is an interesting and compelling defense of copyright from a perspective not typically seen in academic or policy circles. The result is a book that should appeal especially to lay audiences. You may not necessarily agree with absolutely everything Wurtzel says (I didn’t), but it an absolute delight to hear her say it.

Is There a Fundamental Right to Intellectual Property? — Rob Merges says “yes,” beginning with John Rawls’ principles of fundamental rights. Merges argues that these principles justify property in general and intellectual property specifically. He concludes by pointing out that, consistent with his approach, the European Court of Human Rights recognizes intellectual property as a human right.

Letter from Register of Copyrights Pallante to Ranking Member Conyers — In a response to a request for views on the recent House Judiciary Committee hearing that focused on the functions and resources of the US Copyright Office, the Office writes that the nation’s long term copyright interests “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Judge Rules ‘Three’s Company’ Parody Play to Be Fair Use — A thorough court decision finding a play that critiques and subverts the characters and situations of the hit 70’s show Three’s Company not infringing. “The former has turned the latter into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

The Man Who Makes Hollywood’s Smallest Sounds — A fantastic portrait of 30 year film veteran Gregg Barbanell. “Barbanell is a Hollywood ‘Foley’ artist, a member of a small, highly-skilled group of experts who add custom sounds into television and film scenes in post-production, using a bevy of makeshift props. Named after one of film’s earliest sound pioneers, Foley is an antiquated craft—and in a digitized era of cinema, it is one of the last of the industry’s ‘low-tech’ jobs. These folks are responsible for recording nearly every footstep and prop sound in the movies—the things that you never really notice, yet bring a scene to life. It’s at once one of the most important elements in film, and the most overlooked. Unlike sound effects editors, Foley artists don’t rely on libraries of pre-recorded sounds: they perform them ‘ive,’ using creativity, intuition, and a small dose of physics.”

Nigeria: ‘Copyright piracy is a cyber security matter,’ says President Goodluck Jonathan — “President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria’s entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter.”

Google admits it has huge influence in Washington as it tries to deny having influence — The Verge reports, “Last week, a Wall Street Journal report suggested Google tampered with an FTC investigation that was looking to see if the search giant was engaging in anti-competitive practices. While the FTC ultimately decided not to bring a lawsuit against Google, reports published by the WSJ indicated the commission was deeply divided on whether it should sue — and another report exposed the close ties that Google has with the Obama administration.” And Brendan Sasso reports that this development has caught the eye of Congress in Senate to Investigate White House Role in Google’s Antitrust Victory.

Cracker’s David Lowery updates his Silicon Valley relationship status: It’s complicated (interview) — Great interview from Lowery. “‘I’m seen as a digital critic, but I don’t think that’s really fair,’ he said. ‘I’m really a critic of how the digital realm pays artists. It’s more of a labor dispute. It’s like if we were the coal miners in the coal mine. It’s not that we’re against the coal mine. We just want to be paid better.'”

An Open Letter to Garbage from photographer Pat Pope over whether the band should pay to use his photos in new book — Says Pope, “No, you don’t have my permission to use my work for free. I’m proud of my work and I think it has a value.”

Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91 — “But his central focus was intellectual property — copyright, patents and trademarks. He was the author of 48 laws in that area, 21 of them dealing with copyright. Many reflected technological advances. The landmark 1976 bill set rules governing radio, television, photocopying, tape recording, microfilming and computer storage, breaking a 15-year logjam on a subject that bored most lawmakers.”

Remapping a Broken Internet, Chris Ruen:

Putting authors at the heart of the digital economy — A new white paper from the Society of Audiovisual Authors looks at the rights and remuneration of authors in Europe. “Copyright is the moral link that connects the author to their work. It’s also their remuneration and creative financing tool. In a Europe of diverse cultures, traditions and languages, authors have fought to be able to express themselves in their own language, without being forced into exile in order to complete their projects.”

Beyond Free Trade vs. Protectionism — “In the 21st-century knowledge economy, this means agreements that allow for effective intellectual-property enforcement and prohibit new mercantilist practices (such as forced technology transfer, data-residency requirements, and standards manipulation). It also means our nation should neither be indifferent to its industrial mix nor try to preserve its existing mix indefinitely. Rather, trade policy should be a means to drive U.S. global competitiveness in the knowledge-based industries of the future. In other words, computer chips are more important than potato chips.”

How Digital Filmmaking Destroyed Screenwriting — “Cheap digital production closed the doors of distributors to low-budget projects, in a way that didn’t exist in the days of film. The internet devalued content to the point that it was no longer possible to make a profit on an independent film. The DVD-premiere market collapsed and was replaced by VOD (that provides tiny returns on film in comparison). DIY distribution via social networking has failed to create careers, simply because everyone talks and nobody listens.”

Spain: Did the “Google Tax” really change the market? — Míchel Olmedo Cuevas writes, “it seems that the Spanish experience is closer to that of Brazil, where national newspapers amounting for 90% of the traffic dropped out of Google News almost three years ago, and do not seem to be looking to make a comeback since, according to the newspapers association, only 5% of overall traffic was lost, after 135 out of 154 newspapers decided to leave the news aggregation service provided by Google.”

Google v. Oracle: The Curse of Being Popular? — Thomas Young has a look at the “lock in” argument raised by Google in its petition to have the Supreme Court review a decision finding it liable for copying Oracle’s Java software. “The (perhaps unintended) thrust of Google’s argument is that downstream factors, such as how consumers interacted with the work, could impact whether copyright protection ever attached to the work in the first place. This notion would carry a steep price for copyright holders; namely, that user considerations, such as popularity or familiarity, could eventually invalidate their copyright interests and force their works into commons.”

Room for Debate: Robin Thicke, Pharrell Williams and a Blurry Copyright Law? — The Blurred Lines verdict continues to provoke discussion. This week, the New York Times published a series of short articles from copyright experts looking at the case from a variety of perspectives.

How the jury in the ‘Blurred Lines’ case was misled — And copyright luminary Wendy Gordon has her take on the verdict. She argues that the instructions provided to the jury did not adequately explain the law and wrongly supported the notion that any copying is infringement.

World IP Day 2015 – Get up, stand up. For music. — Mark your calendars, World IP Day is on April 26, and this year, the theme is music. “What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use” — This week, a number of visual arts organizations, representing thousands of professional creators, published a letter criticizing a recently published code of best practices for failing to collect input from a major segment of the visual arts community and coming to the unfortunate conclusion that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.”

On March 9, a group of 31 advocacy groups and 13 academics sent a letter to members of the 114th Congress, “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” (which was a response to a previous letter from over 60 groups and academics calling for continued support of copyright protections). The letter called on Congress to “seek the appropriate balance in copyright law to unlock the innovative and creative spirit of all people to their fullest potential,” which sounds good in general. However, the specific points of the letter reveal that the signers embrace an impoverished view of copyright that would result, ultimately, in an imbalance.

One of the points made by the letter is as follows:

The U.S. Constitution grants Congress the right to create copyright laws “to promote the Progress of Science and useful Arts.” Congress’ power to enact copyright regulation is a limited power under the U.S. Constitution. In the words of the Supreme Court, “The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.” We strive to uphold the honored, privileged legal place granted to those who discover and create.

This particular strain of thought, establishing a dichotomy between an author’s reward and the promotion of progress, with the latter trumping the former, can be traced back to the Court’s earlier decision in Fox Film v. Doyal 1286 US 123 (1932). (and is based on a misreading of that opinion). In US v. Paramount Pictures, the Court cited to Fox Film when it said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” 2334 US 131, 158 (1948).

The letter fails to mention that the Supreme Court has expressly rejected this characterization of copyright.

Justice Stevens quotes Paramount in his dissent in Eldred v. Ashcroft, drawing a sharp rebuke from the majority, which said

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” 3537 US 186, 212 n.18 (2003).

The distinction between the two views is subtle but important. The view of balance expressed in the letter sees the rights of creators and copyright owners on one side of a scale and the rights of users and the public on the other. 4See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.” In one sense, the view reveals an anxiety over property rights. It embraces a view of property that sees individual rights as separate from the public interest, with individual rights protected as property only to the extent they do not interfere with the public interest. In other words, individual rights are only begrudgingly tolerated.

But the second view—the one embraced by the Supreme Court in Eldred—recognizes that prioritization of property rights not only does not come at the expense of the public interest but is in fact essential to promotion of the public interest.

The Public Interest of Property Rights in History

This concept has been recognized historically. In Wealth of Nations, Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.” 5Book I, chap. 2, para. 2. In one of his most cited passages, Smith observes that the public interest emerges from self-interest. “By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. 6Book IV, chap. 2, para. 9. The promotion of the public interest is thus inherent to the pursuit of self-interest and not something solely external to it.

James Madison explicitly recalled Smith when discussing copyright. “The public good fully coincides,” he said of the Copyright Clause in the Federalist Papers, “with the claims of individuals.” 7Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature. This is remarkable in that not only was the coincidence of public interest and individual property rights recognized since the founding of the US but that that recognition extended to intellectual property.

Turning back to Eldred, the majority reiterates this point, this time responding to a dissent by Justice Breyer:

JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones. 8537 US 186, 212 n.18 (2003).

Conceptual and Normative Role of Property and the Public Interest

More recently, scholarship has described how property rights serve public values both conceptually and normatively. In Property’s Ends: The Publicness of Private Law Values, Cornell Law professor Gregory Alexander covers both grounds. Conceptually, Alexander argues what Smith, Madison, and the Supreme Court has observed: that the private and public values of property “cohere rather than conflict.” Normatively, Alexander proceeds from the claim that the normative foundation of private property is human flourishing, which, “understood as morally pluralistic, includes both private and public values.” Thus, “the relationship between private property and public values should be seen as symbiotic rather than antagonistic.” Alexander concludes that “any account of public and private values that depicts them as categorically separate is grossly misleading. One important consequence of this insight is that many legal disputes that appear to pose a conflict between the private and public spheres or that seemingly require the involvement of public law can and should, in fact, be resolved on the basis of private law—the law of property—alone.”

In The Right to Include, Notre Dame Law professor Daniel Kelly provides an additional, seemingly counter-intuitive, insight to this narrative. Though the right to exclude is central to property, it does not, as many contend, lead to individualism and exclusion at the expense of public values. In fact, property promotes inclusion through a variety of mechanisms, including contracts and co-ownership. Without the protection of property and availability of inclusion mechanisms, owners of resources face opportunism by others, leading to less than optimal inclusion. To put it another way, resource owners won’t fully use their property in socially valuable ways without secure property rights and legal mechanisms for inclusion because they face the risk of being taken advantage of by others. Kelly argues that “By providing owners with a range of options by which to include others, these forms help to ensure that an owner’s private incentive to include converges with the socially optimal level of inclusion.” Says Kelly,

Some owners may misuse their property by imposing social costs on others, isolating themselves from others, or discriminating against others. But many owners decide to use their property not only as a “wall” to exclude others but also as a “gate” to include their neighbors, friends and family, colleagues and customers, and even strangers who need help. If so, property is capable of promoting human sociability, not merely atomistic individualism.

Privacy and Copyright

In addition to property, it is worth pointing out similar ideas in the context of privacy, since privacy shares historical and philosophical foundations with copyright. 9See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”). Both provide an individual with some control over an intangible thing that originates from their self. Intuitively (and ostensibly) privacy would seem to protect a private right, shielding the individual from societal intrusions. However, noted privacy scholar Daniel Solove has argued that privacy is not necessarily “an individualistic right,” and points to others who have contended that “privacy harms affect the nature of society and impede individual activities that contribute to the greater social good.” 10A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006). Elsewhere, Solove writes:

Society involves a great deal of friction, and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocating, and it might not be a place in which most would want to live. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating the kinds of free zones for individuals to flourish. 11Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).

Promoting the Progress

The rights of creators and the public interest are not separate concepts that require balancing. Rather, they coincide through copyright. By securing the economic and moral rights of expressive works, authors will maximize the value of their creative labors, and companies will maximize their investments, creating and disseminating works which promote the progress of art, science, and knowledge. That’s not to say there is no need for limitations and exceptions to copyright in certain situations—there certainly is (as with any property right). But it is important to start from the correct baseline by recognizing the inherent public values of property and copyright.

References   [ + ]

1. 286 US 123 (1932).
2. 334 US 131, 158 (1948).
3. 537 US 186, 212 n.18 (2003).
4. See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.”
5. Book I, chap. 2, para. 2.
6. Book IV, chap. 2, para. 9.
7. Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature.
8. 537 US 186, 212 n.18 (2003).
9. See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”).
10. A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006).
11. Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).

Harvey Weinsten, Matthew Weiner, Kurt Sutter Urge Congress to Support Strong Copyright System — They and over 1500 other creators and artists of all types sent a letter to Congress this week saying, in part, “Our copyright system is not perfect but, like democracy, it is better than the alternatives. It works. We urge Congress to resist attempts to erode the right of creatives to determine when and how they share their works in the global marketplace.”

Free trade benefits businesses here in Tennessee — David Macias, president of indie musician management, marketing, and distribution company Thirty Tigers, pens this op-ed in The Tennessean on the need to pass trade promotion authority and finalize negotiations on free trade agreements. Says Macias, “We have recently expanded our services to all of Europe and Australia, and the ease of which we can gain access to those markets, thanks to free trade agreements, helps not only my business but the artists who we represent. When my business grows, I employ more American workers. When my artists are able to grow their careers and tour in those markets, they employ guitar techs and road managers who live and pay taxes in Nashville.”

Turning a Profit From Music Mashups — More evidence that the current legal framework for remixes works. “Dubset Media Inc. has developed technology to track how much of each song is used in any given DJ-made track or mix. It can then calculate royalties owed to artists like Lady Gaga or Jay Z whose music was sampled. The New York-based startup is in discussions with the major record labels—Vivendi SA’s Universal Music Group, Sony Corp.’s Sony Music Entertainment and Access Industries’ Warner Music Group—to license music that DJs have mixed. Such deals could pave the way for Dubset to distribute such mixes to streaming services such as Spotify.”

ICLE White Paper: Broad fair use exceptions could discourage innovation worldwide — This week, the International Center for Law & Economics released a white paper arguing that “if broad fair use exceptions are infused into trade agreements they could increase piracy and discourage artistic creation and innovation — especially in nations without a strong legal tradition implementing such provisions.”

The Lines of Copyright Infringement Have Always Been Blurred — We’ve heard a lot about the Blurred Lines verdict this week. Here, Rick Sanders makes a number of important points about the trial and its outcome, many of which have been overlooked by the deluge of superficial analyses found elsewhere.

Viacom Sues Operators of Online Channel Playing “Classic” Nickelodeon — The site “offers free 24/7 streaming plus a premium on-demand service with a tab of $35.99 for a year” of numerous Nickelodeon shows, but its website claims it can do so legally under fair use. Which means if you support Viacom, you must hate fair use.

These Charts Show Why The US Government Should Stop Setting Prices For Songs and Recordings — Music is unique among copyright subject matter in that the rates for many of its most popular uses are regulated by the government in some fashion. The Trichordist illustrates what happens as a result.

Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway — A great interview with copyright giant Paul Goldstein. “… it would be a serious mistake for policy makers (and I include the courts) to reflexively reach for a new exemption or an expanded fair use any time copyright appears to stand in the way of the roll out of some new technology. It would be a mistake because the characteristic impediment in all of these cases is not copyright, but the transaction costs associated with securing licenses under copyright.”

Who’s that girl? The curious case of Leah Palmer — “Ruth recently discovered that for the past three years somebody has been routinely lifting photographs of her, her family and friends from social networks, and setting up a network of fake media profiles of them – which all communicate with each other.” One of her only means of recourse is asserting her copyright interest in the photos to have them taken down, a reminder that copyright is not solely for commercial exploitation.

Annual USTR Notorious Markets Report Points Fingers, Includes Domain Registrars For First Time — “The fifth annual Office of the United States Trade Representative review of ‘notorious’ intellectual property infringing markets has been released, pointing out the world’s biggest problem commercial-scale markets. And for the first time, the report takes aim at internet domain name registrars.”