Zechariah Chafee, a godfather of 20th century legal philosophy, wrote an influential article on copyright law in the early twentieth century.1 At that time, technology was exploding: for the first time in history, it was not only possible to record sound and images, but to transmit them across vast distances instantaneously.
The law of copyright struggled to keep up with this technological advancement. In the 1950s, Congress began a comprehensive revision process. As it stretched into its second decade, former U.S. Register of Copyrights Barbara Ringer shared her thoughts on the process in her 1974 essay, The Demonology of Copyright (PDF). Ringer called back to Chafee’s article, adding her own lessons won from experience about what copyright law should look like:
In his 1945 article, Chafee suggested six ideals to which a copyright statute should aspire: 1) complete coverage ; 2) unified protection, enabling the author to control all the channels through which the work reaches the public; 3) international protection, with no discrimination against foreign authors ; 4) protection that does not go substantially beyond the purposes it seeks to serve; 5) protection that is not so broad as to stifle independent creation by others ; and 6) legal rules that are convenient to handle.
There is a seventh goal, which Chafee could not have been as aware of in 1945 as he would be today, and which in fact may be the most important copyright goal of all. It can he stated very simply: a substantial increase in the rights of the author, considered not as a copyright owner but as a separate creative individual. It involves recognition that committees don’t create works and corporations don’t create works, and machines don’t create works. If, for the sake of convenience of companies or societies or governments, the copyright law forces individual authors back into a collective straitjacket or makes them into human writing machines, it will indeed have become a tool of the devil.
A case study for consensus building
Today, the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled, “A Case Study for Consensus Building: The Copyright Principles Project.” The hearing is the first in a planned series that will take place over the next several months aimed at a comprehensive review of U.S. copyright law.
Testifying at the hearing will be Copyright Principles Project convenor Pamela Samuelson (University of California at Berkeley Law School), as well as Project participants Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (University of North Carolina Law School), Daniel Gervais (Vanderbilt Law School Intellectual Property Program), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft).
The goal of the hearing appears to be on setting the tone for how Congress discusses copyright issues in a post-SOPA world, and it looks as though it will do so in two ways. First, it will begin by identifying overarching principles that should guide copyright law. And second, it will look specifically at the Copyright Principles Project as a case study for building consensus in an area of law that can sometimes generate a good deal of contention.
The Copyright Principles Project (PDF of report) began in 2007 with participants who included copyright law scholars, private practioners, and lawyers from broader industry firms. It concluded with a broad set of principles as well as a number of recommendations for bringing copyright law more in line with those principles. At the highest level, the Project participants wrote:
A well-functioning copyright law carefully balances the interests of the public in access to expressive works and the sound advancement of knowledge and technology, on the one hand, with the interests of copyright owners in being compensated for uses of their works and deterring infringers from making market-harmful appropriations of their works, on the other. Copyright law should enable the formation of well-functioning markets for creative and informative works that yield benefits for all stakeholders.
Agreeing on principles
The Copyright Principles Project suggests that consensus in the copyright realm is possible. And by leading with the Project as a case study in building consensus, the Subcommittee is sending a signal about how important consensus will be to the future of copyright policy. The Project participants testifying at the hearing should be able to provide the Subcommittee with valuable insights into how it can build its own consensus as it seeks to review copyright law to find out how well it is working.
Many of the Project’s broader points echo what Chafee wrote and Ringer endorsed half a century ago. At the same time, other contemporary scholars have offered their own principles to guide policy makers in ensuring that copyright law works for all.
In Justifying Intellectual Property, legal scholar Robert Merges argues in favor of foundational pluralism — a fancy way of saying that while we may disagree about the deeper principles of copyright (Is it utilitarian? Is it a natural right?) we can reach consensus on midlevel principles that guide how the law is shaped and applied.
Merges then offers his own principles that complement those identified in the Copyright Principles Project. He specifically identifies four midlevel principles in his theory of IP law: (1) efficiency (in the economic sense), (2) nonremoval (“information and ideas in the public domain must not be taken away or privatized”), (3) proportionality (“the scope of a property right ought to be commensurate with the magnitude of the contribution underlying the right”), and (4) dignity (“works covered by IP rights reflect and embody personal attributes of individual creators, therefore justifying special protection for some aspects of creative works”). You can see how readily these principles overlap and augment those other sets already discussed.
Keeping the Creator in Copyright Review
Of course, just as Ringer was concerned forty years ago that individual creators were in danger of being left behind, there is concern that the Copyright Principles Project had not heard from these voices. While it’s true that among the Project participants were private practitioners who have experience dealing with creators when something goes wrong, their perspective only tells a small part of the story of how copyright impacts creators.
In its positive sense, copyright provides the framework that encourages the creation and commercialization of expressive works that advance society at its highest level. To ask whether copyright is working, then, depends not only on whether it provides appropriate judicial remedies for infringement, but whether it is effective on a day-to-day basis. To answer that question, it is imperative that Congress has input from those in the trenches. Creators are engaged in copyright law decisions every day, both when they are creating — where is the line between permitted copying and misappropriation? What is fair use? — and when they are disseminating their works to the public — whether on their own or through various intermediaries.
U.S. Register of Copyrights Maria Pallante noted in her remarks about the Next Great Copyright Act (PDF) that “readability” should also be among the goals of any copyright law discussion. As more and more are affected by copyright laws, it’s important that one should not need “an army of lawyers to understand the basic precepts of the law.” The ideal copyright law will reflect artist and creator concerns in a clear and understandable way. It should not only spell out their rights, but provide meaningful protection of those rights — not only against infringers but also against those who would take advantage of them.
David Lowery spoke about this in a recent Politico op-ed:
Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.
Any number of creators (including me) would have been glad to hash out ideas for reforms. Ideas we get from on-the-ground practical experience. Experience you won’t find in the ivory towers of academia or corporate corner offices.
As technology makes it easier for all of us to participate in our culture as creators, it is even more important than ever to heed Ringer’s admonition that artists and authors are recognized not only as copyright holders but as separate individual creators. Any review of copyright law should keep that principle in mind above all. It is my hope that the Subcommittee uses the Copyright Principles Project as the title of the hearing suggests: as a case study for building its own consensus de novo — one that includes creators front and center — for reviewing copyright.