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Parts of the debate are still missing from the discussion of copyright reform in Congress, but we’re starting to fill in the gaps. This includes the need to look at individual artists, creators, and users instead of the intermediaries and big incumbents.
Yesterday, I briefly summarized some of the major themes coming from the witnesses in the House IP Subcommittee’s copyright reform hearing. Since the witnesses covered those same points in their oral testimony, I thought I’d devote this post to some of the themes that emerged from the other side of the room—from the representatives in their statements and questions.
Content or Tech? Tech or Content?
I don’t think I’d be exaggerating if I said that most of the members in attendance began their statements with something like this:
“Copyright law is important because we need to make sure to protect artists and creators, and ensure they keep making wonderful things that help drive the economy. Of course, we need to do this while making sure that the law allows technological innovation that is also an important part of our lives and our economy.”
I’m paraphrasing, but I’m still pretty certain that the above could be tacked on to the beginning of any Congressional statement about copyright today, or in the near future. And that’s frustrating.
It’s not wrong, per se, it’s just a woefully incomplete picture of what copyright is about, distilled only to the biggest, most visible players in the political side of the copyright debate. And while it’s natural that members of Congress would focus on the biggest, most visible players (a cynic would accuse them of caring only about potential donations; someone less cynical would say they’re rightly focused upon large employers and jobs), but in doing so, they ignore the two sets of people who copyright was explicitly designed to help.
What about Artists and Audiences?
One of the things that Daniel Gervais pointed out in the Q and A was that, taken at a very abstract level, copyright is actually simple. As he put it, it’s basically about artists and the public. After that, there’s the question of getting the works of art to the public.
The funny thing about copyright law is that for most of the recent past, it’s been concerned primarily with that bit in the middle—the intermediaries—whether they’re record labels or ISPs. But the Constitution is concerned first about the effects on the public—the progress of science and the useful arts—and with incentivizing authors to further that end. What happens in the middle is just a means to those ends.
Some of the questions asked by the members went to at least part of this—they asked about how to ensure that copyright law looks out for individual artists.
But the question remains as to how those necessarily disparate voices can be represented in a forum like Congress or at a roundtable of a few academics.
Certainly trade associations funded by the major conglomerates won’t represent the vast majority of individual creators; and cherry-picking an author here and a singer-songwriter there can’t give you more than a few isolated anecdotes—data points, to be sure, but certainly not enough to paint a reliable picture of the landscape.
Some groups have tried to fill in this picture—the Future of Music Coalition put together a project to study how musicians are making their money today—their results would seem to show that a lot of assumptions about art and artists that drive lawmakers’ decisions aren’t as true today as they may have been in 1976—if they ever were.
It’s therefore important that policymakers keep in mind the vast majority of creators who don’t have contracts with labels, who may not be members of guilds or societies, and who may be more involved with touring or promoting their new album than placing op-eds in major newspapers or drafting comments to federal administrative agencies.
And the other side of the copyright bargain must likewise be accounted for. Just as publishers and labels aren’t the same as authors and musicians, consumer electronics companies aren’t consumers. This often gets lost when people draw the battle lines as being between Silicon Valley and Hollywood.
Individual users, for instance, are unlikely to have the ability to defend against lawsuits threatening massive statutory damages for even small alleged offenses, and are more likely to fall victim to copyright trolls, who abuse the copyrights laws to extort “settlement” payments from masses of users.
Individual users are also the ones who operate under a cloud of legal uncertainty about whether their in-home activities, like moving media from one device to another, can get them in trouble. A solution that works for tech companies, like an intermediary safe harbor or limits on secondary liability, leave the consumers of copyrighted works on the hook.
It’s also important to remember that “the public” isn’t some abstraction of consumerism—it includes consumers, sure—the people who are the readers of authors, the listeners of musicians, the players of games, and the viewers of movies and TV shows.
But an outdated copyright system that finds harmless uses illegal ends up treating paying customers as if they were “pirates.” While many of the members indicated they didn’t believe that “everything should be free,” it’s hard to actually find anyone seriously proposing that.
Plus, consumers are only one part of the public. The same people who are buying creative works are also creating with them themselves, not just remixing, but learning to play music by singing their favorite songs for the benefit of their friends, whether in a dorm room or on YouTube. Those creators in the making and remaking creators are part of the public, too.
How Are They Affected?
And the scope of artists and the scope of the public leads to another theme present throughout the hearing—the anxiety over what happens when copyright law changes. A number of members expressed concern about “weakening” or “watering down” copyright law; others more generally were concerned about changing it more generally. A bit of the back-and-forth between Baumgarten and the other witnesses was about whether copyright law needed “fixing,” or just “amending.”
The concern is certainly reasonable. It’s become a cliché to call copyright law something like “the engine of the creative economy” or similar such things. And people whose livelihoods depend on that machine running are naturally anxious about tinkering with it.
But the need for that tinkering is becoming increasingly clear. Maybe not to those around whom the system was designed those several decades ago, but for all of the people who weren’t, or couldn’t be, at the table in 1976. The fact that it still works, in some cases, for some people (even, or especially, the well-represented and powerful ones) isn’t a justification to fossilize the system as it is. That engine is doing anything but running smoothly for small users, small artists, and small tech companies.
The Copyright Act is a law, not a symbol. It exists for a particular purpose. Altering it to make it better fit that purpose isn’t attacking some sacred object or inviolable principle. Would anyone weep if the mishmash that is section 110 were streamlined? I doubt it somehow.
So changes are needed. And the changes proposed by groups like PK and noted by the Copyright Principles Project seek to make some of those changes—and none of them propose doing away with copyright, or making everything free of charge.
As to how to make those reasonable changes without harming legitimate interests, there are a number of modest changes whose effects would seem not to upset the applecart too much. As for more ambitious proposals, well, there’s the need to gather more facts.
Getting to Answers
This leads to the question of how to measure the effects of even the copyright law we have today. As both the Government Accountability Office and, more recently, the National Academies have noted, the empirical data on the ground is quite thin, and a lot of the studies that are out there come from interested groups.
Which is why it’s troubling to see people trying to downplay the need for good data on the economic effects of the different aspects of our copyright system. People begin questioning whether or not the authors of the NAS call for more information are biased, or ask whether we should even really care about the economics of copyright, when there’s intangible, non-economic justifications for the law.
Which is a strange thing to ask for, if you’re the one who has been touting the economic boon that copyright law brings to the country. If that’s so, how can it possibly hurt to discover which parts of the law are pulling their weight and which are not?
The Constitutional justification for copyright is certainly a utilitarian one, and beyond that, even if there are deontological reasons for copyright, well, there are practical ones, too. What harm does it do to measure those? And if an uneconomical part of copyright is near and dear to creators’ hearts, surely no one loves section 114, as it’s written, in their bones.
Chairman Goodlatte noted the need for answers to the empirical questions about copyright at the beginning of the hearing. In fact, he framed the discussion in terms of three particular questions:
- What metrics do we use to measure the success or failure of copyright law?
- How do we measure the effect of copyright on the economy?
- How do we ensure that all stakeholders, including individual artists, are included in policy discussions on copyright?
These are the right questions to be asking as we move forward. A lot of assumptions about markets, technology, and artists have been at the foundation of our laws today. Making sure that we have the information to move forward, and account for artists and their audiences in the future, is critically important and a necessary part of necessary reform.