The witness list for upcoming copyright hearings raise significant questions about who the subcommittee is really listening to.
The
House IP Subcommittee recently announced
its plans to hold its next two hearings in its series on copyright
reform. The first, to be held this Thursday, July 25th, is entitled “Innovation
in America: the Role of Copyrights.” The next, to be held next
Thursday, August 1, is as-yet untitled, but will apparently be about the role
of technology in innovation.
This
announcement raises a few questions for the upcoming hearings. Why are they
being structured this way? What, exactly, does the subcommittee hope to learn
from the witnesses in them? And how will that information contribute to the
cause of copyright reform?
Mischaracterizing
Copyright and its Interests
One
of the first questions about the pair of hearings is: why are they organized
this way? The implication has been that this week’s hearing is meant to
showcase the contributions of creators like authors, musicians, filmmakers, and
others to innovation—a chance to celebrate the creative efforts of America. The
week after, it seems, technologists get their turn.
But
this framing has two big potential problems baked into it. The first is the
idea that authors, musicians, and filmmakers somehow embody
“copyright” or the concept of copyright law. That’s just not the case.
While their interests are certainly a major part of the law, they don’t
represent copyright law any more than criminals represent criminal law, or dead
people represent trusts and estates. Copyright law exists to balance the
interests of authors with the interests of the general public, and it affects
absolutely everyone. Assuming that creators are the only people it’s meant to
consider does it a grave disservice.
But
the witness list we have for this next hearing displays a more serious problem:
there’s a dearth of actual artists being represented. Even though copyright law
is meant to benefit the public first, and artists second, it is these two
groups—authors and their audiences—who the law is supposed to care about. It’s
created to benefit them, not the people who act as middlemen between them.
And
yet constantly, the people who come to Washington and purport to speak for
artists represent instead the people who buy rights from artists, or market and
merchandise their works. It’s the record labels, broadcasters, and publishers
who keep showing up, not the composers, performers, and authors. Or it’s even
people who buy works and copyrights from artists and then sell them to the
public. Not that there’s anything wrong with that-reselling things (including
copyrights and licenses) is part of the business of copyrights. It’s just that
that’s a means to an end, not an end in itself.
And when people do show up on actual artists’ behalf, it
will be large trade associations speaking, not creators themselves. Creators of
copyrighted works aren’t just the people who have their own trade associations
and lobbyists; they’re anyone who makes creative works. That includes people
ranging from individual bloggers and podcasters to video bloggers with millions of subscribers, producers of elaborate
web video content and singer-songwriters with hundreds of thousands of fans. Are their voices going to be present in this
debate? Or will we be hearing from the same industry lobbyists?
False
Dichotomy
But
there’s another hearing next week, and that apparently is going to feature
witnesses talking about the contributions of technology to innovation. So maybe we’re getting a balanced pair
of panels—one featuring (some) creators, the other featuring technologists.
Isn’t that balance what we’re after?
Actually,
no, it’s not. There’s a persistent tendency, particularly in Washington, to
look at the issue of copyright reform as an issue of Entertainment vs. Tech—one
industry against another. It’s particularly easy for Congress to think of
things this way because that’s who lobbies them on these issues the most—it’s
big industry groups who have the money to hire lobbyists to visit Congress and
bend their ears on a regular basis about their particular perspective on these
issues.
But
that leaves out the vast majority of us whose interests aren’t represented
either by the entertainment industry or the technology industry. Not everyone
makes or sells music; not everyone makes or sells online services. But everyone
reads, listens to music, and uses the Internet. All of us, as readers,
listeners, and viewers, are affected by copyright law, and it is the interests
of audiences that must be represented in discussions on how to change it. So
far, that’s not happening here.
Defaulting
to the Status Quo
So what can we expect from the hearing?
Without seeing the witnesses’ testimony yet, it’s hard to say. But if the
objective of this week’s hearing is to promote all the wonderful things that
these witnesses do right now; and next week’s hearing is the chance for tech
companies to brag about their achievements, then what does this mean for
reforming copyright law? If we’re supposed to have a love-fest about the state
of their respective parts of their industries, isn’t the implication that
everything is fine and dandy? Because we know it’s not.
As much as people can accomplish with
our current laws and business practices, it’s never entirely clear when people
are succeeding because of a particular provision, or despite it. Would artists
make more and better works if we had a copyright term of life plus 71 years,
instead of life plus 70? Would we face an impoverished artistic landscape if we
cut that to life plus 69 years, or 50?
The status quo that we face has been
the result of lobbying on the part of big entertainment companies, with inputs
coming from other industries as the conversation moved forward through the
decades. Broadcasters, cable companies, then ISPs, then big Internet companies
have, in more recent years, exercised their influence on the process. But those
voices aren’t the voices of audiences, of users, of educators and others, who
are often the ones harmed most by the shortcomings of the status quo. It’s
certainly important to listen to entertainment companies and technology
companies in the copyright reform process. But it’s downright essential to
listen to the public.
Original image by Flickr user (and our friend!) tvol.