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Almost all of us accept the proposition that copyright protection encourages creativity. But how much of this protection is appropriate? How long should it last? What sources of data can we look to to answer these questions? In the copyright context data about these and many other questions is sorely lacking and law and policy is made in its absence. For instance, in 1998 Congress extended copyright term from life of the author plus 50 years to life of the author plus 70 years based on assertions of certain rights holders (page 4) that longer terms would provide them with greater incentives to create. Yet, there was no evaluation of the effect this long term would have on many creative communities that use pre-existing works. Many, including PK, posit that these communities are adversely impacted by long terms.
Like copyright terms, other areas of copyright law have been designed without empirical analysis and the effects of these policies on innovation have largely been ignored. Now the National Academy of Sciences (NAS) is proposing to study the impact of copyright policy on innovation. A Committee set up for this purpose held a hearing this past Thursday and Friday asking various stakeholders to suggest an appropriate research agenda for further study.
Public Knowledge’s statement is available here. In our statement we explained that copyright policy could benefit from further research in the following areas: the effects of long copyright terms; the effects of digital locks on user’s ability to legally use works they own; the effects of contracts and digital locks on user’s ability to lend/sell their copies of copyrighted works such as e-books, software, and music; the effect of statutory damages on innovators and follow on creators; and the costs imposed on ISPs and consumers of technology mandates such as Internet filtering.
A number of presenters on Friday made similar proposals. Here are the most interesting ideas from the NAS hearing:
1. Re-evaluate the length of copyright protection
This was primarily PK’s proposal. The current term of life plus 70 is too long in the case of a majority of copyrighted works many of which lose their commercial life and go out of circulation much before that. For instance, a piece of recorded music may only be popular for ten years. Yet, the long copyright term combined with high statutory damages prevent these works from being used by anybody other than the copyright owner. Culturally, historically, and socially important works become obscure. An empirical study of the proper term of copyright would help generate a better understanding of appropriate terms.
2. How high should statutory damages be?
The current statutory damages regime has produced extremely high damage awards in many cases. For example, MP3.com could potentially have had to pay $118 million in statutory damages for designing a service that allowed users who had purchased their own CDs to access the same music via the Internet. These huge awards would chill innovation. The actual extent of this chilling effect can only be known by talking to innovators who did not bring products to market, or venture capitalists who refused to fund a service that relied on fair use. PK, Prof. Peter Jaszi of American University Washington College of Law, and Prof. Michael Carrier of Rutgers University Camden School of Law suggested that the Committee study this issue further.
3. Reinstitute copyright formalities
Before 1978, when the current copyright statute became effective, owners had to register their works, affix notices to them, and deposit copies of their works with the Copyright Office to claim a copyright. In addition, they had to renew their registration after the first 28 years. While the specific workings of this system may have been burdensome on copyright owners, it also limited the number of copyrighted owners to those who were actually interested in commercially exploiting their works. Thus, the dangers and uncertainties associated with using many works were limited. Many at the panel, including, most prominently, Cary Sherman from the Recording Industry Association of America (RIAA), suggested a return to some of these formalities.
4. Open access
Open access refers to free access to results of scientific research, including publicly funded research. Because scientific research provides valuable input to further research and also providers a rich source of knowledge to the public, many have called for greater use of open access publishing. Academics during yesterday’s presentation called upon the Committee to consider and study the importance of open access.
5. Bringing the first sale doctrine to the digital era
The first sale doctrine gives a person who owns a particular copy of a work, such as a book or a DVD, a right to lend that copy or resell it. This valuable right has allowed libraries and used book shops to flourish. But the ability to use this right in the digital environment is gradually being eroded. Copyright owners slap licenses onto digital products that purport to treat sales of these articles as mere licenses and therefore escape application of the first sale doctrine. We have written before about the dangers of the erosion of the first sale doctrine. At the hearing, PK and others called for a re-examination of the state of the doctrine and means to preserve it in the digital era.
6. Costs and effectiveness of ISP liability regimes
There have been suggestions that Internet Service Providers (ISPs) should employ technological means, such as content filtering, to contain infringement occurring on their networks. At the hearing Fritz Attaway, representing the Motion Picture Association of America (MPAA), seemed to repeat this suggestion by calling for changes in the law to encourage ISPs to contribute to copyright enforcement. Yet, the financial, social, and cultural costs of such a system have not been studied. An estimation of these costs, together with a systematic study of how such mechanisms might work would facilitate better-informed policy making. A number of commenters including PK, and Prof. Mark MacCarthy called for such studies.
Of course all the presenters did not call for a reexamination of various aspects of the copyright system. Content owners, like the MPAA, RIAA, Business Software Alliance, and publishers such as the American Chemicals Society and the American Geophysical Union claimed that all was fine with the current system and that if any thing, there needed to be more stringent penalties for copyright infringement.
The hearing at the National Academies was a great opportunity to influence topics for research in many important areas of copyright policy, where empirical research is sorely lacking. A properly crafted report for a research agenda would be a great first step towards getting to that data. That is why we are eagerly looking forward to the recommendations of the Committee. We will keep you updated as we hear more about the Committee’s work.