Transparency in Copyright: Needed Now More Than Ever

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We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

As many who follow technology policy and copyright probably already know, we are in the middle of several tremendously important policy debates in copyright law. The Library of Congress is considering proposals that would allow people to break digital locks for certain uses. The U.S. Trade Representative is negotiating a huge free trade agreement, including a copyright chapter, that may get “fast-track” approval from Congress. The Copyright Royalty Board continues to collect data and set rates for statutory licenses used by all sorts of companies that make and distribute music. And, of course, Congress has been conducting hearings and considering proposals for reforming our federal copyright law.

Each of these proceedings (among many others) is a big deal. The decisions the government makes on all of these issues will shape the development of the technology and platforms we all use to communicate, conduct business, and create our own works.

These decisions, in short, are too important to make in secrecy. That’s why, as part of Copyright Week, we are taking time to remember why transparency creates the foundation for good copyright policy and gives the public an informed voice on the laws and rules that will shape the tools and technology they use every day.

It’s also important to know what we’re talking about when we demand transparency in copyright policy-making. For example, the U.S. Trade Representative often applauds itself for its own transparency when it allows the public to submit comments on international trade and policy-making. That is not transparency. Transparency is not just letting information come in from the public. Transparency is giving the public information about the government’s positions, decisions, and actions. Viewed in this light, it’s clear the U.S. Trade Representative actually gives the public very little transparency at all, which has outraged public interest representatives and members of Congress alike. And without that transparency, the public can give as much input as it likes but will never really know whether their arguments are persuasive or whether the agency feels accountable to the public it is charged with representing.

So, we’ve seen what can go wrong when the government sets copyright policy without letting the public know what’s going on. When we think about the far-reaching copyright policies being set in other parts of the government--up to and including a potential Congressional rewrite of copyright law--it’s clear those policies must be set transparently if we want a balanced, forward-looking copyright law that benefits everyone.

As we saw in the nationwide protests against the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA), letting the public see policy proposals and speak out for or against them can have a huge impact on what our copyright law ultimately looks like. More recently, news of the MPAA’s renewed efforts to achieve the same SOPA-like ends through less-transparent means is not encouraging. And if decision-makers shine light on the policy-making process when laws are being formed, we can ideally avoid even getting to the point where millions of people have to protest misguided legislation to stop it in its tracks.

If the government both gives information to the public and receives information from it starting at the beginning of the policymaking process, we can work to develop a better copyright system together.

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