RSC Policy Brief: Three Myths about Copyright Law and Where to Start to Fix It

Republican Study Committee ^ | November 16, 2012 | Republican Study Committee

[Utmost Certainty]

Outline/Summary:

This paper will analyze current US Copyright Law by examining three myths on copyright law and possible reforms to copyright law that will lead to more economic development for the private sector and to a copyright law that is more firmly based upon constitutional principles.

1. The purpose of copyright is to compensate the creator of the content:
It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not. The Constitution’s clause on Copyright and patents states:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
(Article I, Section 8, Clause 8)

Thus, according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights.
…

2. Copyright is free market capitalism at work:
Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.
…

3. The current copyright legal regime leads to the greatest innovation and productivity:
There is surely an argument in favor of copyright, and it is the argument that our Founding Fathers were familiar with. While the size and scope of current copyright violations are vastly disproportionate to anything in previous history, in the 18th century our Founding Fathers were familiar with copyright violation. In fact Great Britain was quite angry at what was perceived to be rampant theft in the colonies of their intellectual property in the form of literature.
…

Current status of Copyright Law?:

Under the Copyright Act of 1790, the first federal copyright act, it stated that the purpose of the act was the “encouragement of learning” and that it achieved this by securing authors the “sole right and liberty of printing, reprinting, publishing and vending” their works for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive. This is likely what our Founding Fathers meant when they wrote in the Constitution for a “limited time.” Gradually this period began to expand, but today’s copyright law bears almost no resemblance to the constitutional provision that enabled it and the conception of this right by our Founding Fathers.

• Original Copyright Law: 14 years, plus 14 year renewal if author is alive.
• Current Copyright Law: Life of author plus 70 years; and for corporate authors 120 years after creation or 95 years after publication.

Can we ever have too much copyright protection?:

Yes. The Federal government has gotten way too big, and our copyright law is a symptom of the expansion in the size and scope of the federal government.

Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system. But we do know that our copyright paradigm is:

A. Retarding the creation of a robust DJ/Remix industry
B. Hampering scientific inquiry
C. Stifling the creation of a public library
D. Discouraging added-value industries
E. Penalizing legitimate journalism and oversight

Potential Policy Solutions:
1. Statutory Damages Reform
2. Expand Fair Use
3. Punish false copyright claims
4. Heavily limit the terms for copyright, and create disincentives for renewal

Conclusion: To be clear, there is a legitimate purpose to copyright (and for that matter patents). Copyright ensures that there is sufficient incentive for content producers to develop content, but there is a steep cost to our unusually long copyright period that Congress has now created. Our Founding Fathers wrote the Constitution with explicit instructions on this matter for a limited copyright – not an indefinite monopoly. We must strike this careful Goldilocks-like balance for the consumer and other businesses versus the content producers.

It is difficult to argue that the life of the author plus 70 years is an appropriate copyright term for this purpose – what possible new incentive was given to the content producer for content protection for a term of life plus 70 years vs. a term of life plus 50 years? Where we have reached a point of such diminishing returns we must be especially aware of the known and predictable impact upon the greater market that these policies have held, and we are left to wonder on the impact that we will never know until we restore a constitutional copyright system.

Current copyright law does not merely distort some markets – rather it destroys entire markets.

[Utmost Certainty]

I ran across this, and surprisingly found it to be an encouraging policy idea. I've tried to summarize the key points in brief—feel free to read the full paper at the link. It's not too long.

IMO, this is a genuinely conservative idea worth advancing. I think anyone supporting the Constitution would generally be in favor of this.

[who_would_fardels_bear]

Thank you for posting. When I heard a pothead rocker claiming that he needed to keep the copyright on his music so that he would have enough money to send his GRANDCHILDREN through college that was all I needed to say enough is enough!

[MetaThought]

This is a genuine free market (as opposed to pro-business) idea. Sounds like it might be worth advancing.

[Pajamajan]

bookmark

[allmendream]

Arts and science are advanced by making it profitable to the originator of the intellectual property. I imagine there might be a public good to be found in confiscation of any property, but it sure doesn’t encourage investing in that property subject to confiscation.

[Irenic]

Straying but branching off your comment.

I had been a huge Tom Petty fan, he pitched a fit about his song being used during the a Bush campaign and he went after Bachmann for using American Girl.

He had claimed he wasn’t political and didn’t want his songs used in that way. I could respect that, as he has always fought that sort of thing. Record labels and all...

The DNC convention rolls around and what happens?! His song plays and I was thinking ah-ha! the DNC is going to get their butt chewed off.

What did Petty do/say about THAT?
—Tom Petty “Got Chills” When the DNC Played His Song “I Won’t Back Down” as Obama walked on stage.

Well, I won’t be spending a penny on this mans music ever again. He is a fake.

[Utmost Certainty]

This isn’t advocating a complete abandonment of copyright law altogether, but merely reforming it back to how it was originally conceived by the Founders.

[onona]

Copyright laws have been in place damn near forever.

They work.

Leave them alone you progressive bastiges.

[allmendream]

The concept of the founders was that arts and sciences would be advanced through securing exclusive rights. And they were correct. There is a reason why so much scientific advancement is made in the USA.

Advancing arts and science was the aim and exclusive rights for a limited time was the means to enact that aim.

A well regulated militia was the aim and the recognition of the right of the people to keep and bear arms was the means to enact that aim.

[Utmost Certainty]

I am aware.

This isn’t suggesting that copyright laws be abolished.

[Utmost Certainty]

Except copyright laws in their current incarnation are deterring innovation. As the paper points out:

• Original Copyright Law: 14 years, plus 14 year renewal if author is alive.
• Current Copyright Law: Life of author plus 70 years; and for corporate authors 120 years after creation or 95 years after publication.

[allmendream]

In 1790 patents were issued for the term of FOURTEEN years, with the right to renew for another FOURTEEN years!

So by all means, restore it back to what was envisioned by the founders. But that isn’t what you really wanted now is it?

[Utmost Certainty]

Gee, I guess not. Thanks for letting me know what my real motives were all along, I had no idea!

[allmendream]

Patents for 28 years might indeed slow innovation. Because they deal with useful discoveries and processes.

But what innovation comes from cheap imitation of someone’s original content? DJs? Really? THAT is your number one example? LOL!!!!

[Utmost Certainty]

It's not my #1 example—it's an example, and I didn't write this paper.

Apparently you overlooked the others listed:

B. Hampering scientific inquiry
C. Stifling the creation of a public library
D. Discouraging added-value industries
E. Penalizing legitimate journalism and oversight

B & C in particular concern how current copyright laws hamper the propagation of useful knowledge.

I don't understand why you're engaging in such a petty argument. If you think the current laws for copyright are wonderful and that this is a stupid policy idea, fine, just say so and move on.

[cameraeye]

If you listen to talk radio, they all use under 30 seconds of music or speeches with impunity. Having faced copyright infringement many years ago (I was forgiven), I scratch my head at this being allowed at all?

[allmendream]

I didn’t overlook it simp. I was pointing out to you that it doesn’t go with the rest of the idiotic argument. Scientific patents are for significantly less than 28 years, as they were in the time of the founders.

What was backup example #1? Fifty Shades of Gray needed to be published as Twilight fan fiction? Lol!

[Utmost Certainty]

Lol, clearly you didn't even read the paper. Since you obviously you need mental hand-holding like a little child, I'll paste what you didn't bother to inform yourself on:

B. Hampering scientific inquiry:
Scientific papers from the early portion of the 20th century are still under copyright… This is illogical, as the purpose of most scientific papers is to further intellectual inquiry, and the goal of most authors of scientific papers is to advance their field and to be cited in other publications. Many professors are assessed upon the number of citations for their major works. For these reasons, keeping their work in what are effectively locked vaults defeats the purpose of much of their work.

Obviously these producers need to be compensated to justify the cost of their research, but after around14 years, most, if not nearly all, of the earning capacity of their work has been exhausted, and at that point the overriding interest is in ensuring that these works are available for others. While there are exceptions in the law for the use of this material for good faith exceptions, there are numerous examples where for-profit entities want to use published journal articles but are unable to do so without negotiating a payment to the producer of the content.

If however, these older papers were available online for free on Google Scholar to anyone to access and use after a reasonable period of time then it would greatly increase the availability and utilization of scientific analysis.

C. Stifling the creation of a public library:
Many of our country’s smartest and most successful people were autodidacts who taught themselves far beyond that of conventional studies through intellectual inquiry of their own and a voracious appetite for reading. Benjamin Franklin conceived the idea of a subscription library because libraries allow for information to be democratized to the masses. Today the sheer amount of information available to the average person is several orders of magnitude beyond that available in 1990, let alone in 1790. But still today an enormous amount of intellectual knowledge in locked behind physical books, rather than accessible on the general internet.

Project Gutenberg is trying to change that by becoming an online repository for a readable/downloadable version of every book available without copyright. Project Gutenberg’s full potential will be to provide the greatest amount of intellectual knowledge ever assembled in the history of the world to any person with the click of a button.

But this potential of knowledge drops off around 1923 when materials are not in the public domain. Imagine the potential for greater learning as a result of obtaining books from the 1920-1980 periods. Assigned books in high school classes could be all downloaded to a student’s Kindle, rather than bought in a book store. The threshold cost for learning will virtually vanish, and with that, the potential for greater learning would skyrocket.

From a technological perspective, the data size of books is very small - for example, every book in the Kindle store could fit on one of the largest available consumer hard drives – thus in a few years it may be technologically possible to have every book ever written on our computer or IPAD at the click of a button (though not necessarily worthwhile because it’s easier to just access the books you need when you need them online).

[allmendream]

And let us not forget about the DJs!

Scientific inquiry is not hampered by copyright. Almost all scientific journals are available free, for a small fee, or through a University library.

If we issued patents for 28 years, as it was in the time of the founders, that would slow scientific innovation. So what you posted is a self contradictory mess.

Is downloading pirated music your next example? That is a value added industry? And how about that Twilight fan fiction?

[Utmost Certainty]