[x-pubpol] Bill Rosenblatt reviews Patry's 'How to Fix Copyright'

[Joly MacFie]

Patry on Copyright
Repair<http://copyrightandtechnology.com/2012/02/12/patry-on-copyright-repair/>

Posted: 12 Feb 2012 06:07 AM PST

The prolific copyright authority William Patry wrote a book in 2009, *Moral
Panics and the Copyright
Wars<http://copyrightandtechnology.com/2010/05/12/william-patrys-war-on-copyright/>
*, which was a jeremiad against the current copyright system along with
pleas for reform — but with no ideas about how to reform it.  In response
to criticism, Patry promised a follow-up work that would supply the
“prescription out of the current situation.”  That book would be titled *How
to Fix Copyright*, and it would come out in the beginning of 2011.

So here we are in early 2012.  The book is now out.  But as a prescription
for how to fix copyright, it’s a disappointment.

First of all, the reader has to wade through a lot of complaints about
today’s copyright system, and other redundancies to *Moral Panics*, to get
to any suggested solutions.  Furthermore, Patry — apparently against the
advice of his editors — refused to create a summary that neatly lists his
ideas for reform.  It is true that the book contains deeper ideas that it
would be unfair to reduce to list items, and I’ll get to some of these.
 But first, here’s a list of succinctly statable copyright reform ideas in
Patry’s book:

   1. Reduce the term of copyright, because most works make money for their
   owners in the first few years after release, and after that they are best
   put into the public domain.
   2. Make copyright registration mandatory instead of automatic, so that
   only those who really want protection for their works can get it.
   3. Pass strong “orphan works” legislation, so that works whose owners
   won’t or can’t claim them can be enjoyed by all instead of being locked up
   in limbo.
   4. Create comprehensive global rights registries, so that copyright
   users can instantly tell who owns what and license works appropriately.
   5. Streamline the impenetrable maze of copyright licensing entities,
   rules and cross-border inconsistencies, so that it becomes easier to access
   content legally worldwide.
   6. Create more statutory licenses, blanket licenses, and levies, to make
   copyright easier to administer and rights holder compensation easier to
   generate.
   7. Price copyrighted works differently in different geographies to
   reflect economic realities, because people in economically challenged
   countries can’t possibly afford the prices for content that people in
   first-world countries pay.
   8. Change copyright law to accommodate the new breed of digital artists
   whose tools necessarily involve copying pieces of copyrighted material.
   9. Abolish legal constructs that impose or support “digital locks” on
   content, such as DMCA 1201, because they unfairly restrict technological
   development as well as Fair Use.

Go to any other established copyleft source — Lessig, Litman,
Vaidhyanathan, Public Knowledge, etc. — and you’ll find much the same list.
 One exception, perhaps, is #7, geographically differentiated pricing
(though this has little to do with copyright law per se).  This has been
shown to work well for physical products such as CDs: for example,
Microsoft tried it for software and found its piracy rates in countries
like China significantly reduced.  But it’s hard to see how you make it
work for pure digital content without lots of impractical cross-border
enforcement implications (mandatory geolocation-based filtering, anyone?).

Now that we’ve gotten the Cliffs Notes version of this book out of the way,
let’s get to the more novel and interesting ideas.  First is Patry’s call
for resetting goals of copyright reform so that they focus on the original
objective of copyright.  The original objective has been to maximize the
works available to the public by providing creators incentives to create
them.  Changes to copyright law have often been enacted with the objective
of reducing infringement and preserving revenue for copyright owners.  That
goal overlaps with the original one, but it’s not the same thing.  He also
says that future changes should be based on hard evidence that a proposed
change will help achieve the objective rather than “blind faith” that it
will do so.  The evidence-vs.-faith argument makes great sense and is hard
to argue with in principle.

Yet Patry doesn’t discuss how this could actually be implemented in the
U.S.; he mainly provides the counterexample of the UK Digital Economy Bill
and the lack of analysis that went into it when it was rammed through
Parliament<http://copyrightandtechnology.com/2010/04/21/uk-digital-economy-bill-becomes-law/>.
 The normal U.S. process in implementing a law that touches the business
world is for lobbying groups to influence members of Congress — and in many
cases, to even propose legislation drafts.  In the case of copyright,
Congress has a nonpartisan Copyright Office that is supposed to advise it
on such matters.  Patry would certainly know to what degree the Copyright
Office could act as the source of the independent “impact statements” he
seeks, since he worked there himself.

The Office does evaluate proposed changes to the law today, though in
tightly controlled ways such as the triennial rulemaking on DMCA
1201<http://copyrightandtechnology.com/2010/07/29/fair-use-and-the-dmca-triennial-rulemaking/>.
 It does get lots of “input” from lobbyists and (as I know from my own
experience) hungers for truly independent expertise.  But the Office does
not have the capacity to evaluate the economic, technological, and
behavioral issues that come into play when judging the impact of proposed
changes to the law.  The European Commission’s Special Advisor program
could be a model for what Patry has in mind: it hires outside experts to
consult (for nominal fees) after they pass strict conflict-of-interest
vetting processes.

But if the real goal of copyright is to maximize the amount of works
available to the public, then it seems to me that the evidence is before us
today and is so obvious as to require no studies at all.  Sites like
YouTube, Flickr, Scribd, and any number of free music sites offer exploding
numbers of works that are supposedly covered under copyright (or some
subset of copyright, such as Creative Commons licenses) and are there for
promotional or non-pecuniary reasons.  The numbers are huge even without
the infringing material.  And I suspect that most people who
upload original material to these sites don’t think about copyright at all.
  How does this state of affairs require “reform”?

Patry discusses two other ideas that complicate his principles of reform.
 He insists that for copyright to do its job, content creators should be
able to make livings from their work.  So far, so good.  He says that the
current system favors major media companies, and the benefits do not
“trickle down” to individual content creators.  Also hard to argue with.

Yet once again, he doesn’t really describe how to fix this problem.
 Without explicitly tying them to the problem of compensation for
individual content creators, he calls for more blanket or statutory
licenses, in which licensing entities set monetary terms for content on
behalf of large numbers of or “all” content creators respectively, and
levies, which are taxes on hardware and blank media.  All of these result
in license fees that are somehow disbursed (after being reduced to cover
“overhead”) to content creators through “magic black boxes” that are
affiliated with or beholden to governments.   Such entities — at least in
their current states — are often far cries from independence and fact bases.

He also calls for global rights
registries<http://copyrightandtechnology.com/2011/10/10/the-future-of-music-from-blanket-licensing-to-registries/>,
which should make licensing and compensation fairer and more efficient.
 But such things would have to coexist with the collecting society (i.e.
government-affiliated magic black box) system that we have today — or the
latter would have to be drastically changed.  This is a highly promising
area of thought; unfortunately Patry doesn’t connect the dots far enough to
pursue it.

The second idea in *How to Fix Copyright* that complicates Patry’s
copyright reform principles is his foray into the dark and dangerous waters
of dichotomy between “culturally important” content and “commercial trash.”
 Patry, a classically-trained clarinetist who commissions composers to
write works for his instrument (don’t get me wrong: this is a good thing!),
wants to preserve “cultural” content and has no interest in Hollywood
products such as *Batman 3, American Pie 4*, or Miley Cyrus.  In this,
Patry parts company with his employer Google, whose lobbyist Derek Slater
recently said, in justifying YouTube, that it’s wrong to judge content by
“quality” because “one man’s trash is another man’s treasure.”

The original purpose of copyright runs into some trouble over this
ambiguity: should copyright seek to maximize “what the people want” or
works that meet some cultural or “quality” criteria?  There must surely be
some history behind this conundrum.  Patry must know it from his background
as law professor and textbook author, but he doesn’t share it here.  If
it’s the former, then it seems to me that the system is working just fine
as is.  The major media companies are expert in recognizing and satisfying
popular demand, even if they do less and less work in creating the actual
content.  And for those who aren’t interested in big-media content, there’s
YouTube, SoundCloud, Scribd, and so many other sources of content that
doesn’t even cost anything.

But if the purpose of copyright is really to maximize “quality” or
“cultural” works, then what about creating (and properly funding) a
Department of Culture and a cabinet-level Secretary to run it — thereby
putting the United States on par with most other developed countries?
 Patry stops short of recommending this, but he tends in that direction by
calling for “direct funding [of] diverse cultural works” (i.e. patronage),
expressing admiration for crowd-funding entities like Kickstarter, and
generally appearing to see “marketing” as an egregious form of corporate
mass hypnosis.

The final big idea in Patry’s book that merits discussion is his treatment
of Fair Use.  Patry spends an entire chapter singing the praises of Fair
Use as a deliberately vague and conceptual construct.  He takes an
expansive view of Fair Use that is seemingly at odds with Larry Lessig’s
position that it is a “wedge” between legal use and infringement that has
been overloaded in the digital age.  It’s also, as I’ve said many times, at
odds with digital reality today.

Patry contrasts U.S. Fair Use with the Fair Dealing system used in the UK,
Canada, and Australia, and with the similar scheme implemented through the
European Union Copyright Directive.  He calls those systems “closed list”
systems because they codify uses of content that aren’t infringement (such
as parody and criticism) rather than using the “open-ended” concepts found
in U.S. law.  He says, “Critics of the U.S. fair use doctrine point to the
alleged ‘open-ended’ nature of fair use and argue that it lacks certainty.”
 Yep, it sure does.  Fair Use’s lack of certainty makes it impracticable in
the digital age as never before.  Lessig has said that Fair Use is really
just the right to hire a lawyer; Patry either doesn’t agree or doesn’t care.

This attitude that the copyright systems’ efficacy should be based on laws
as written, and as executed by lawyers,  governments, and
government-sanctioned entities, pervades *How to Fix Copyright.  *In other
words, not only is the book short on implementation recommendations, but it
also doesn’t look far enough outside the system to determine how to fix it.
 In his previous book, Patry had the temerity to suggest that “perhaps the
answer to the machine is in the machine,” referring to Google’s use of
fingerprint-based copyright filtering technology as an effective way of
reducing piracy and monetizing content on YouTube.  But in *How to Fix
Copyright*, he spends an entire chapter recanting this statement.  This
chapter that contains so much rhetorical contortion (not to mention
misunderstandings of technology and the market) that I bet it’s the result
of Patry’s copyleft colleagues giving him grief about what he said last
time.

And that’s the biggest problem I personally have with this book.  The route
to getting many content creators paid is neither through big-government
“magic boxes” nor through laws that are for all intents and purposes
unenforceable without technology or unless you can afford to both hire a
good lawyer and wait until the litigation or negotiation is over.  I don’t
disagree that the copyright system needs reforming, but the original ideas
for reform in this book have questionable practical value without plausible
explanations of how they might actually work.

William Patry is a highly learned and respected figure in copyright with
depth and breadth of interests that do him credit; his writing is
articulate, well-researched, and persuasive.  One can certainly read
similar enumerations of copyleft ideas from other sources that are more
shallow, strident, doctrinaire, and/or uninformed.  But in the end — and
unlike in copyright — the ideas matter more than the expression, and in *How
to Fix Copyright, *the ideas underwhelm.


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