How to Fix Copyright, Part I

Thanks to Eugene for allowing to be a guest and to discuss my new book How to Fix Copyright (Oxford University Press). This is the first of a few posts. The title indicates that the book is both prescriptive – offering solutions (this is the “how to” part) – and attempts to be constructive: I want to fix, that is, improve copyright law’s effectiveness. I believe laws are tools, not ends in themselves, and that we should measure, empirically, their effectiveness against their stated objective.

We do not inherently need strong laws or weak laws anymore than we inherently need strong or weak medicines. We need laws and medicines that are fit for their purpose. What are copyright laws supposed to do? The most popular things copyright laws are said to do are: (1) provide incentives for authors to create works they would not create in the absence of that incentive; (2) provide the public with access to those works; and, (3) in some countries, provide respect, via non-economic rights, for those who create cultural works.

These goals are often fleshed out in ways that fit into the following two syllogisms and one tautology. Syllogism number one: Copyright is the basis for creativity. Creativity is the basis for culture. Therefore, copyright is the basis for culture. Syllogism number two: Copyright is the basis for a knowledge-based economy. The knowledge-based economy is the basis for competitiveness. Therefore, copyright is the basis for competitiveness. The tautology is the statement that the creative industries are those industries dependent on copyright laws and therefore copyright laws are essential to the growth of the creative industries.

The book examines the evidence for these statements to figure out if our current laws are accomplishing these goals, and if not, whether they can be amended, or if we need to find other ways to fulfill them. I also look at the nature of creativity, markets and technologies: If the, or at least an important, goal of copyright is to encourage creativity and copyright laws can encourage creativity, we need copyright laws that match the actual ways people create and the actual markets for that creativity.

My take on technology is that it is neither a savior or an enemy: Technology is the means by which market expectations are created and satisfied, or not, in which case there are problems. The problems of not satisfying consumer expectations created by technology are market problems and not, as is so often claimed, legal problems. Changing markets and products are an economic fact of life: no copyright law can force people to buy things they do not want to buy, anymore than laws can outlaw recessions or business cycles. This is not to condone massive infringement of others’ rights or to suggest that a failure or decision not to supply markets justifies what is commonly called piracy, but it is to suggest, along with studies done on the issue, that pricing and making products attractive to different markets can go a very long way toward reducing unauthorized copying.

The book reflects my personal views and not my employer’s.

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