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.
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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.
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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.

[SatinDoll]

Using today’s copyright laws, one can copyright an ‘idea’ or ‘phrase’, not a work or invention. This has been done usually in the high tech field and has had a chilling affect on development: why work on a project if someone has copyrighted the ‘idea’ but has not created a prototype or actually invented/developed the item resulting from an abstract idea?

I am a firm believer that copyrights should be limited in scope to true works or inventions, not a phrase (an exception would be a commercial or marketing copyright) or abstract idea which I believe is chilling on industry.

As an artist I would be very reluctant to have my creations duplicated and sold without stringent copyright laws in existence. My heirs should be able to benefit for some period of time as I am now 60-years old.

Two hundred years ago, people did not live as long as today’s population. Some inventions take a while to become established and earn money for the inventor, or the artist/writer who created it. Perhaps 14-years should be extended to some greater length of time, say 25-years, with an extension of another 15-years? That, to me, would be equitable.

[daniel1212]

At least the KJV Bible is not under copyright like most all the rest, wrongly in my opinion, as is criminalizes free sharing of it, with attribution to the source, of anything done by a Christian ministry for gospel work. However, those who seek to make money off such without permission of the source, if living and possible, should be prosecuted.

Certainly it cost money to do things like make videos, but if God called us into ministry of faith then we must trust Him who “gave at the cross” to provide His workers with what is needed to do the work He called them to.

Which He will in His mercy and grace, and insomuch as we practice Mt. 6:33, in patience and faith (which i need to do better).

Outside that, i think anything put out in public, as on the web, should be expected and allowed to be personally saved, and not just one archival copy as regards digital data as is presently allowed. But never sold without permission.

And i believe the 70 year extension of copyright after the authors death is too long.

[Dr. Sivana]

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.

I hope by "confiscation", you mean the big media giants that buy up the copyrights. Case in point: A.A. Milne had Winnie the Pooh, sold it to Disney before the copyright on the character was due to expire. Disney turns around and gets Congress to extend the copyright for another 20-25 years. So, either A.A. Milne got rooked, or if the extension didn't got through, a vast industry of Winnie the Pooh stuff would get generated by cottage industry. Either way, Disney gets money in exchange for political clout. Make the copyright a flat amount upon creation. Fifty years should be enough. The Rolling Stones can still make money by putting on shows if they still want more.

[onona]

Baloney. Innovation occurs naturally. Daily. Copyright laws have nothing to do with innovation. They were created to protect intellectual property.

[JerseyanExile]

You want a perfect example of how a large body of public domain works encourages creativity? Well, look no further than Disney. Most of those classic Disney tales were, in fact, reworked versions of the creations of other people that were in the public domain. Snow White (Brothers Grimm), Pinocchio (Carlo Collodi), Alice in Wonderland (Lewis Carroll), The Jungle Book (Rudyard Kipling), The Little Mermaid (Hans Christian Andersen), Hunchback of Notre Dame (Victor Hugo), the list goes on.

[JerseyanExile]

The change in life expectancy hasn’t been that great - the statistics were skewed by an extremely high infant immortality rate. The expected lifespan of an adult of age 20 in 1850 was 60 years. Nowadays, it’s around 76 years. So, only a 16 year increase.

[who_would_fardels_bear]

"Almost all scientific journals are available free, for a small fee, or through a University library."

That is not an accurate statement. Sites like JSTOR do not provide materials for free or at a nominal fee.

The IEEE and similar organizations do not give free access to their journals, nor is the cost of access nominal.

Even working for a firm that has a blanket IEEE license is no solution. Our company must now pay larger fees to gain access to the same number or fewer journals. They have decided to cancel some subscriptions to those journals which are consulted less frequently. So our company is now "saving" thousands of dollars a year by not keeping up those subscriptions, but then will end up losing thousands when employees spend hours trying to access that information, or not having access to it, end up reinventing the wheel.

[Blue Ink]

“But what innovation comes from cheap imitation of someone’s original content?”

Um, movies? Thomas Edison nearly strangled the nascent motion picture industry. His enforcers charged a fee if you made a movie. His enforcers charged a fee if you made a motion picture camera. In short, Edison got a cut if you did anything involving light, shadow, and moving pictures.

That could not have been the Founders’ intent. It would be like Guttenberg getting a cut on every printing press.

That’s why Hollywood fled to, well, Hollywood. The myth is “for the weather.” The reality was to get away from the Edison police.

[Blue Ink]

“You want a perfect example of how a large body of public domain works encourages creativity? Well, look no further than Disney. “

And paradoxically, Disney has managed to exempt themselves from the very public domain laws by which they’ve amassed great wealth — they shamelessly gamed Congress into extending their Mickey Mouse copyright forever.

(And no, it won’t expire in a hundred years. We’ll all be dead, and the Disney lawyers will get another extension.)