Cleaning the barnacles from the S.S. Copyright

Bashing current copyright law is easy—just ask Jessica Litman, a professor of law at the University of Michigan. She calls current US copyright a “swollen, barnacle-encrusted collection of incomprehensible prose.” Or, to change the metaphor to aging, copyright law is “old, outmoded, inflexible, and beginning to display the symptoms of multiple systems failure.”

Suggesting something new to replace it can be a harder job, and Litman turns her attention to that task in an unpublished new paper called “Real Copyright Reform” (PDF). Part of a spate of recent reform proposals (Public Knowledge is heading another high-profile effort, for example), Litman’s quest to reform the 1976 Copyright Act is, as she acknowledges, quixotic.

“None of these proposals is likely to attract serious attention from Congress or copyright lobbyists,” she writes. “Right now the copyright legislation playing field is completely controlled by its beneficiaries. They have persuaded Congress that it is pointless to try to enact copyright laws without their assent.”

Still, academics have never limited themselves to something as tawdry as “reality,” and Litman’s theoretical work here is no exception. Her entire reform proposal is based on a few key principles: returning power to both creators and consumers, radically simplifying the law so that people can understand it without a lawyer, and beating the record companies, publishers, and movie studios about the head with a shovel.

Who might object to that? The big distributors, for one, would probably not be pleased with any plan devoted to ousting “the current vested intermediaries from their control of pieces of copyright, and return that power to the creators.”

Removing the barnacles

Litman’s reform is predicated on the idea that current law gives too much advantage to distributors. That model was more appropriate decades ago when distribution was a capital-intensive business that featured printing presses, fleets of delivery trucks, national retail stores, CD printing plants, and television transmitters.

In today’s brave New World, “the new economics of digital distribution mean that we no longer need to shape our copyright law in ways that disadvantage creators vis-à-vis distributors unless we want to,” writes Litman.

In fact, current copyright law may contain the seeds of its own destruction by breeding a general contempt for the very idea of copyright. If the general public looks at laws like the Sonny Bono copyright term extension act of 1998 (which added 20 years to many existing copyrights) and sees only rent-seeking behavior by major corporations, copyright itself can come to seem illegitimate. Debacles like the Sony BMG rootkit haven’t helped, nor has the entire field of DRM, which has largely failed to stop piracy but has energized and outraged a generation of tech-savvy kids.

“A public citizenry that believes its copyright law is illegitimate may respond by withdrawing its support from the system,” writes Litman. “Enforcing copyright law in an atmosphere of public cynicism about the legitimacy of the law is a difficult task. A public that complies with copyright only because it’s afraid of the copyright police will soon find ways to invade or restrain the copyright police. The long-term health of the copyright system, thus, requires that members of the public believe that their investment in copyright is well spent.”

The other big goal of this reform proposal is simplification. “The fact that legacy copyright rules bind ordinary people engaging in everyday transactions, but are too complicated to explain to them, is nothing for us to be proud of,” Litman writes. She cites the many distinctions “that makes no apparent sense.”

“If you tell the owner of a sports bar that the copyright statute allows him to install up to six television sets in his sports bar so long as the picture is turned off, but only one television set if the picture is turned on, he will understandably tell you that the law is looney.”

To accomplish these goals, Litman’s main suggestion is that the multiple rights provided for in copyright law (the reproduction right, the right to make derivative works, the right to make public performances, etc.) be compacted into a single right: the author’s right to control commercial exploitation of the work.

Anyone engaged in noncommercial use of a given work would be free to do so without seeking a license and without worrying about lawsuits. Things like fair use would still exist, but would only come into play in commercial exploitations (such as when The Daily Show uses news clips from other networks).

This single change would reduce the length and complexity of copyright law, make it easier for creators to understand and control their rights, and could cut down the power of the distributors and intermediaries. One of the key problems with this proposal, of course, is defining “noncommercial use.” P2P Defendants have often made the case that their file-sharing was noncommercial, for example; the recording industry has repeatedly argued in court that, because the songs were being sold commercially and because at least some of those people downloading files would have purchased them, even actions done without payment can be “commercial.”

Termination and readers’ rights

Litman also argues that creators should have more chances to take back their copyrights. Currently, US law does provide certain “termination rights” to artists who want to reclaim the copyrights they signed away. These rights are difficult enough to access and practice that Litman calls them “fake.” In her view, creators should be able to terminate their contracts with the readers after 15 years, subject to a five-year notice.

The reform proposal also recognizes a greater place for “readers’ rights.” This idea goes back to the earlier concerns about the legitimacy of copyright law. “If copyright law expressly recognizes the reader, listener, and viewer interests must sometimes be protected against overreaching creators and distributors, it is much easier for members of the public to invest in the principle that copyright should protect creators and distributors from exploitation of readers, listeners, and viewers.”

In addition, the Copyright Office would gain a new position: the “copyright ombudsman.” The ombudsman’s job would be to “explain the copyright system to the public and articulate the public’s interest to the staff of the Copyright Office and to Congress.”

Finally, Litman takes a broad whack at collecting societies like ASCAP, BMI, and SoundExchange, arguing that such entrenched middlemen need to be “de-trenched.” In this ideal future, the collecting societies would be reborn as more transparent, more competitive voluntary organizations.

Why is reform so tough?

Reform is tough for many reasons, including the fact that it takes substantial legislative time, and more pressing matters of war and economics continue to dominate Congressional attention spans. But it’s also tough due to the sheer power of existing institutions, who wield armies of lawyers and lobbyists to prevent negative changes to the laws underlying their business models.