How We Will Outgrow Copyright

by Tom W. Bell
Revise today’s excessive protections, or just work around them.

Whether you realize it or not, you probably infringe copyrights many times every day, incurring hundreds of thousands of dollars in potential liability. You can hardly avoid doing so, given the way that copyright law has outgrown its proper bounds. As explained by my book recently published by the Mercatus Center at George Mason University — Intellectual Privilege: Copyright, Common Law, and the Common Good — U.S. copyright law has fallen out of balance.

First launched by the Founders as a lean and efficient mechanism for stimulating creativity, copyright has swollen into a massive regulatory scheme. Big publishers exploit its complications to the disadvantage of individual creators, while its draconian remedies threaten the fortunes and First Amendment rights of average Americans. But all is not lost. We can save ourselves from copyright’s excesses by both honoring its origins and embracing the emergent trends that will render it irrelevant.

Today, copyright comprehensively regulates access to books, songs, and other creative expressions. While notoriously complex and uncertain, the Copyright Act imposes strict liability on those who violate its terms. It privileges a select few to impose draconian remedies, including court-ordered gags, jail time, and damages up to $150,000 per infringed work, on those who dare to engage in the wrong kind of speech: unoriginal speech.

If this sounds like a threat to your First Amendment rights, try convincing a judge. U.S. courts typically excuse the Copyright Act as a content-neutral restriction, subjecting it to as little scrutiny as they would, say, a ban on using amplifiers at a public protest.

Far from a content-neutral law, however, copyright restricts only unoriginal speech. In so doing, the Act sharply limits our freedoms of expression. To do justice to the words of Martin Luther King Jr., for instance, you have to quote them out loud and in full. Copyright would limit you to paraphrasing his thundering words (yet for $20 you can buy a DVD of his “I Have a Dream” speech from its copyright holder, the British music conglomerate EMI Publishing). Unoriginal speech proves especially crucial to those of us — which is to say, almost all of us — who express ourselves most clearly by borrowing others’ words.

Perhaps bearing these heavy burdens would make sense if we had no better way to fulfill copyright’s constitutional mandate of promoting “the Progress of Science and useful Arts.” More and more, however, we can count on technological advances and new business models to supply us with original songs, books, pictures, and other expressive works.

Whereas it once took an entire industry to discover, record, and distribute new songs, an aspiring artist with a laptop and an Internet connection can now share her music directly with her fans. The same technologies allow would-be novelists to bypass traditional booksellers, self-publish through Amazon and other services, and pocket more of the royalties in the process. As these and other innovations continue to drive down the costs of creating and disseminating expressive works, copyright grows more and more top-heavy.

How did we get into this fix? Blame the rhetoric of property.

Incautious scholars cast copyright as a form of property — intellectual property, as they call it — and claim for it the same degree of respect formerly reserved for houses, cars, and other tangible forms of property. Special-interest groups leveraged that convenient error to their advantage. Observing that rights to tangible property have no time limits, for instance, lobbyists moved the law in that direction by increasing the maximum term of a U.S. copyright from 28 years — the term the Founders established in 1790 — to 120 years under present law.

The Founders’ copyright has swollen beyond recognition in other ways, too. Their 1790 Copyright Act had just 1,308 words — not much more than the length of this article. The present law has over 70,000 words. The Founders’ copyright forbade only duplicating subject works; today’s copyright also forbids derivative works and public distributions, displays, or performances. The 1790 Act offered only statutory damages and the destruction of infringing works as remedies. Remedies in the current act include destruction of infringing copies, statutory or actual damages, recovery of unjust profits, costs and attorney fees, bars on imports, and punishments including fines and imprisonment.

Do you think yourself immune from copyright’s thuggish side? Lawmakers think otherwise. Under the act they passed, you could be liable for $150,000 in statutory damages just for singing “Happy Birthday to You” in a public place. Amazingly, Warner/Chappell Music, Inc., claims a copyright on the song — a fraud that documentary filmmaker Jennifer Nelson has brought suit to correct.

What should we do to reform copyright? First, we need to recognize that the term “intellectual property” has misled us into giving copyrights more respect than they deserve. We should instead return to the wisdom of the Founders and regard copyrights as special privileges narrowly crafted to serve the common good.

Second, we should pursue statutory reforms that encourage authors and artists to rely less on copyright and more on the same common-law rights that elsewhere suffice to keep markets operating smoothly. For instance, lawmakers should ensure that the Copyright Act does not displace common-law devices, such as licenses or technical protections, that entrepreneurs might otherwise use to wring profit from original works. Copyright proves superfluous, for example, when you have to buy a key to access an encrypted work.

Third, we should encourage copyright holders to voluntarily forgo exercising their copyright privileges to the fullest possible extent. The 28-year maximum copyright term favored by the Founders should surely suffice for most modern artists and authors. Many may find that they can do without any copyright at all once common-law alternatives to copyright, such as smart contracts and Bitcoin-enabled micropayments, become more widely used and respected. With innovations like that, users will find it so cheap and easy to pay for authorized access that infringement will lose its appeal.

The Founders would hardly recognize how the narrow and brief privilege they created in 1790 has mutated. Copyright now covers all forms of expression and, thanks to laws like the Sonny Bono Copyright Extension Act, effectively lasts forever. It now even boldly claims the title of property. To protect ourselves from copyright’s overgrown ambitions, we must ensure that alternatives to copyright grow larger still.

Tom W. Bell is a professor of law at Chapman University, Fowler School of Law, and author of a new book published by the Mercatus Center at George Mason University under the terms of the Founders’ Copyright Act of 1790, Intellectual Privilege: Copyright, Common Law, and the Common Good.

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