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.