Free Culture, Lawrence Lessig [best value ebook reader txt] 📗

For example, if a recording industry association devises a method for marking CDs, it would propose that to the Copyright Office. The Copyright Office would hold a hearing, at which other proposals could be made. The Copyright Office would then select the proposal that it judged preferable, and it would base that choice solely upon the consideration of which method could best be integrated into the registration and renewal system. We would not count on the government to innovate; but we would count on the government to keep the product of innovation in line with its other important functions.

Finally, marking content clearly would simplify registration requirements. If photographs were marked by author and year, there would be little reason not to allow a photographer to reregister, for example, all photographs taken in a particular year in one quick step. The aim of the formality is not to burden the creator; the system itself should be kept as simple as possible.

The objective of formalities is to make things clear. The existing system does nothing to make things clear. Indeed, it seems designed to make things unclear.

If formalities such as registration were reinstated, one of the most difficult aspects of relying upon the public domain would be removed. It would be simple to identify what content is presumptively free; it would be simple to identify who controls the rights for a particular kind of content; it would be simple to assert those rights, and to renew that assertion at the appropriate time.

2. Shorter Terms

The term of copyright has gone from fourteen years to ninety-five years for corporate authors, and life of the author plus seventy years for natural authors.

In The Future of Ideas, I proposed a seventy-five-year term, granted in five-year increments with a requirement of renewal every five years. That seemed radical enough at the time. But after we lost Eldred v. Ashcroft, the proposals became even more radical. The Economist endorsed a proposal for a fourteen-year copyright term.3 Others have proposed tying the term to the term for patents.

I agree with those who believe that we need a radical change in copy-right's term. But whether fourteen years or seventy-five, there are four principles that are important to keep in mind about copyright terms.

(1) Keep it short: The term should be as long as necessary to give incentives to create, but no longer. If it were tied to very strong protections for authors (so authors were able to reclaim rights from publishers), rights to the same work (not derivative works) might be extended further. The key is not to tie the work up with legal regulations when it no longer benefits an author.

(2) Keep it simple: The line between the public domain and protected content must be kept clear. Lawyers like the fuzziness of "fair use," and the distinction between "ideas" and "expression." That kind of law gives them lots of work. But our framers had a simpler idea in mind: protected versus unprotected. The value of short terms is that there is little need to build exceptions into copyright when the term itself is kept short. A clear and active "lawyer-free zone" makes the complexities of "fair use" and "idea/expression" less necessary to navigate.

(3) Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner should be required to signal periodically that he wants the protection continued. This need not be an onerous burden, but there is no reason this monopoly protection has to be granted for free. On average, it takes ninety minutes for a veteran to apply for a pension.4 If we make veterans suffer that burden, I don't see why we couldn't require authors to spend ten minutes every fifty years to file a single form.

(4) Keep it prospective: Whatever the term of copyright should be, the clearest lesson that economists teach is that a term once given should not be extended. It might have been a mistake in 1923 for the law to offer authors only a fifty-six-year term. I don't think so, but it's possible. If it was a mistake, then the consequence was that we got fewer authors to create in 1923 than we otherwise would have. But we can't correct that mistake today by increasing the term. No matter what we do today, we will not increase the number of authors who wrote in 1923. Of course, we can increase the reward that those who write now get (or alternatively, increase the copyright burden that smothers many works that are today invisible). But increasing their reward will not increase their creativity in 1923. What's not done is not done, and there's nothing we can do about that now.

These changes together should produce an average copyright term that is much shorter than the current term. Until 1976, the average term was just 32.2 years. We should be aiming for the same.

No doubt the extremists will call these ideas "radical." (After all, I call them "extremists.") But again, the term I recommended was longer than the term under Richard Nixon. How "radical" can it be to ask for a more generous copyright law than Richard Nixon presided over?

3. Free Use Vs. Fair Use

As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the ground to the heavens. The airplane came along. The scope of property rights quickly changed. There was no fuss, no constitutional challenge. It made no sense anymore to grant that much control, given the emergence of that new technology.

Our Constitution gives Congress the power to give authors "exclusive right" to "their writings." Congress has given authors an exclusive right to "their writings" plus any derivative writings (made by others) that are sufficiently close to the author's original work.Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even though that movie is not "my writing."

Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to control translations and dramatizations of a work.5 The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan.

So inured have we become to the extension of the monopoly to a large range of so-called derivative works, that we no longer sense the oddity of accepting such an enlargement of copyright while yet intoning the abracadabra of idea and expression.6

I think it's time to recognize that there are airplanes in this field and the expansiveness of these rights of derivative use no longer make sense. More precisely, they don't make sense for the period of time that a copyright runs. And they don't make sense as an amorphous grant. Consider each limitation in turn.

Term: If Congress wants to grant a derivative right, then that right should be for a much shorter term. It makes sense to protect John Grisham's right to sell the movie rights to his latest novel (or at least I'm willing to assume it does); but it does not make sense for that right to run for the same term as the underlying copyright. The derivative right could be important in inducing creativity; it is not important long after the creative work is done.

Scope: Likewise should the scope of derivative rights be narrowed. Again, there are some cases in which derivative rights are important. Those should be specified. But the law should draw clear lines around regulated and unregulated uses of copyrighted material. When all "reuse" of creative material was within the control of businesses, perhaps it made sense to require lawyers to negotiate the lines. It no longer makes sense for lawyers to negotiate the lines. Think about all the creative possibilities that digital technologies enable; now imagine pouring molasses into the machines. That's what this general requirement of permission does to the creative process. Smothers it.

This was the point that Alben made when describing the making of the Clint Eastwood CD. While it makes sense to require negotiation for foreseeable derivative rights--turning a book into a movie, or a poem into a musical score--it doesn't make sense to require negotiation for the unforeseeable. Here, a statutory right would make much more sense.

In each of these cases, the law should mark the uses that are protected, and the presumption should be that other uses are not protected. This is the reverse of the recommendation of my colleague Paul Goldstein.7 His view is that the law should be written so that expanded protections follow expanded uses.

Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of the Internet, the uncertainty about the scope of protection, and the incentives to protect existing architectures of revenue, combined with a strong copyright, weaken the process of innovation.

The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon certain statutory conditions. Either way, the effect would be to free a great deal of culture to others to cultivate. And under a statutory rights regime, that reuse would earn artists more income.

4. Liberate the Music--Again

The battle that got this whole war going was about music, so it wouldn't be fair to end this book without addressing the issue that is, to most people, most pressing--music. There is no other policy issue that better teaches the lessons of this book than the battles around the sharing of music.

The appeal of file-sharing music was the crack cocaine of the Inter-net's growth. It drove demand for access to the Internet more powerfully than any other single application. It was the Internet's killer app--possibly in two senses of that word. It no doubt was the application that drove demand for bandwidth. It may well be the application that drives demand for regulations that in the end kill innovation on the network.

The aim of copyright, with respect to content in general and music in particular, is to create the incentives for music to be composed, performed, and, most importantly, spread. The law does this by giving an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance.

File-sharing networks complicate this model by enabling the spread of content for which the performer has not been paid. But of course, that's not all the file-sharing networks do. As I described in chapter 5, they enable four different kinds of sharing:

A. There are some who are using sharing networks as substitutes for purchasing CDs.

B. There are also some who are using sharing networks to sample, on the way to purchasing CDs.

C. There are many who are using file-sharing networks to get access to content that is no longer sold but is still under copyright or that would have been too cumbersome to buy off the Net.

D. There are many who are using file-sharing networks to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses.

Any reform of the law needs to keep these different uses in focus. It must avoid burdening type D even if it aims to eliminate type A. The eagerness with which the law aims to eliminate type A, moreover, should depend upon the magnitude of type B. As with VCRs, if the net effect of sharing is actually not very harmful, the need for regulation is significantly weakened.

As I said