By Sandra Aistars
The head of the United States Copyright Office has suggested that it may be time to start considering “the next great Copyright Act.” The last general revision to U.S. copyright law passed in 1976 at the end of a process that took over twenty years. Looking back, that time may seem like a completely different world. Since then, incredible technological advances and an ever-shrinking world have brought new opportunities and challenges. Copyright law has not been immune to these developments.
In fact, with the advent of digital technologies and the internet, the centuries-old legal doctrine of copyright has perhaps faced more challenges than any other area of the law. So it is not surprising that in recent years, we’ve heard calls for copyright revision from a wide range of sources. But when that call comes from the Register of Copyrights, it makes revision seem less a proposal and more a reality.
Should Congress take on the challenge of updating the Copyright Act, it must do so guided by sound principles, and its deliberations must be based in reality rather than rhetoric.
Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression. Consent is at the heart of freedom, thus we must judge any proposed update by whether it prioritizes artists’ rights to have meaningful control over their creative work and livelihood.
Copyright is vital to protecting individual creators’ choice in how they express themselves to the general public. Whether authors take a DIY route or partner with a company, whether they sell their works or give them away, their choices must be respected.
Choice, coupled with consent also drives the economy. The free market system is premised on the idea that the result of individuals making choices, and having stable property rights, will lead to greater economic growth and prosperity than any other system.
Copyright embodies these principles. By securing stable rights to expressive works and vesting the choice of what to do with those rights in creators, we all flourish. It is vital that if Congress accepts the challenge to revise the Copyright Act, it is guided by these principles.
It is just as vital that revision debates remain grounded in reality. It is far too easy to be diverted here.
Those skeptical of copyright protection have expended a lot of energy to redefine its language and revise its history. Calls for lessening copyright protections are far too often accompanied by heated rhetoric. Appealing to emotions may be a great way to drum up signatures for online petitions, but has no place in policy discussions. Finally, it is not hard to find examples of those who propose dramatic changes without understanding the business realities of how creative individuals and industries operate.
Fortunately, data that Congress can rely on is emerging. Recent academic studies, for example, have presented empirical evidence that shows that not only has widespread infringement harmed authors and copyright owners, but also effective and tailored enforcement efforts can guide consumers toward legal avenues.
At the same time, there is a limit to how much the goal of copyright law — the progress of the arts and sciences — can be reduced to numbers.
No one can doubt that creators in the U.S. have contributed a wealth of new ideas and expression — whether in the form of music, films, books, visual art or scholarly research — in the three decades since the last general revision of the Copyright Act. This is, in no small part, thanks to the fair and ethical treatment of authors and creators.
Aistars is executive director of the Copyright Alliance.