Tuesday 2 October 2012

US copyright law needs serious attention from Congress and the courts

Richard Posner, the US Seventh Circuit Court of Appeal Judge who recently ruled in the MyVidster case that linking to infringing content is not an infringement of copyright in the US, has expressed concern on his blog that "that both patent and copyright protection, though particularly the former, may be excessive". Posner writes that the protection offered by copyright law is too extensive, particularly in relation to term of protection and the courts' narrow protection of the fair use exception.

Posner does acknowledge that films these days often cost hundreds of millions of dollars to make, and concedes that they suffer from the problem of being "copiable almost instantaneously and able to be both copied and distributed almost costlessly". In respect of these he feels that the need for copyright protection is comparable to that in the pharmaceutical industry.

On the other hand, Posner cites academic books and articles (apart from textbooks) which are created as a by product of academic research as less useful and therefore less worthy of protection. These works, he says, are created by academics seeking to preserve their professional reputation and would continue to be created even if afforded no copyright protection at all. He goes on to say that "it is doubtful that there is any social benefit to the copyrighting of academic work other than textbooks, which require a lot of work and generally do not enhance the author's academic reputation and may undermine it."

This blogger does not particularly agree with this analysis: textbooks often do enhance an author's academic reputation. The exposure afforded by publishing a textbook must be at least part of the reason that textbooks are written, in addition to the revenue that they generate. To take protection away from academic articles, when academics often rely on publishing papers to make their research public, seems a little unfair on a group of professionals that arguably does more for the public benefit that the film industry does. In addition, academics rely on publication to enhance their reputations and so secure grants for their research. Therefore although an academic may well publish in order to "preserve his professional reputation", the net effect is to fund further research.

Posner's two specific criticisms of copyright law are the duration of protection and the fair use exception. In the US, most works are protected by copyright for the life of the author plus 70 years. Posner says that:

"Apart from the fact that the present value of income received so far in the future is negligible, obtaining copyright licenses on very old works is difficult because not only is the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find. The copyright term should be shorter."

The term of copyright protection has crept up over the years, and it does seem illogical that a person should be protected so long after their death. The creative industries would be far better served if works were to become available earlier; in this day most authors are lucky if revenue from their life's works see them through old age, let alone go on to provide a source of income for their children.

Another consideration has to be computer-generated works: so many works now are created electronically or by vast teams of people. Copyright authorship rules accommodate that fact, however it hardly seems fair or relevant that copyright should extend so far beyond the death of the author when in fact the work took a whole team of people (or computers) to create.

Finally Posner considers fair use. He says that "the problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license." In his view, because most works are built on previous existing works, this defence should not be interpreted so narrowly. The US system does at least recognise that use any work which is deemed to be fair should be permitted, which is more flexible than fair dealing in the UK.

Posner finishes by saying that: "The need for reform is less acute in copyright than in patent law, but it is sufficiently acute to warrant serious attention from Congress and the courts." That copyright law should receive serious attention from the top should not be in dispute. The real question, is what should they do about it?


Anonymous said...

J. Posner should retire. He's clearly losing his marbles.

Anonymous said...

Hmmm. Some of Posner's critiques are from the Berne Convention. (E.g. Berne says duration of protection is author's life + 50...we obviously don't want to give less time than other net exporting IP countries have given, which is now life + 70). How is Congress going to revisit copyright law and give protections that are less than the minimum standards in Berne? Can't do that!