January 18, 2014 | By Cathy Gellis

Copyright's Not Getting its Job Done

In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and what we need to do to make sure the law promotes creativity and innovation. We've put together a page where you can read and endorse the principles yourself. Let's send a message to DC, Hollywood, Silicon Valley, Brussels, and wherever else folks are making new copyright rules: We're from the Internet, and we're here to help.

People sometimes treat copyright law as though it's a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that's not the case at all, and it's important to remember this when we think about what's gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren't slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the "Statute of Anne," a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as "[a]n Act for the Encouragement of Learning." While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a "copy right" so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won't create if it won't ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it's worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there's no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it's sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It's also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it's not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public's access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it's time to reshape it into something that does. It's time to fix copyright law so that it can finally get the job done that it was always intended to do.

This is a guest post from tech policy attorney Cathy Gellis. You can follow her on Twitter.

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