WASHINGTON, D.C. – Copyright Alliance Executive Director Sandra Aistars made the following statement re: today’s hearing on “A Case Study For Consensus Building: The Copyright Principles Project,” to the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet.
The theme you have chosen for this first hearing to review the Copyright Act is consensus building. As an organization that unites creators across disciplines and transcends boundaries between copyright holders of different backgrounds, we agree consensus building is important whenever challenging issues are discussed. We believe, however, that the Committee needs to take one step further back.
For the Committee’s work to have meaning, in reviewing copyright law you must bear in mind one thing: before there are competing vested interests to balance, and nuanced policy issues to navigate, there is an author.
The author is the core around which any well functioning Copyright Act must be constructed. Because the author will choose a path for his or her work based on the framework of laws you construct, and society will benefit – or not – accordingly.
We welcome this opportunity for a review of how the Copyright Act is serving authors, motivating the creation of new works of authorship, and the commercialization and dissemination of such works, for the benefit of our society. All three of these purposes are indispensable to a well functioning copyright system that serves consumers and creators alike. Ensuring authors feel inspired to create, that investors find value in commercializing copyrighted works and that copyright owners of both commercial and non-commercial works feel empowered and safe disseminating their works is key to ensuring an appropriate framework of laws. While the focus may begin on the author, the lives spent creating works, which enlighten, inspire, and entertain us ultimately benefit the general public and drive innovation including in media and communications technology.
It is good to begin this review with a discussion of first principles – How to discuss copyright law amicably and rationally, without resorting to rhetoric and recriminations. If the choice of the Copyright Principles Project as the theme for the hearing was for that reason, then we can agree with the drafters of that report that,
“Too much discourse about copyright law in the past fifteen years has been burdened by rhetorical excesses and an unwillingness to engage in rational discourse with those having differing perspectives. The CPP has proven that it is possible for persons ofgood will with diverse viewpoints and economic interests to engage in thoughtful civil discourse on even the toughest and most controversial copyright issues.”
Even so, the Principles Project is of somewhat limited value to illustrate best practices on a procedural basis. The Project was a self-convened effort of “law professors, lawyers from private practice, and lawyers for copyright industry firms.” We recognize that there are limits to the abilities of the conveners of this project to have reached all relevant parties, but we note, as have others, the startling absence of any individual creators or small businesses in the group convened.
The presence of authors themselves, or of those who work with them daily is important for numerous reasons. Most obviously, it is not possible to issue spot as well and to creatively address problems if you don’t understand how the framework of laws impacts an individual author’s life and livelihood in the real world. A solution to a thorny issue that seems elegant to an academic considering the matter from a distance may entirely miss the mark for a small business owner who will ultimately have to create and disseminate works within the confines of that law. In fact, the Copyright Alliance membership has benefitted immensely over the years from members educating members internally about the issues they face and the ways that the copyright laws affect each of them differently.
More importantly, however, if the author’s place in the creative ecosystem is to be preserved — this review will of necessity have to include a purely human element. To craft a truly great Copyright Act you will need to return dignity to authors, to preserve their place in the value chain and their right to set a path for their works. Unfortunately, the answers to those foundational questions cannot be found by examining the academic debates of well meaning lawyers.
1 See, e.g., Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, George Mason Law & Economics Research Paper No. 13-25 (April 2, 2013). Available at: http://ssrn.com/abstract=2243264.
2 The Copyright Principles Project: Directions for Reform, p. 3.
3 The drafters of the CPP themselves prominently note that they have not achieved consensus, and that they mapped where they “agree and where and why we disagree” Id. at 3; that “various members of the group maintain reservations and even objections to some proposals described as recommendations in this Report;” id at 4; and that the group had “strong differences on some issues” id.
4 Id. 1-2.
5 David Lowery, “Getting Copyrights Right”, Politico, May 13, 2013 http://www.politico.com/story/2013/05/building-a-real-copyright-consensus-91231.html