I hate to think how long ago I went to Bill Patry's Stewart Memorial lecture, found it disappointing, blogged to that effect, and some months later received an email from him saying he was sorry but I had missed the point. As the bard sang, I was so much older then, I'm younger than that now. I took exception to his treating copyright as a metaphor, because statute told me it was more than that. Now I understand how true what he said, back in 2007, was.
He still has much to say - critical stuff - about the way copyright laws are made. This evening, at the end of a day spent going from one copyright audience to another (sadly I missed a breakfast event, my running injury making travel earlier in the day out of the question) he was hugely complimentary of the evidence-based approach which supposedly informs all UK IP policy (and Prof Hargreaves was in the audience to hear him say so). Sir Robin Jacob, playing the chat show host to Bill Patry's guest, challenged him on what this meant, and we were treated to a lively discussion which I shall have to write up later, having spent half an hour exploring the limitations of the virtual keyboard on my office Playbook and only managed to produce this much.
I wondered where the introduction to his talk was taking us - especially after Sir Robin suggested that after a 15 minute opening he'd start asking questions: not very long to lay out what you have to say, and thankfully Mr Patry took about twice as long as that, so the introduction had settled into its context in good time. It was, however, given the title of the event ("What would leadership in copyright policy look like?"), appropriate to explore notions of leadership, even in the strained terms in which the expression is used in the US Congress.
The introduction led to the way copyright law - indeed, almost all law - in the US is made, coming not from the executive branch but from Congress, and in the case of copyright from the Judiciary Committees. Not, I admit, a matter to which I had ever given much thought: the differences between the US system of government and ours are greater than I'd really appreciated. He talked about regulatory capture, and gave examples of how it affected the way that the law was made - the DMCA being a paradigm example to illustrate many of his points, with the Commerce Committees prevailing on the issue of safe harbors.
Copyright law, if I understood his thesis correctly (and perhaps he'll correct me if I am wrong!), is a product of ideology, or one might even say religion, rather than a rational process based on evidence. Legislators do not want to understand what the evidence suggests. I think there are plenty of instances of laws being made as a knee-jerk reaction to the pressures from lobbyists. Is that not how we came to have such a disastrous law on design protection, which the Hargreaves Review criticised as being no use (I paraphrase) to the design industry? Perhaps, but it suited the car spares industry in 1988 and they were the ones making the noise! It even flew in the face of the evidence - I remember Ford making a presentation to MPs, showing how an infringing, or spurious (or, in Ford-speak, counterfeit) bonnet (hood, if your preferred language is American English) could decapitate the occupants of the front seats in a head-on accident because, unlike the original, it was not designed to fold in the same way, or even at all. There's no shame in not knowing everything, Mr Patry told us - oh, if only I'd been told that back in the late 80s - and legislators, leaders, have to be prepared to learn. Indeed: lobbyists consider themselves to be the source of information for backbench members of parliament.
The laws that the lawmakers make must be ones that people are prepared to obey. The top down approach has never worked, he said, ever since the Ten Commandments. The rules have to match the way people want to behave. Indeed. Our previous government - not that I notice the Coalition doing much different - put in place a vast body of laws that people see no need to obey: legislation clearly has not stopped drivers using handheld mobile phones. The sheer volume of legislation calls the legitimacy of the government into question, makes low-level law-breaking routine, an accepted form of behaviour. Witness
this from the excellent Charles Crawford's Blogoir.
Examples of IP legislation that lack legitimacy because they are so far removed from ordinary human behaviour - because they are not based on evidence - include ACTA and, in the US, SOPA. The US lacks the evidence-based approach to policy recommended by Prof Hargreaves: so does most of the world, including the EU. As Sir Robin observed, EU copyright law emerges from a very untransparent (sic, but an excellent word for it) process.
So, if the purpose of copyright is to encourage the creation of more works, using the "but for" argument that without copyright the supply would be sub-optimal, we need more. But does the evidence bear this out? Does extending the term of protection lead to the creation of more copyright works? Of course not, especially by dead authors. Does extending protection to mundane stuff like business letters increase human happiness? No, they exist for reasons quite unconnected with copyright. This evidence-based approach argues (to my mind, anyway) for a drastic reduction in the scope of protection - for an originality test which requires the author's own intellectual creation, for one thing.
There is an evidence base for a lot in the copyright field: it is the low level of renewals after 28 years that took place in the US, before it acceded to Berne and fell into step with the rest of the world - which perhaps looks now increasingly like the wrong way for the countries of the world to get into step. Mandatory formalities, including renewal, separated the wheat from the chaff - even if the renewal fee were only $3 it would ensure useless copyrights withered away. The system we have is an ideological, or religious, approach which obliges people to have copyright whether they want it or not - an approach which Mr Patry traced back to Rousseau, opening up a whole new line of reading for me - time to visit Project Gutenberg with my Kindle again, another topic which came up in the course of the evening ...
A fantastically thought-provoking evening. Someone needs to do the same for trade marks - and I might try to make a start: do they satisfy any sort of evidence-based policy? As for Party on copyright, I've bought a copy of "How to Fix Copyright", just out from OUP, had it autographed by the author, and will let you know what I think of it when I have read it - soon(ish). I expect it will be excellent.
Posts
