On March 27, Microsoft’s Innovation & Policy
Center hosted a
discussion focused on whether current copyright law properly balances the dual goals
of the Constitution’s IP clause to incentivize creation and to properly protect
authors’ works. And, how that balance has and will continue to benefit
consumers. Overall, the panelists agreed that the Copyright Act has been
successful in striking this balance, as evidenced by the great wave of new
distribution technologies and business models that have emerged over the past
few decades and the corresponding continued production of quality content by
authors. However, panelists noted that this healthy environment could only
continue to thrive if copyright is understood and respected by all parties in
the copyright ecosystem.
Microsoft’s Tom
Rubin, Chief IP Strategy Counsel, moderated a panel that included Joe Keeley, Majority
Chief Counsel, Courts, Intellectual Property and the Internet House Judiciary
Subcommittee; Shira Perlmutter, Chief Policy Officer and Director for
International Affairs at USPTO; Troy Dow, VP and Counsel, Government Relations
and IP Legal Policy and Strategy at The Walt Disney Company; Mitch Glazier,
Senior Executive VP of the Recording Industry Association of America; and
Sherwin Siy, VP of Legal Affairs at Public Knowledge.
The discussion
began by reviewing the status of the comprehensive Copyright Act review announced by the Senate last spring, which is
currently underway. Mr. Keeley emphasized throughout the discussion that the
review of the law must be holistic and forward thinking, given the
technological convergence and rapid innovation characterizing the copyright
sector today.
Next, Shira
Perlmutter discussed the multi-stakeholder reform process the Copyright Office initiated
last year. The process began with a green paper released
last July, which considered issues arising due to new digital technologies, and
whether existing rights and exceptions are capable of addressing such issues.
In areas where the law and marketplace practices seem mismatched, the paper
considered whether legislative or other reforms would be necessary to promote
continued development of the digital marketplace. Ms. Perlmutter emphasized the
importance of non-legislative reforms to confront certain issues, including the
DMCA’s notice and takedown procedure, and to address this issue she proposed a multi-stakeholder
approach. Ms. Perlmutter stated the goal of this process would be a code of
conduct or voluntary industry ‘best practices’ agreement.
Then,
representatives from the software, video and television, and music industries
discussed how copyright law and policy can both benefit consumers and enable
innovations that promote access to works. Victoria Espinel noted that perhaps
the most important, and exciting, development that software has enabled is the
change in how consumers interact with content. Today software allows anyone
with a phone or computer to be a copyright creator. Troy Dow stated that these
and other innovations have benefited consumers by meeting their rapidly
changing demands to be creators, or to access content anywhere, anytime. He
noted that keeping pace with consumer demands by making content available on a well-timed,
well-priced basis is the best way to disincentivize and prevent piracy. Mr. Dow
also observed that copyright protection allows creators to take the required
risks to find out what content consumers want, since more than half of all
businesses, artists, or other ventures fail.
Mitch Glazier
provided an especially interesting perspective, given the drastic and constant
changes the music industry has confronted over the past 40 years. Mr. Glazier
stated that copyright should get more credit for being the fundamental
foundation for innovation. He explained how content drives the sale for technologies
and devices, and that without copyright protection, patents would not be as
important. He emphasized that copyright is often viewed as an inhibitor, but in
fact, copyright enables creators to make compelling content by balancing
incentives with protections.
Sherman Siy
advanced an alternate view of copyright, arguing that the exceptions and gaps
in copyright law, rather than the protections, are what incentivize innovative
uses of content and technological developments. However, representatives from
the software, movie and television, and music sectors seemed to agree that
copyright protections and the exclusive rights granted to authors of works are
what have enabled the risk-taking and innovation in copyright-driven
industries.
Victoria Espinel
in particular made an important observation. She found that there is a view
that copyright has not kept up with the times, and the public’s perception of
copyright has deteriorated. She explained that changes in technology and
consumer behavior and the trend toward digital disintermediation have enabled
consumers to be creators. As creators, consumers must understand law, whereas
in the past institutional actors like record labels or movie studios were the
only parties who really had to understand the law and its implications.
Ms. Perlmutter
advocated the importance of educating the public and promoting awareness of
copyright law and its benefits. She and Ms. Espinel agreed that consumers have
a real role to play in determining how to reform copyright law and policy. Ms.
Espinel emphasized the importance of garnering respect for copyright from
consumers and institutional actors alike. Although the copyright marketplace is
currently characterized by constant and rapid changes in technology, business
models, and consumer behavior, copyright protection is still utterly relevant
and important to the continued development of this vibrant sector and to
maintaining the proper balance of promoting creation and protecting authors’
rights.
Free State
Foundation scholars agree that retaining a strong IP system will provide incentives
for creation of both content and distribution platforms and technologies, which
is why we are in the process of publishing an ongoing series of papers
exploring foundational principles of intellectual property. The five papers in
this "Perspectives from FSF Scholars" series published to date are
listed below:
No. 1: The
Constitutional Foundations of Intellectual Property, by Free State Foundation President Randolph
J. May and Research Fellow Seth L. Cooper
No. 2: Reasserting
the Property Rights Source of IP, by Free State Foundation President Randolph J. May and
Research Fellow Seth L. Cooper
No. 3: Literary
Property: Copyright's Constitutional History and Its Meaning for Today, by Free State Foundation President Randolph
J. May and Research Fellow Seth L. Cooper
No. 4: The
Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property
Rights, by Randolph J. May and
Seth L. Cooper
No. 5: The
"Reason and Nature" of Intellectual Property: Copyright and Patent in The Federalist Papers
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