Back to the Never Ending Story of Copyright Law Reform

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17 August, 2017

Smart TV vector

Five years after controversial legislation was rejected in Washington, DC. (SOPA/PIPA) and in Brussels (ACTA), copyright law reform is policy-making agendas. The new proposals appear to be less directed at increasing the scope and penalties for copyright enforcement, but more at monetizing — or limiting access to — digital content. Prof. Susan J. Brison invited me to Dartmouth College to discuss copyright reform law and policy with her bright and enthusiastic students in her new course titled “Ethics and the Internet.” We discussed some of the new proposals by the European Commission and relevant committees of the European Parliament, as well as the philosophical justifications for copyright and technical realities that enable the use or enjoyment of copyright protected media. Below is a short account of what we discussed in the class.

Former proposals

The proposed copyright enforcement legislation five years ago failed, largely because they were legal adjustments with a disregard for the changing architecture, markets, and norms of media consumption (as Lawrence Lessig would explain). People wanted to download and enjoy music, books, and video on their new portable digital devices. The copyright proposals were designed, however, to make innovations into digital content less likely or attractive, forcing people to continue buying outdated and inconvenient carriers like CDs and DVDs. Expanding the scope of exclusive rights of authors was considered to be a mere profit-maximizing strategy for creatives and their representatives, which the class agreed should not be the main aim of a copyright law or policy.

What, then, should be the aim of a modern copyright policy? There was some agreement that the original aim of the US Copyright Act, “[…] to promote the Progress of Science and useful Arts […]” was still appropriate, allowing for a balance or equilibrium to be found between (monetary) incentives to create, and freedom to use, access, and build upon works, or to engage with cultural production. Given the technical realities of the Internet where media can easily be copied and distributed further, a copyright model based on access to information – rather than exclusion from use – was considered or more fruitful approach.

Discussion on current proposals

Through this lens, the class assessed some of the new European proposals that would expand the scope of exclusive rights to cover linking to academic and journalistic articles. The proposals to let newspapers or academic publishers to prohibit linking to their digitally available content, or charging for the privilege, was considered a misunderstanding of how the Internet works and what the aim of copyright is. Again, such an exclusionary or control-heavy legal approach would not be in line with technology and people’s norms, and neither would it contribute to promoting the progress of science and useful arts.

New gatekeepers to culture

In a lengthy discussion, the class noted that while emerging model of subscription-based content providers have taken away the need to download content unlawfully by offering a use-friendly service, they may also not yet be ideal. Platforms like Netflix and Spotify are now the new gatekeepers to culture — replacing movie studios and record companies to some extent —  but may offer access to incomplete libraries of content. The new gatekeepers can thereby effectively define what is watched and listened to by most people. It is clear that, in order to gain legitimacy from young people, copyright reform efforts will need to go further and deeper than enhancing the current modus operandi.

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Bendert Zevenbergen

Academic Liaison at Princeton University

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