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Summary:

Copyright law can be a dry and wonky subject. Yet it often triggers the raw emotions that come with a debate over immigration policy or Tim…

How to Fix Copyright

Copyright law can be a dry and wonky subject. Yet it often triggers the raw emotions that come with a debate over immigration policy or Tim Tebow.

Content owners fuel the “copyfight” by saying their critics are pirates and criminals. Reform advocates return the favor by calling strong copyright advocates fascists and worse.

That why is people like Bill Patry are so welcome in the debate. As former copyright counsel to the US House of Representatives and the author of a definitive textbook on the subject, Patry has the gravitas to stand above the fray and push it in a new direction.

His new book How to Fix Copyright aspires to do just that and in many ways it succeeds. Part legal theory and part cold business advice, Patry’s work sums up nicely where we are in the copyright mess and lays out some useful ideas about what to do next. (Patry is now counsel for Google (NSDQ: GOOG) but the book is an independent project).

The book’s opening chapters will be familiar territory to those who know about the copyright regime’s breakdown in recent decades. The breakdown, fueled by the transition from analog to digital content, is reflected in everything from lawsuits over hip-hop sampling to restrictions on text-to-speech options for the blind.

While recounting current issues, Patry also draws on the history of bookselling to show the paradigm shift that underlies the copyright crisis: a legal system designed to protect copies doesn’t work if an infinite number of copies can be made at no marginal cost.

He also suggests what content owners can do in response to this loss of control over copies. In the book’s most intriguing idea, he suggests that piracy should be re-conceived as a pricing problem:

In the world of digital abundance, to make money you have to sell copies for lower prices, and not as, in the world of analog scarcity, sell fewer copies for higher prices … the underlying issue is pricing not technology.

Content owners have already been quick to blast Patry as indifferent to the unauthorized file-sharing that is taking place in books, music and movies. But How to Fix Copyright offers convincing evidence that the answer to piracy is more authorized copies rather than stricter enforcement regimes.

He cites examples involving NBC (NSDQ: CMCSA), iTunes and Hulu to show that making content available will drive overall sales. The book suggests that piracy is largely limited to younger males while the general public simply wants an easy way to buy the product (authorized copies will even drive sales among alleged pirates).

Patry’s case is especially convincing when it comes to overseas markets. He explains that Bollywood’s success is driven by a pricing strategy in which hit DVD’s of hit Indian films cost a CPP-adjusted US$2.12 while Hollywood hits are sold for the equivalent of $635.

Such accounts are helpful in trying to parse a copyright debate that is typically flooded with misinformation. As others have shown before, many of the “piracy” figures cited by industry and even top government officials are trumped-up nonsense.

Or, as Patry puts it, “What we have now is policy motivated evidence-making, not evidence-based policymaking.”

The author also drives home the point that no law will re-create demand for an exhausted product cycle. But he does offer specific areas where the law can and should be reformed.

Here are some concrete examples:

  • the reimposition of a copyright renewal system so that valuable works can be protected and the rest returned to the public domain
  • a global one-stop database of registered copyrights that provides quick and easy licensing
  • flexible copyright limits based on the type of work — ie shorter for books and longer for movies.

Patry told his publisher that he didn’t want How to Fix Copyright to contain a pat final chapter offering an easy take-away of his idea. Busy executive types, though, can get the main thrust of his business ideas by reading the short chapters entitled: “Law is not the solution to business problems,” “Abandonding exclusivity and getting paid instead” and “Effective global copyright laws.”

Other parts of the book, especially Patry’s take on metaphors and legal deterrence, are equally valuable but may be better suited for the law school set.

If the book has a shortcoming, it is Patry’s failure to offer a political strategy for implementing his ideas.

He makes a convincing case that content owners confront a business rather than a legal problem. But recent events in Washington show that content owners are doubling down on new enforcement laws all the same — suggesting the copyright breakdown is also a political problem.

Patry does describe the lobbying industry that has grown around copyright law. But he does not address how liberal Hollywood’s money combines with conservative property ideals to give “strong copyright” such bipartisan appeal.

Instead, Patry settles for the occasional cheap shot at Republicans, a move that will tickle the converted but will not lead to widespread adoption of his very sensible ideas. In a future work, perhaps Patry will share some strategic advice based on his experience working for Congress.

Overall, though, this is a minor quibble. The book has more economic and policy chops than others in the field and, thanks to Patry’s fine writing is immensely readable. His conclusion sums up well what content owners should do as they search for digital dollars:

HOW TO FIX COPYRIGHT
By William Patry
317 pages
Oxford Univ Press, $21.95

  1. Jeff, thanks for the thorough review. I agree that forming a political strategy around a thoroughgoing copyright reform is a tough sled. Canada, for example, has been trying to make amendments for quite some time, although the UK is making some efforts in this behalf. The overall approach I think is clear: the public has to be brought in to the process and the process has to be both evidence-based and transparent. Lest one think this is pie-in-the-sky, the process that led to the passage if the 1976 Act was pretty darned good.

    On one point I strongly disagree with the review: the allegation that I take occasional cheap shots at Republicans. I don’t any shots at Republicans at all, nor would I want to. The book is quite complimentary of the conservative economics of Hayek and von Mises, just like Moral Panics relied heavily on Joseph Schumpeter. My economic politics lean toward these Austrian scholars rather than liberals such as Robert Reich.

    Perhaps what you are thinking of is my criticism of trickle-down economics and the reduction in marginal tax rates. I am critical of these, but these criticisms are shared by across a number of sections of the political spectrum (although not all to be sure). Importantly, as you fail to note,  I point out on page 100 that Bill Clinton’s approaches to these issues “were no different” than those of his Republican predecessors and successors and that the steepest increase in income redistribution favoring the 1% occurred during Clinton’s presidency. Those who read pages 107 to 113 will see that there are no cheap shots taken against anyone, and certainly nor based on party. For the record, I am a registered Independent.

  2. Kitzinger Dávid Monday, January 16, 2012

    Without reading the detailed argument in the book it seems that Bollywood type of pricing is only an available option on huge markets. Authors and producers of small market products wouldn’t be able to survive because of insufficient market size. ICT induced pricing models support the best selling few and probably subculturs of huge language communities. I live in a small country of 10 million. Moreover, in the current information noise i would not want to have everything for almost nothing. 
    Anyway I have to buy this book. 

    1. Hi David, yes, I agree that pricing for small markets may well be different depending on the costs of production. One example of this is an imported classical music CD I just bought today for a friend at about $45, a very very high price. But I loved the CD and wanted her to have it, so I paid the price. But CDs are on their way out, for better or worse (as an audiophile I happily pay extra for SCAD versions when available), and electronic versions are much cheaper to produce and sell, regardless of the size of the market.

      1. Jeff, I wanted to add a thought on your report that some content owners think I am indifferent to the economic consequences of file sharing. I am not indifferent. The very book being reviewed has itself been subject to unauthorized file sharing even though anyone can get an authorized eBook version for $9.99. That someone went to the trouble to get an authorized version for $9.99 and then make it available to the world for free illustrates that pricing is not the solution to everything, nor do I claim it is.

        I am also very aware of changes in the way people interact with cultural works, with especially music, and that not all of that change is positive. Sunday I took my ten year old daughter for a klezmer clarinet lesson in Queens, about a 50 minute drive each way. We do this one a week, although she takes lessons with two other teachers who are about the same distance away from our house. The other two lessons are classical music, and we as a family buy a lot of sheet music and CDs. My daughter’s clarinet teacher has two CDs out, and we love them. I was asking her if she was going to put out a third CD and she said no; it was too expensive to do, and besides, people don’t really listen to music they way they used to. She said she used to make her grocery money from CD sales, and now can’t. She makes most of her money (and that is not much) playing at weddings and bar mitzvahs. Other performances don’t pay much. She lives in a 500 foot apartment with spare furnishings, and is a wonderful musician with an impressive classical training. She is struggling to make ends meet. I hear similar stories often, from my clarinet repair person (also in Queens) who repairs woodwinds and brass for many NYC studio and jazz sidemen (and women). I have friends who play in classical orchestras who need to work as many side jobs as they can too. Alas, cracking on file sharing is one route — but it is not the only, and maybe not the most important for the 99%. We need to find a way to fund culture that ensures a diverse society can flourish. 

  3. iCopyright.com Tuesday, January 17, 2012

    One of the things we have learned over the last 12 years of providing publishers with automated licensing and compliance tools for their content is that the “sharing” culture of the web actually increases copyright awareness and compliance. If sharing for non-commercial purposes is free or ad-supported, with cross links to instant licensing and compliance for commercial purposes, the vast majority of users will do the right thing and use the content in a way that honors the owner’s copyrights. However, if the “share” button does not include cross-links to paid licenses, people assume the content is “free” for all purposes. Otherwise, why would the publisher have provided “share” buttons. It is typically poor messaging and implementation by the publishers themselves that leads to copyright confusion and infringement. Give people an easy and instant mechanism to share AND license the content legally and most will.

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