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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:
Copyright owners have all the tools they need to go after the bad guys, and we should support them in those efforts. However, copyright owners should also support the good guys by providing reasonably priced, convenient authorized goods. If they don’t, no copyright law can help them.
HOW TO FIX COPYRIGHT
By William Patry
Oxford Univ Press, $21.95