An Intellectual Property System for the Internet Age

James Boyle

In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

The Review makes 10 specific recommendations covering patent, copyright and the policy-making process. Some examples: Patent law needs reform to prevent the formation of “thickets” that actually impede innovation, while patents should never be extended to non-technical software inventions or business methods.  We found that while patents are working well for standalone innovations, such as a particular drug developed to treat a particular disease, there are problems in technical fields marked by “sequential innovation” such as information technology.

In the copyright realm, the Review found that our system for dealing with “orphan works” – copyrighted works whose author cannot be found – is broken.  As a result, a vast swath of twentieth century culture languishes in our libraries, commercially unavailable and with no one who can give permission for reproduction or republication.  It proposes a solution involving a mixture of collective licensing and individual exemptions so that national libraries and individual enthusiasts can digitize the nation’s culture.  At the moment, copyright law operates as a one-way valve, locking up these portions of our collective heritage while providing a benefit to no one.  Fixing this problem, the Review notes, has no economic downside whatsoever.

Copyright is supposed to make, not to break, markets.  Yet the Review found that innovative digital businesses were strangling in the tangled web of licensing copyright has created.  As technologies have developed, copyright has created right after right to deal with them, each jealously guarded by its own collection society.   Pity the poor entrepreneur who wants to create a new legal business and finds that technological happenstance means multiple rights are involved.  This is good for no one (except the middle-men.)  The Review suggests that Britain needs to seize the leadership role and become the center for a frictionless, radically simplified, licensing market.

More broadly, the Review argues forcefully that in the future, British intellectual property policy should be evidence-based. As opposed to what, you might ask.  Astrology-based?  Bizarrely, evidence-based policy is a rarity in the world of intellectual property, while intuition, celebrity endorsement and anecdote run rampant. The Review argues we need to junk this method of doing business and base policies on transparent and rigorous economic methods and not, to use its phrase, “lobbynomics.”

The Review noted that there was a pattern of dysfunction in the way policy had been made; rights had been extended despite clear evidence that this provides no economic benefit, such as retrospective copyright term extension, while reforms languished despite the obvious irrationality of some aspects the current system, such as orphan works.  Its conclusion is striking.

“Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. Further distortion arises from the fact (not unique to this sector) that there is a striking asymmetry of interest between rights holders, for whom IP issues are of paramount importance, and consumers for whom they have been of passing interest only until the emergence of the internet as a focus for competing technological, economic, business and cultural concerns.”

Whether this Review and the revised institutional arrangements and evidence-based focus can fix that problem is another question.  But at least the problem has been identified.

The issue that attracted most attention was David Cameron’s suggestion that Britain might adopt a “fair use” limitation on copyright, like that of the United States, which could adapt to new technologies and kinds of use.  This prompted a deluge of submissions from businesses claiming that a fair use standard would destroy the UK creative industries; curious given the flourishing state of the US creative economy.  In the words of the Review, this success “does not stop important American creative businesses, such as the film industry, arguing passionately that the UK.. should resist the adoption of the same US style Fair Use approach with which these firms coexist in their home market.”  As an expat Brit, pride in my countrymen’s use of irony has rarely been higher.

In any event, the Review took a different tack.  First, it notes that “fair use” is only one out of many limitations that allow US copyright law to adapt to new technology while still protecting creators.  The question is how to get those same benefits in UK law.  Submissions to the Review were divided on the question of whether EU law would allow the UK today to adopt an open-ended exception to copyright such as fair use.  As a legal scholar, I was impressed by the arguments put forward by Cambridge professor Lionel Bently that EU law would permit such an approach, but the Review’s legal advisors disagreed.  Significantly, the Irish government has just announced a similar review to see if its copyright laws need a fair use provision.  We shall see if it comes to the same conclusion.

The Review’s approach was a multi-part strategy.  First, it favours a bevy of individual limitations – maxing out the exceptions permitted by EU law.  Private individuals should finally be able to format shift content they have bought.  There should be a broad exception for archival copying.  Copyright law should no longer impede scientific research by blocking text and data mining of the scientific literature.  Parody and criticism should receive more robust protection.   But what of the effect of copyright on disruptive technologies?  Here the Review favoured an EU wide approach, and one with teeth.  “The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies… The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.”

When I accepted Baroness Wilcox’s invitation to join the Review I was told that advisors would not be held out as agreeing to all of its conclusions.  That was fair and I don’t.  The section on enforcement, for example, pulls back from the obvious conclusion to its analysis: radical private enforcement measures like the Digital Economy Act are deeply problematic.  Still, for anyone who cares about fostering innovation while protecting creators?  The Hargreaves Review is worth a read.  In the short run, the fact that it actually “names” the dysfunctions of our current policy process will cause high blood pressure for some.  But in the long run, I think the streamlined, low transaction cost, evidence-based intellectual property system it suggests – a world with fewer patent thickets, fewer orphan works, fewer examples of copyright breaking instead of making markets – will actually be seen as profoundly positive not only for society, but for digital businesses themselves.

James Boyle is William Neal Reynolds Professor of Law at Duke Law School.  His most recent book is The Public Domain: Enclosing the Commons of the Mind.

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A pdf of the book is available here Save it to your hard drive and then open.  It will ask you for permission to see it full screen, which you should grant.

When Keith taught ‘em, they stayed taught.

RIP Keith Aoki 1955-2011.

Keith, Jennifer Jenkins and I created Bound By Law together.  A comic about the apparently unsexy topic of copyright law and fair use, it has sold thousands of copies and has been downloaded — for free — by more than 500,000 people worldwide.    Most law professors are lucky if their work is read by a few hundred.  Keith’s artistry meant he could reach hundreds of thousands, and could teach them about law and creativity in the process.

It is hard in a few words and pictures to convey the sheer scope of Keith’s work.  Have you ever heard about so-called bio-piracy — the taking of plant genetic resources from the developing world that are then tweaked, and layered with new intellectual property rights?  Keith wrote the book on it.  Literally.  Or did you ever wonder if aesthetics — particularly changing ideas of architecture and urban planning — had a political effect on housing patterns and segregation in American cities?  Think it would be kind of cool if someone wrote a  history of that?  Someone did.  It is called Race, Space and Place.  And it is by Keith.  Oh, and hey, it would be great if someone documented the rise of “regionalism” in US immigration politics — like the Arizonan immigration legislation.  You might want to read “Welcome to Amerizona: Immigrants Out!” Guess who wrote that. While you are at it, you could also read about critical race theory, or the distributive effects of intellectual property, or open source plant development. How about a critical  analysis of the politics of farm labor?    Try  “Pastures of Peonage?: Agricultural Concentration and Labor Migration: The Case of North America in the Early 21st Century”  Asian American electoral participation in 2008?  Keith’s got that covered too.

The thing is, I haven’t even scratched the surface.  Keith’s work is so much broader.  And it was passionate work.  Keith cared about injustice, about exclusion — something he understood on a visceral level.  Unlike some people who are great at the rhetoric of equality, but terrible at the practice, Keith’s personal behavior was a complete mirror of his political views.  He was such a gentle, decent man.  He was so humble that he treated everyone as if they were not only his equal, but practically his senior.  As I write this, I am getting e-mail after e-mail from junior scholars who explain that they just have to write to me, to contribute to this fund, because they met this really incredible guy once, or a couple of times, and they — somewhat in awe of attention from this very distinguished senior person — instead found themselves being treated with incredible kindness and respect, offered help, given advice and assistance. In the world of academia, that kind of conduct is sadly rare. As one person wrote “On numerous occasions, Keith was very kind to me for no apparent reason, i.e., I hardly knew him and there was no apparent self-interest.  Though our acquaintance was brief, I would like to do something.”  I have had 20 e-mails like that this morning alone.

Keith wasn’t just an incredible scholar.  He was also a musician.  A  good one.  See the young guy at the bottom of the picture?  That’s him in Chameleons — a really interesting 80’s art rock band.  Keith Aoki, violin and guitar.  Later in life Keith would play bass in the Garden Weasels — which he with typical self-deprecation — described as “ok for a band made up of law professors.”

I knew Keith as an academic and respected him — he was a major presence in intellectual property law alone, let alone all of the other areas in which he wrote.  I helped him become an academic, offered him advice on his early work, and watched with delight as he opened his wings and soared — all the while insisting to all around him, apparently seriously, that he knew he was really an impostor in the world of academia, a fraud, an interloping artist who would be discovered any moment and given the old heave-ho.  He really never knew how much he was respected as a scholar and an intellectual.  But if I have a particular insight into him and his work, it is his artistry — something that many of his colleagues know little about. [Edit -- in the comments, John Perry Barlow inevitably says it much better than me.  To be a scholar of a subject -- a great one --  but also to be able to draw comic books on the same theme?  "There was no one even remotely like him. It was as if Feynman had produced comix about quantum physics."]

For some people, I am sure, Keith’s comic books seemed like a diversion from his true intellectual activities.  I have to admit, though I loved comic books as a kid, I once probably shared that feeling.  Nothing could have been further from the truth.  First of all, there was the sheer depth of Keith’s artistic references.  See the way the silver surfer emerges from a wave? Notice the stylized foam?  (click the image to see it larger)  That is a perfect rendition of Hokusai’s “Great Wave off Kanagawa” one of Japan’s most famous paintings from the early 19th century, slyly inserted into a panel about a documentary on surfers. Other references were more familiar – and just as brilliant in their evocation of the emotion, or the intellectual point Keith was trying to convey.

Jennifer, our coauthor, described it thus

“Sheer, playful, delightful talent – what Keith could do with a pencil or pen, the ways he transformed ideas into those stunning images, each with a unique Aoki imprint, every one was a new gift that you would need time to savor and get to know and Marvel at. In his Animated mind that Aoki library of influences, adored, stacked, sifted, understood, as only he did- “well, what I was thinking was, Jamie and Jennifer, this would be like Jamie Hernandez…., Robert Crumb,….. Jack Kirby”; it went way beyond that, this movie, that book, the whole corpus of the art history canon, or the obscure gem in that dusty corner, this perfect reference no one without his Escher scaffolding and 4D Rosetta Stone could have summoned.”  And oh, there were so, so many references.  You need to read the whole thing to realize.

The thing is we were a team. Working on our new comic on musical borrowing, we’d have these astounding Skype calls in which we’d design the pages, there would follow 30 indescribable minutes of complex musical history, copyright law,  culture jamming, and Keith would draw them.   Ever imagine having a brilliant genie to whom you could say, “Hey, give me a version of Delacroix’s Liberty Leading the People that comments on the downloading war. I’d like a lawyer and a downloader locked in battle, tuning forks instead of muskets, USB keys instead of pistols.  Oh, and make it REALLY beautiful…”

Well if you can imagine that, you can imagine working with Keith, who produced this…  colored by our brilliant colleague Balfour Smith.  Keith “I’m a monochrome guy.”  More humility.  And Keith produced such stunning images.  There were the superb — almost eerily perfect — evocations of famous rock stars. The hilarious visual puns.  Why shouldn‘t Larry Lessig be the Statue of Liberty, leading a lost tribe of remixers to a new land? And imagine what it felt like when Jennifer and I proposed that image to him.. and the text “Give me your Wired, remixing masses, yearning to be free” and got this in return.  When Larry stepped down as chair of Creative Commons, I gave him a poster of that drawing.  I didn’t think to ask Keith to sign it because — hey, it was Keith.  I thought we’d have unlimited time to celebrate his genius.  Time makes idiots of us all.

I don’t know how we will finish the music comic now. Keith told us he wanted to finish it as his memorial — during a surreal Skype call in which he told us of his diagnosis as an apology for not having finished the most recent round of drawings.  Of course, being Keith, he was convinced he could still manage to finish the comic despite his illness.  He said he might have a year.  He swore us to secrecy, of course, not wanting “to be a burden.”  Two weeks later he was dead.  We will try to finish it — how can we not?    But how to replace the irreplaceable?  I had not previously understood the power of the mundane metaphor “heartbroken.”  Our hearts feel… broken.

Keith was fond of sly references.  In his latest article — a comic forthcoming in the Ohio Northern Law Review – Keith’s character, the same one pictured at the top of this blog post, wears a T shirt with an ever changing slogan.  The final three panels are these.

Look  closely at the T shirt.  It says “You Can’t Avoid the Void.”  And we can’t — any of us.

This is what one of the people contributing to the fund for his daughters wrote.  “But  mostly I remember how you and Jennifer would light up when describing  your work with him–and what a cool, and daring, and brilliant idea I thought it was for you to join forces with the one-and-only-comic-book-artist-slash-copyright-scholar. I suppose that’s saying something when someone’s light shines so brightly even as reflected on other people’s faces.”  That was Keith.  No, we can’t avoid the void.  But some of us shine so very, very brightly that the shadows are dispelled — at least for a while.

Scott Turow is an author. I am extremely partial to his work. Presumed Innocent is as classic a murder mystery centered on a trial as one could wish. As far back as Mr Turow’s precocious account of his first year at Harvard Law School, One L, flashes of the talent to come were on display.

Under the law that existed until 1978 . . . Works from 1954

(Images from Wikimedia Commons)

Waiting for . . . Waiting for Godot and Lord of the Flies, The Doors of Perception, Rear Window, Seven Samurai, Creature from the Black Lagoon, the first issues of Sports Illustrated, Horton Hears a Who! . . . . [1]

Current US law extends copyright protections for 70 years from the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1954 would be passing into the public domain on January 1, 2011.

What might you be able to read or print online, quote as much as you want, or translate, republish or make a play or a movie from? How about William Golding’s Lord of the Flies? Golding first published Lord of the Flies in 1954. If we were still under the copyright laws that were in effect until 1978, Lord of the Flies would be entering the public domain on January 1, 2011 (even assuming that Golding or his publisher had renewed the copyright). Under current copyright law, we’ll have to wait until 2050. This is because the copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as this). All of these works from 1954 will enter the public domain in 2050.

Read the rest, here

Fantasy and Reality in Intellectual Property Policy