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Why the Republican Policy Brief on Copyright Should Have Been Withdrawn

Robert Edmonds

On November 16, the Republican Study Committee, a caucus of conservative Republican members of the U.S. House of Representatives, inadvertently released a policy brief entitled "Three Myths About Copyright Law" which was quickly withdrawn. Of course, as a work of the U.S. government, this document does not itself enjoy copyright protection, so it is widely available on the internet through groups like The Internet Archive project.

The paper was widely and uncritically praised in the tech press as "shockingly sensible" and "surprisingly awesome" by outlets deeply critical, and rightly so in my opinion, of the excesses committed by copyright holders. When the RSC withdrew its brief with the statement that it had been "published without adequate review", the tech press immediately jumped to the conclusion that the retraction had been forced by pressure from Hollywood lobbyists.

While there are some good proposals in the withdrawn document, notably the first three proposed policy solutions, I have no trouble believing the Executive Director of the RSC when he states that the document did not receive adequate review. The tech press has been entirely too uncritical and conspiratorial in their coverage. Here are three arguments in favor of the withdrawal of the document:

Draft quality

The first is that the document is clearly a draft. There are several jarring typographical errors and writing quality issues that would normally have been cleaned up before an intentional release. The ones that immediately stuck out to me: "Copyright Action" should have been "Copyright Act"; "maxim" was misspelled "maximum"; dubious use of the "R-word" to mean the impedance of progress. And a more rounded paper would probably have omitted the extended discussion of mixtape culture in favor of more background information on such an esoteric subject as copyright law. These are minor things to quibble over, but I do so in reaction to the tech press's assertion that this paper was not an unreviewed draft. It's clear from comparing this document to others on the RSC website that it did not receive the customary amount of polish.

In one section of the paper, the author gives a rather outlandish hypothetical involving Nazis to demonstrate how claims of copyright infringement could lead to the suppression of "legitimate journalism". Facetiously, one might observe that political discourse in the U.S. reserves comparison to the Nazi regime for apocalyptic outbursts and ad hominem attacks. Such a reference is out of place in a public policy document, and the online world treats such arguments in a considerably more laconic and derisory fashion. More fundamentally, copyright law doesn't work this way. Entire books on this topic have been written by investigative journalists about legendarily litigious institutions without eliciting a dubious copyright gag strategy. Also, the publication timeline in the paper's Nazi memo hypothetical isn't entirely clear. Copyright doctrine distinguishes between the initial act of publication and later re-publication. Intriguingly, the copyright protections that may have been afforded to unpublished, unregistered WWII-era documents were abolished by the 1976 Copyright Act.

Conflict with international treaties

A second argument in favor of withdrawal is that the paper proposes a radical rewrite of U.S. copyright law that would conflict with international treaties, without presenting an overwhelmingly compelling argument for doing so. (In fairness, I don't think the paper's author actually realized this was a consequence.) The paper narrowly compares current U.S. copyright law to that of the 1790's and almost entirely ignores how and why the law evolved and the negative implications for replacing current law. In particular, except for a brief reference to Great Britain, the paper ignores the international trade in copyrighted works. I'm thinking primarily of complications with the Berne Convention, a now almost universally agreed 19th century multi-lateral copyright treaty which the U.S. did not join until 1988. In that year, the U.S. House reported favorably on joining the Berne Convention, echoing the utilitarian calculus in the U.S. Constitution's Copyright Clause, but in an international setting:

The benefits of the legislation will be multifold. United States adherence to the Berne Convention will establish multilateral relations with twenty-four countries with whom such relations do not currently exist. Further, U.S. membership in the Berne Union is a part in the larger picture of reform of our trade laws, as the Berne standards, it is hoped, will ultimately serve as standards for the General Agreement on Tariffs and Trade (GATT). Since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage. Moreover, the legislation is rooted in the proposition that the United States can join the Union while maintaining a strong and vibrant Library of Congress, which of course serves the public by being a depository of our cultural heritage. Last, by placing American copyright law on a footing similar to most other countries, especially in the industrial world, our domestic law as well as the international legal system are improved. The net benefits will flow to American authors and to the American public.

Whether you believe such justifications or not, the Berne Convention requires a minimum copyright protection term (generally, life of the author plus fifty years), and prohibits formalities such as registration in order to secure the rights guaranteed by the treaty. The proposal in the withdrawn paper violates both of these provisions and if implemented would take the U.S. out of compliance with the Convention, which would probably invite odd forms of retaliation, like Antigua's claim to trade sanctions denominated in dollars of U.S.-copyrighted works. A thoroughly vetted copyright reform proposal would at least take cognizance of the international issues involved in making modifications to existing law.

Conflict with conservative Republican philosophy

The third and most convincing argument for the RSC's unforced withdrawal of this paper is that it contravenes conservative Republican philosophy. One of the proposals in the paper drastically reduces the duration of copyright protection and institutes a "fee" on renewals justified with the following reasoning:

Current public policy should create a disincentive for companies to continue their copyright indefinitely because of the negative externalities explained in this paper. Unlike many forms of government revenue, generating revenue by disincentivizing activities with negative externalities is one way for the government to pay for its operations. This is a far superior way for the government to generate revenue rather than having a tax system that disincetivizes [sic] work.

The paper's proposal on copyright registration would charge a percentage of "revenue" (presumably the revenue gained from licensing of copyrighted works and the sale of copies, though precise details of what would count as "revenue" are not spelled out) in order to obtain copyright protection for a work beyond an initial 12 year period. The document refers to it as a fee, but it in fact would be a Pigovian tax, if we accept the contention that copyright abuses are negative externalities. Conservative Republican economic philosophy hardly acknowledges the existence of negative externalities and certainly does not contemplate curbing them through taxation. Conservative Republicans are usually opposed to Pigovian taxes, such as gasoline taxes to fund public transit, cigarette taxes to fund health care, or carbon taxes to combat global warming. Additionally, the mandatory registration of all newly copyrighted works in the proposal would of course require more bureaucracy to implement.

As a practical matter, it's unclear how such a system would treat software, especially open source software like the BIND DNS server or the Linux kernel where the complete work is an accretion over many years of many copyrighted changes by multiple copyright holders. Does the 12 year term cover the most recent release, or the earliest release, or is there an overlapping set of 12 year terms covering each published change? For reference, the Linux kernel code base has seen about 50,000 individual published changes (or "commits", in technical jargon) this year alone. It is difficult to imagine Linus Torvalds filing hundreds of thousands of copyright registration forms with the U.S. Copyright Office in order to avoid individual parts of the code base lapsing out of the coverage of the open source copyright license that the code is distributed under. Actually, like many open source projects, the Linux kernel copyright is jointly held by many independent individuals and companies, making things much more complicated.

Less technical examples that demonstrate problems with the revenue/registration proposal include the movie Blade Runner and James Joyce's Ulysses. Both of these works have seen multiple, substantial revisions over the years. Is each edition a separate work deserving its own initial copyright term, or are all later editions accounted to the publication date of the original edition? One interpretation minimizes revenue while the other maximizes revenue. In other words, the proposal interacts messily with the concept of derivative works in current copyright law. The effect would be to create a three-tiered system of copyright renewal strategies: one where copyright holders immediately abandon their copyrights after the initial 12 year term, because any cost for maintaining copyright protection is too high; one where copyright holders dependent on royalties for income struggle to keep their works under renewed copyright; and one where copyright holders with surpluses of legal and accounting talent can obtain the maximum level of protection and minimize their renewal costs.

Conclusion

The tech press has speculated that the withdrawal of the RSC paper was orchestrated by Hollywood lobbying, but I doubt a good lobbyist opposed to this document would have had to apply much pressure beyond pointing out the basic ideological conflict of the registration proposal with the anti-tax, anti-regulation, anti-bureaucracy views of conservative Republicans, and it's rather embarrassing to see tech-oriented press hail this paper as a paragon. There are some sound ideas in this paper, but drastically reducing copyright duration and making copyright protection subject to formal registration are not among them.

By Robert Edmonds, Research Scientist

Related topics: Law, Policy & Regulation

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Comments

Agree to disagree? George Michaelson  –  Nov 27, 2012 9:52 PM PST

You say:

here are some sound ideas in this paper, but drastically reducing copyright duration and making copyright protection subject to formal registration are not among them.

I agree with the parts where you said the paper was badly written, clearly draft, and had good reasons to be withdrawn.

You assert shorter copyright terms are bad, but a confusion over the term facing continuously revised works is not in itself, a complete reason to reject them.

I entirely agree that the only sensible revision to copyright is an international one. That isn't the same as the TPP and I hope you agree the TPP is not going to materially improve the social contract in copyright.

Berne is also not a high water mark, and 50/70/90/authors-life+plus are not un-assailable qualities of a copyright regime.

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