Copyright, Fair Use and the Public Interest
Executive Vice President, Recording Industry Association of America
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It has become extremely fashionable these days to suggest that copyright protection has outlived its usefulness, and that the "public's" interests should triumph over the "private" and exclusionary interests of copyright owners. When expressions of this false dichotomy began appearing in the press and legal briefs a few years ago, I assumed that the underlying illogic upon which they were premised would quickly become evident, and that these theories would implode from the pressure of their internal irrationality. This has not come to pass—in large part because many in society view these ideas as providing moral comfort for engaging in the theft of intellectual property at a time when such theft can be safely achieved from the comfort of one’s home. We, as a society, can no longer permit these attacks on the copyright system to go unchallenged, for this debate greatly affects the interests of the public, but in much more important and complicated ways than commentators such as Stanford Law Professor Larry Lessig and the Electronic Frontier Foundation (EFF) would have you believe.
Let’s begin by unmasking the false premise underlying the basic anti-copyright position—that is, that the basic strain on the copyright system is to achieve a balance between the "public" on the one hand, and "private copyright owners" on the other. In this formulation, the "public’s" interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.
This is a dangerous mischaracterization of the "public interest" underlying the copyright law. It is my belief—reflected in the legislation of many countries including the Constitution of the United States—that the public has a much broader interest. The U.S. copyright system, like most, is based on the very notion that the public has an overt interest in protecting intellectual property, and not merely in restricting it. Stated in another way, the public interest in copyright is not limited to the notion of fair use or the public domain, but rather extends to the entire system of copyright. While the public certainly has an interest in securing cheap access to copyrighted materials, society's primary interest is in ensuring the production and distribution of original materials so that there exists something to access. This goal is achieved via copyright protection.
The United States system of copyright is quite explicit in recognizing the public's interest in copyright protection. We do not reward creators merely because they create, rather we base our entire system of protection on the public's interest in promoting the creation and distribution of creative materials. The extent of copyright protection reflects the underlying contract between creator and the public, for the benefit of the public. Our system of copyright rests upon the correct understanding that the public has an interest in copyright protection as a mechanism for promoting the development of the arts and sciences.
Folks like Larry Lessig and EFF would have you believe, because it suits their analysis, that copyright protection and the public interest are diametrically opposed. This is merely a rhetorical device, and is a complete fallacy. The public's interest is represented by the copyright law. Members of the public, legislators and policy makers must ensure that the copyright law continues to represent this interest, and that the grant of rights therein continues to fuel artistic and scientific development while maintaining appropriate limitations on the grant of exclusive rights. We should do so, however, without resort to the false tautologies and misplaced populism offered by the current critics of the copyright system.
I do not mean to suggest, of course, that anything that strengthens copyright protection is in the public interest. Certainly any proposal for legislative expansion of copyright protection should be closely examined to ensure that it advances the goals of societies. The critical point to remember in such debates, however, is that it is essential that the public's interests be properly characterized to reflect the importance—to societies and not just to copyright owners—of sustaining the incentives for the creation and distribution of original cultural, educational and scientific works over time, and that we do not sacrifice society's long term interests in order to achieve short term cost benefits.
That society has a manifest interest in ensuring the viability of copyright protection is well demonstrated in the case of developing countries. In many developing countries, the marketplace has been so dominated by piracy that there is no viable mechanism for private capital to be employed in facilitating the creation and distribution of creative works. In such instances—i.e. where copyright protection is not effectively introduced and maintained in law and in practice—the creative community is silenced. Communities throughout the globe—particularly in parts of Asia, Latin America, the Middle East and Africa—bear silent witness to the devastating impact that lack of effective copyright protection have on the ability to create. Where there is no financial incentive for the creation and distribution of cultural materials, the distribution of local cultural materials ceases, much to the detriment of society, as well as to the putative creators who are foreclosed from adding their voices to the cultural mix.
It is essential that policy makers keep in mind that the copyright system replaced private patronage as the mechanism for permitting creators to live through their craft. By permitting creative genius to be fuelled by market forces, we unleash the cultural power and potential of the public at large, freeing creative impulses from the tyranny of government control and making creative works accessible to the public at large. While the copyright system carries with it the potential for abuse, it remains by far the most powerful tool for fostering creativity and democratizing cultural production and access thereto.
Critics of the copyright system such as Larry Lessig and EFF use emotive rhetoric in an attempt to demonize copyright—or more particularly copyright owners, and to suggest that "copyright" protection is somehow a "special interest." They say that they care about "creativity," and that fair use is critical to the interests of society. Copyright owners agree, but unlike Lessig and the EFF, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. We care more fundamentally about fair use because we recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. The copyright community relies upon the idea/ expression dichotomy, and the concept of fair use. As a consequence, copyright owners have a greater interest in preserving limitations to copyright protection to permit new forms of expression than do general members of the public. Creators need to stand on the shoulders of giants, right? For Lessig and his allies, fair use is little more than a useful slogan.
Likewise, the constant use of the 1st Amendment to justify limits on copyright protection must be challenged, but fairly and rationally. Lessig is not wrong, and the creative community agrees, that there should be limits on the extent of copyright protection both because it is good policy to encourage the production of new creative works, and because the "Copyright Clause" in the Constitution requires such a limitation. But the essential problem with Lessig’s analysis is that he uses the free speech rhetoric of the 1st Amendment to justify misappropriations that have nothing to do with speech.
While there may indeed be a philosophical nexus between fair use and the first amendment, this nexus is generally not implicated when the purported "fair use" is the ability of individuals to make unauthorized copies of copyrighted materials for personal use. Indeed, the very fact that such uses are "personal" and not shared with the public undermines the putative link to the first amendment given the lack of "speech" involved—unless speaking to oneself—as manifested by making an unauthorized copy of a copyrighted work, now counts as a cherished first amendment freedom.
Further, Lessig draws upon the sympathetic environment for considering expressive/transformative uses (i.e. employing the doctrine of "fair use" for purposes of reporting, commentary, satire, parody or the production of new creative works), but applies them to consumptive uses.
Let me close by noting that as Executive Vice President of the Recording Industry Association of America, I by definition have a professional interest in this debate. I write this response, however, not on behalf of my organization, but as a member of the public who cares greatly about two things Mr. Lessig and other critics of industry efforts to promote effective copyright protection frequently discuss--copyright protection and the first amendment. I am troubled by the casual way in which they treat things that I care deeply about, and which I think are of fundamental importance to the entirety of US society. In particular, as noted above, I grow increasingly weary of arguments wrongly premised on the notion that the public interest in copyright is only reflected in establishing limitations thereon. More fundamentally, I am extremely concerned about the trivialization of the First Amendment when people assert that the public's interest in making and distributing unauthorized copies of sound recordings represents an exercise of First Amendment freedoms. This can only make life more difficult for those among us who truly care about maintaining the freedom of speech in a new and complicated environment. Society faces many difficult questions is a rapidly changing environment. I hope that in the future, these important questions will be met with more than mere posturing.
This article expands upon an article by Neil Turkewitz that appeared in the September 2003 edition of "Managing IP."