Keynote Address

Is there “A world elsewhere”? :
The vanishing middle in copyright policy discourse

The stakeholders in the U.S. copyright system, who not so long ago participated actively in a societal discussion of how to “balance” private rights with public access, now are actively reconstituting themselves into two camps – the “protectionists” and the “secessionists” – with little or no shared vocabulary or common interest. Twenty five years ago, when the Copyright Act of 1976 was still brand new legislation, representatives of authors, distributors and consumers often quarreled about specific copyright policy issues. But they generally voiced adherence to a unitary vision of the purposes of copyright: to enrich the store of knowledge by providing incentives to creativity. And most acknowledged, and least in general terms, the centrality of the “fair use” doctrine.

Today most distributors (including publishers, film studios, record companies, etc.) unabashedly (and successfully) argue that the best copyright law is one that permits them to maximize return on investment; faced with this challenge, many consumerists (using that term broadly to include many cultural institutions) and some creators are increasingly drawn to self-help solutions that depend on the creation of voluntary copyright-free zones. In this re-sorting of stakeholder positions the likely losers are individual information practitioners, including creators who rely for support, however tenuously, on the copyright system, as well as consumers and scholars whose projects depend on reasonable levels of access to copyrighted materials.

The “protectionist” strand in the development contemporary copyright law is manifested in many legislative and judicial developments of the past decade, including term extension, increasing copyright scope, new doctrines of secondary liability, and enhanced penalties.
The “protectionists” have been largely successful in discrediting public access to information as a factor in the making of copyright policy. Efforts by the copyright “public interest” community to confront this trend in the courts and in Congress have – to date – met with little success.

The latter fact may help to explain the new prominence of the “secessionist” tendency already mentioned. Prominent examples include the “free and open source software” (FLOSS) movement, the rise of electronic “open access” journals and on-line information utilities, and the “voluntary public domain” (best exemplified by Creative Commons). These diverse manifestations share a common reliance on the power of community action, a non-economically-oriented vision of incentives for information production, and an attitude toward copyright that mirrors Coriolanus’ toward Rome: “Thus I turn my back: There is a world elsewhere....”

As magnificent as the “secessionist” experiments may be, they also share certain limitations. They have little relevance to individual creators and scholars who rely on commercial market (whether general or specialized) for their livelihood.. And they border on the irrelevant for the many teachers, students, researchers and others (including contemporary artists) whose practices involve extensive reference to the modern historical and cultural record.

Although information practitioners may wish to participate in some “secessionist” projects, only a revitalized discourage of appropriately limited rights and rightful limitations can fully serve their goals of informatin access. But in an environment where there is less and less space for meaningful conversation (or even a civil exchange of views) between advocates of polarized approaches to copyright policy and practice, rediscovering the middle way is a significant challenge.

Nevertheless, three short- and medium-term goals suggest themselves:

! Building public support for policy changes designed to “roll back” the worse excesses of recent protectionist legislation, including the revision of the Digital Millennium Copyright Act to incorporate a “fair use”-like defense to unauthorized circumvention. This is the objective of H.R. 107 (the Digital Media Consumers Rights Act), pending legislation already supported by consumer organizations, the national library associations, technology innovators, and others.

! Cooperating in an effort to develop and publicize disciplinary codes of “best practices” for the use of copyrighted materials. One of the greatest threats to the continued viability of the “fair use” doctrine is the absence of such well-articulated positions; their development would guide individual information practitioners, help to reassure “gatekeepers” (including publishers) that individuals are acting “reasonably” and “in good faith,” and help to ward off (or if necessary defend against) predatory claims by copyright owners.

! Helping to foster a legislative solution to the problem of “orphan works” – the large category of materials that are presumptively subject to copyright but lack readily traceable owners who can grant copyright permissions. Many of the materials in question reside in institutional collections, but thanks to term extension and fears of aggressive copyright enforcement, copyright looms larger and larger as a barrier to their productive re-use.

The first of these initiatives is well underway, and moves toward launching second are beginning. The third requires urgent attention.

There remains a window of time in which reclaim copyright law as a field of regulation informed by vigorous competition among alternative visions of the ultimate public interest. But every day that window closes a little more.

Peter Jaszi teaches at the Washington College of Law of American University in Washington, D.C., where he also directs the Glushko-Samuelson Intellectual Property Law Clinic. He specializes in domestic and international copyright law. Prof. Jaszi is an experienced copyright litigator and a frequent speaker to professional audiences in the United States and abroad. He also is a co-author of a standard copyright textbook. Alone and with Martha Woodmansee, he has written several articles on copyright history and theory; together they edited The Construction of Authorship, published by Duke University Press. In 1994, Prof. Jaszi was a member of the Librarian of Congress’ Advisory Commission on Copyright Registration and Deposit. Since 1995 he has been active in the Digital Future Coalition, which he helped to organize. He is a Trustee of the Copyright Society of the U.S.A., and a member of the editorial board of its journal.