My Comments To The USTR On Special 301 Report On Foreign Copyright Issues

Politics

from the let's-get-real dept

As you may or may not have heard, the USTR has been accepting public comments for its Special 301 report, which comes out every year in an attempt to name and shame countries that the USTR does not believe does enough to protect US copyrights abroad. Typically, this process is driven very much by the entertainment industry, to the extent that even people in the US copyright office have been known to roll their eyes about the legitimacy of the report. A lot of people have been incorrectly claiming that these comments are about ACTA, but they’re not. The Special 301 report basically just tries to determine which countries the US should put more pressure on to “get with the program,” diplomatically speaking, when it comes to copyright issues. In the past, it’s been used to bully countries like Canada and Israel — both of which have strong copyright that is very much in compliance with international obligations. This year, with the USTR opening up the comments process to anyone who had some thoughts, I figured I would submit my own thoughts on this particular issue. If you would like to submit your own comments, you can follow the instructions given by Public Knowledge. At that link you can also see PK’s own “suggested” text, though I would highly recommend writing your own thoughts out, rather than stuffing the box with the same letter. For another letter, you can see what John Bennett submitted as well.

Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508
Filed electronically via Regulations.gov

Dear Ms. Groves:

I write to you today as a long-term content creator, who makes my living off of my ability to continue to create content and receive remuneration for that activity. And yet, I am concerned about the state of US copyright law, and the fact that it does not serve my interests or the interests of the vast majority of content creators today. Despite being a professional content creator, I have purposely chosen not to make use of copyright law, because the way it is structured today actually hinders my own ability to profit from my content creation.

The central tenet of copyright law has been, “To promote the Progress of Science and useful Arts,” and the mechanism for this is both copyright and patents, or more specifically “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Unfortunately, over the years, all too often we’ve lost sight of the beginning of that sentence, in the assumption that any increase in those “exclusive rights” must surely “promote the progress.” And, yet, as we have expanded and stretched copyright law time and time again — and almost never contracted it — no one ever seems to ask for any actual evidence that stronger and lengthier copyright law leads to promoting more progress.

This is not a new concern. Thomas Macaulay famously argued in 1841 that we ought to be careful to only extend and expand copyright upon evidence that such an extension or expansion would, in fact, lead to greater incentives to create. Yet, to this day, our public policy has been to take it on faith that stricter copyright laws lead to greater incentives to create — despite the lack of evidence to support this position. In fact, the evidence has suggested that as technology has decreased the ability of copyright holders to enforce copyright, the incentives to create have only increased. And this is not just the ability to create as an amateur, but the ability to create and earn money as a professional.

A recent paper by economists Felix Oberholzer-Gee and Koleman Strumpf demonstrated this in rather great detail, highlighting that even as new technologies have undermined classical copyright law, there remains little evidence that this change has undermined the incentives to create. In fact, the research collected in that paper and other papers suggested that more people are creating new works of music today than ever before in history. The same is true of movies, an industry that has seen the number of annual releases double in the last five years alone.

There is no doubt that a segment of these industries, who have relied on exclusivity and limits in the distribution channels, such as the major movie studios and the major record labels, have been slow to respond to these changes and have faced difficulties. But their views are not an accurate representation of the overall industry. The Oberholzer-Gee/Strumpf paper clearly demonstrated that the amount of money being spent on music by consumers has grown massively in the past decade — it’s just that a smaller portion of that spend goes directly to the record labels. An even more recent study out of the UK, done by two industry economists working for PRS, the UK’s performance rights collection society, also found that the overall music industry was making increasingly more money, despite the challenges of a changing market.

These studies point to important facts about how industries can adapt, even in the face of technologically-weakened copyright, without the need for greater enforcement. But they also raise an important point: when our policy on copyright is made without actual evidence, it is important to allow different countries to experiment with their own copyright policies, from which the rest of the world can learn. Trying to enforce US-style copyright law throughout the world does a disservice to the very purpose of copyright law: to promote the progress.

By allowing different countries to experiment and adopt their own style of copyright law, we create a real-world experiment from which we can learn what does, and what does not, help to “promote the progress.” Using US trade policy to pressure other countries to adopt a US-style copyright law brings all of the problems with US law to other countries, and presents no chance for us to examine how our own law might be improved to serve the purpose of the law, as set out in the Constitution.

The Special 301 process should be an opportunity to see what other countries have done and what we can learn from them, rather than an opportunity to try to export faith-based US-style copyright law to other countries, solely for the benefit of a few companies who have not adapted, while many others in their industries have made the jump to supporting and embracing new technologies and new business models. The US should be encouraging local experimentation with copyright law, rather than strict adherence to our own brand of copyright law — especially given the lack of concrete evidence that our own laws do, in fact, “promote the progress.”

Sincerely,

Michael Masnick

Filed Under: copyright, foreign copyright, progress, special 301 report, ustr