On Friday, the Republican Study Committee released a study on Copyright law that was very insightful and put forward a number of good ideas to fix the law. Unfortunately, they pulled the study just a few hours later. It’s still available from the RSC website via the Google html cache of it and if you want to see it in PDF form, the Maryland Pirates have it as well.
At the beginning of August, I wrote a blog post for the Washington Monthly titled “Online Piracy Isn’t a Problem” and went through the academic literature on online piracy of music and determined that there may be too much copyright protection. Specifically, I pointed out that copyright law is not meant to protect artists’ profits:
Copyright law is meant to create an economic bargain between artists and the public. Article I, Section 8, Clause 8 of the Constitution (the Copyright Clause) says,
Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Constitution gives artists a limited monopoly over their work in return for the eventual dedication of it to the public domain. The law is not meant to protect artists’ profits or revenue. As long as the quality and quantity of music is not dropping, Congress has no reason to further incentivize artists. By definition, the incentives are already there.
Based on its redacted report, the Republican Study Committee agrees:
It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not.
Thus, according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.
This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation.
The Committee proposes reforming statutory damages, expanding fair use, creating a punishment for false copyright claims and significantly reducing the term limit for copyright. The proposal is excellent. Go read the full thing. It’s only nine pages and certainly worth the time.