Fair and Balanced: On Copyright and Fair Use | The Nation


Fair and Balanced: On Copyright and Fair Use

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Near the start of How to Fix Copyright, William Patry discloses that he is the chief copyright lawyer at Google. He insists that his book represents his personal views, not those of his employer. Fair enough. But then he adds, “So please don’t preface any discussion of this book with: ‘Google’s Senior Copyright Counsel said,’ or any other variant.”

How to Fix Copyright
By William Patry.
Buy this book.

Reclaiming Fair Use
How to Put Balance Back in Copyright.
By Patricia Aufderheide and Peter Jaszi.
Buy this book.


About the Author

Caleb Crain
Caleb Crain is the author of the novel Necessary Errors, recently published by Penguin Books.

Also by the Author

A legal quirk enabled Samuel Roth to pirate Ulysses. Was Roth a copyright anarchist or a pioneer?

How music plagiarism ruined a composer’s career and literally drove him mad.

The trouble is that if Patry is Google’s senior copyright counsel and did write the book, it’s a matter of fact that “Google’s Senior Copyright Counsel said” what’s in it. To reveal a fact and then forbid inferences from it is to play mind games. Many might feel that Patry’s role at Google adds significance to his opinions on copyright; his publisher advertises his Google affiliation on the book’s back flap on that account. Patry’s vocation may also color his opinions about copyright. My vocation, for example, colors mine. As someone who makes his living as a writer, I feel a little protective of the legal basis of my income. Patry makes his living from a company that depends on using the copyrighted work of others—both with permission and without it, both within the traditional understanding of what’s legal and at its edges. Surely a reader is entitled to wonder about the relationship between Patry’s day job and his ideas.

The non sequitur I’m objecting to here is a small one. Unfortunately it’s representative; Patry’s reasoning is slipshod throughout the book, and more than once he tells the reader what to think instead of taking the trouble to convince him. Nor are these the only signs that the book may have been hurriedly—or just poorly—written. Patry often repeats himself. Though he seems to wish to address a broad audience, he uses legal terms of art such as “de minimis” and “worldwide exhaustion” without explaining them, and the later chapters sprint faster and faster through vagaries of international copyright law that are more and more complex. His priorities seem unsorted; he devotes a whole chapter to discrediting a 1995 article that consists only of notes in outline form and that by his own admission seems to have been little read. Nonetheless, if only because of Patry’s connection to Google, the ideas in his book will be taken seriously.

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Patry believes that copyright laws have failed, and for evidence of the failure he begins by pointing to conflicts. Creators of copyrighted work have tussled with the distributors to whom they sell it. Record labels, for example, have been found guilty of withholding payments to musicians, and Patry recounts that in his capacity as a writer, he was recently forced against his will to sign away valuable rights in negotiations with a powerful online publisher. Creators have also been quarreling with their audiences, especially about pricing and access. Patry cites a recent dispute over Amazon’s Kindle: Amazon enabled the device to read books aloud in a mechanized voice, and the Authors Guild protested that the function would cut into sales of audio books. Amazon backed down—a matter for regret, in Patry’s opinion.

Moreover, Patry continues, copyright laws as currently written don’t do everything that has been claimed for them. They aren’t “the basis for creativity,” he asserts, and they “do not help the majority of authors and artists in making a living.” They don’t make a country’s economy more competitive, because the concept of productivity doesn’t apply to the arts, and because, in America, a small number of corporations own most copyrights. In addition, the laws have become obstacles to technological innovation. The consumers of the future, Patry believes, will want temporary access to works of art instead of ownership—they will want to stream rather than download—and Patry doesn’t think that the ephemeral, infinitesimal duplications that make streaming possible qualify as copies, even though some lawyers have tried to claim that they do. So dim is Patry’s view of copyright that he seems at times to doubt that it was ever a good idea. He suggests that when copyright was introduced in England in 1710, it had the effect of confining books to a luxury market. After 1774, when Britain’s House of Lords ruled that copyright couldn’t last in perpetuity, prices dropped and there was an explosion in the number of new titles published.

“The central purpose of copyright,” Patry writes, “has been to enable copyright owners to control markets, and in controlling them to make monopoly profits by selling fewer works for more money.” Patry doubts that talent is rare. Copyright, however, makes it possible for cultural gatekeepers to concoct an “artificial scarcity” of artwork in order to keep prices high. The result is as pernicious as “monetary inflation,” he believes. Now that the Internet has sidelined the old gatekeepers, though, “digital abundance” is starting to flourish. America’s copyright laws, some provisions of which were written as long ago as 1909, need to be adjusted to the new reality, preferably after reviewing them for their economic impact. Patry hopes that after reform, copyright will not be granted automatically, as it is now, but only when formally requested, and that the term of protection will vary according to medium and be much shorter than the current one, which is the creator’s life plus seventy years.

I have several objections to Patry’s arguments. Conflict, first of all, is no proof that a law has failed. People kill one another all the time, but no one suggests giving up on the law against murder. (The case of homicide law, by the way, also suggests that the age of a law is not necessarily an argument against it.) It’s only natural for creators, distributors and audiences to struggle. All three groups wish they had sole control over access to works of art; creators and distributors want to be paid as much as possible, and distributors and audiences want to pay as little as they can get away with. Whenever any one of the three gains the upper hand, bad behavior is to be expected. (As it happens, the dispute over the Kindle’s read-aloud function seems to have been between creators and a distributor, not between creators and the audience, as Patry suggests.)

Patry claims not to be debunking a straw man when he denies that “copyright is the basis for creativity.” Indeed, he found the claim, so phrased, in a European policy paper. But once he explains what he means by his debunking, it seems trivial. The authors of the phrase couldn’t have intended to claim that, say, Coleridge was inspired by a legal text rather than opium to write “Kubla Khan,” or that Wordsworth’s poems became better as poems by virtue of having been copyrighted. But Patry debunks copyright along exactly those lines. “Copyright’s actual role is more limited,” he writes; “it ensures that works once created and successful can be protected against free riding.” Well, yes; agreed. In a further attempt to snatch the laurels of cultural prestige from copyright’s brow, Patry notes that since 1903, when Oliver Wendell Holmes Jr. ruled that copyright applies even to a circus poster, much of what the law protects has been lowbrow, if not no-brow. “To say that copyright is designed to foster creativity,” Patry writes, “is to ignore that the vast majority of copyrighted works have no creativity in the popular sense.” In the popular sense, or in the elite sense? Patry looks down his nose, a few pages later, at movies that have been fashioned from comic books. But even if he is right—even if copyright is guilty of protecting works that are merely popular and not, properly speaking, creative (whatever that means)—its protection of the sort of artwork that Patry likes isn’t thereby nullified.

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The more substantive apologia for copyright is about money, of course. But most artists, Patry notes, don’t have much financial success, and he accuses copyright of skewing the rewards toward superstars, away from the rank and file. The winner-take-all system encourages a roulette mentality in artists, who would be better served, Patry suggests, by government subsidies, tax breaks and arts funding in schools. “We would be better off if we spent less money on weapons systems that don’t work and more money on musicians who want to,” he writes. Lovely suggestions all, but none of them require weakening, shortening or abolishing copyright. A suspicious reader may wonder if Patry is pandering to his audience. Somewhat grudgingly, he does admit that copyright has brought money to artists. One doubts that Lady Gaga would ever have won a government subsidy for the music video for her song “Paparazzi.”

Patry would probably reply that he has no wish to divest Lady Gaga of her millions. Why, then, does he resist admitting that copyright is implicated in streaming? If you manage to enjoy in New York a musical performance stored on a hard drive in Palo Alto, a copy of it has crossed the country somehow. Why does Patry dismiss as “false” the idea that “intellectual property laws are necessary and sufficient to foster new works”? It can take years to write a novel or a history, and if it weren’t possible to sell the copyright in it, few but the rich, or those with rich patrons, would undertake to. Why does Patry theorize about artificial scarcity and monopoly profits? If creators have the right to a reward in the marketplace, then the audience will have to pay for it somehow. The trick is to strike the right balance. Patry, however, believes that “there is no balancing but instead only one side or the other prevailing.” His assault seems in excess of the reforms that he admits to wanting, and a suspicious reader may also wonder if Patry aspires to bring copyright itself into disrepute.

It seems true, and even obvious, that copyright protection is currently too long. As Patry points out, an artist gained vanishingly little in 1998 when the United States extended copyright from five decades beyond his death to seven, and before renewal was made automatic, copyright holders only bothered to renew about 15 percent of them. I agree with Patry that if we lived under the copyright laws of 1975, there would be far fewer orphan works (protected artworks whose copyright holders can’t be found), and librarians, historians and fans could more safely take charge of cultural preservation. On the other hand, if the economic bonus that the 1998 term extension gave to artists was small, the economic harm to the rest of us must also be. Probably no one would even have noticed it if Google’s book-digitization project hadn’t proved to be a way of sweeping up all the loose change that authors and their heirs seemed to have strewn about, almost (but not quite) as if they were no longer asserting a right of property in it.

The evidence Patry musters of book sales in eighteenth-century Britain is strong, if not absolutely conclusive (much was happening in Britain in the late eighteenth century, including the Industrial Revolution, and the outburst in literacy no doubt had a number of causes). But even if one grants a causal link, mightn’t the moral be that eternity is not a copyright duration that properly balances the interests of writers and readers? Patry’s rejection of the concept of balance seems unhelpful. As for the age of digital abundance, Patry argues, with the futurist gloating that has become conventional, that distributors who fail to lower their prices are doomed. But if capitalism is accomplishing change the old-fashioned way—by driving ill-adapted companies into bankruptcy—there’s not really any need to precipitate further change with legislation.

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