Copyright, Books and Progress: Charles Clark Memorial Lecture 2019
This year’s Charles Clark Memorial Lecture, entitled Copyright, Books and Progress, was delivered by Professor Daniel Gervais, Milton R Underwood Chair in Law and Director of the Vanderbilt Intellectual Property Program at Vanderbilt Law School.
Professor Gervais began by stating that copyright is more about intermediation than authors; it is meant to help create value in the marketplace. For the first 290 years of copyright, it was traded between professionals, who could afford greater transaction values than ordinary users. This enabled creators the luxury of focusing on their creative work. There has now been a shift to a many-to-many infrastructure (caused by the Internet). The might of online users has eclipsed many of the discussions on the rights of authors and professional users. The new intermediaries are not copyright owners, and generate revenues by selling advertising. Their aim is to pay as little as possible for creative works. Intermediaries can now control access to and use of content – e.g., by managing search results – but claim that the no liability rules still apply to them. The industry should revisit the “intermediation paradigm” by focusing on maximising authorised use. Essentially, this means by licensing.
Copyright implies “one size fits all” – but now this doesn’t work. Allowing the re-fragmentation of rights materials to create a single protected object does work. The twenty-first century user is not limited to consumptive use only; may add comments; may alter and re-disseminate; and likes new search options. Imitation has long been part of the creative process, but it has now been raised to “immeasurably higher levels of good and bad”. The ability of the Internet to disseminate worldwide at little cost is a powerful leveller; but saying no to a user online is the least desirable option. The push for limitations and exceptions is informed by the view that content should be free; but there is often confusion about the use of the term “free”. Therefore, if copyright can be aligned with purpose, the need for more limitations and exceptions will be reduced.
A key – and very quotable – central tenet of Professor Gervais’s thesis is that “the economic component of copyright should be a right to prohibit users that demonstrably interfere with actual or predictable commercial exploitation.” Technology will change; creative processes will change; but it will be a long time before we abandon markets. “Copyright as a cultural and economic tool is a much better justification for preserving the right.” The nature of content should matter to us all; progress doesn’t necessarily mean “new”, because new doesn’t always justify progress. Professor Gervais clarified this point by asking whether copyright incentivises the right things. He said that it was clear that in order to achieve its aims, new content must not only be created but made available, while finding ways not to disadvantage those who have spent their lives perfecting their creative craft. Spending time on creativity is essential for humanity to reach maximum levels of achievement: “Even abundant talent needs to be honed, nurtured and developed.”
In the knowledge economy, creativity has replaced the value of material goods. Policies must ensure that those who can, will, push their creative limits. The US constitution states the purpose of copyright is progress and that the beneficiaries are to be authors. Change that is not progress means moving sideways or going backwards. Human emancipation through science and the arts is progress; the role of governments is to promote progress by ensuring that the “greater proportion” of change is for progress.
What can history teach us? Erasmus said, “Your library is your paradise”, and “When I get a little money I buy books; if any is left, I buy food and clothes.” Good governance of human progress is about promoting conditions for business to thrive across borders and for humans to develop their potential.
Professor Gervais identified three positive developments: the case for encompassing progress not just in terms of the next quarter’s GDP growth, but on a broader scale; the fact that most policy makers now acknowledge that making copyright rules in a vacuum – as if Intellectual Property were a separate entity – makes little sense; and that, although poorly-calibrated laws run counter to their stated objective, “luckily, poor calibration or absence of calibration can be reversed.” As he put it, “We should see ourselves as heirs of past human intellect, creators in our time, and messengers to the future.” The belief that the law can help to bring out the best in people while keeping “the rest” at bay is strongly ingrained in our (i.e., Western) constitutions.
He concluded by making what he called “a few concrete suggestions”:
- In the face of the takeover of human creativity by a small number of large technology companies, we can either take a laissez-fair (or, as he put it, “teché-faire”approach, and “let a few flowers and a billion weeds grow”; or we can use copyright to foster creativity more proactively.
- OR we can regulate dissemination.
- OR we can implement a policy that implies some regulation.
Internet users need filters – there is simply too much “out there”; moreover, “it is essential to separate the means of diffusion and dissemination of creative works from the means of production”. Much of the new digital content is “noise” – e.g., fake news. Two giant companies – Facebook and Google – suck up most of the revenue from the Internet. But for many forms of enterprise, the Internet is “it”; and the Internet is also the only means of revenue for many companies.
As his “epilogue”, Professor Gervais summed up by saying that copyright law matters: it is the main policy tool we have to effect financial flows to professional creators and publishers – highly desirable goals for the future of progress. “The Internet’s purpose should be to foster, not hinder, rights.”