On March 18th I was in Brussels to give a talk as one of two “invited experts” (the other being from the Motion Picture Association) to a session on the topic of “Copyright Enforcement” held by the Working Group on Authors’ Rights of the European Parliament’s JURI Committee. Below is the slightly tidied up text of the talk I gave.
Good afternoon and thank-you for inviting me here today. To introduce myself I’m the Mead Fellow in Economics at Emmanuel College, University of Cambridge and an Associate at the Centre for Intellectual Property and Information Law also at the University of Cambridge. I believe that my colleague Professor Bently came here in October to speak to a similar gathering that time on the topic of copyright term extension.
To begin with I want to make a few general points before proceeding to the specific area – enforcement – that today’s meeting looks at.
The first point I would like to make is when we talk of copyright we must remember that it is not a single unified thing but, in reality, a bundle of different attributes. For example, there is the crucial distinction between:
- Economic rights: the ‘monopoly’ right to control reproduction and distribution of the work (and thereby to control, at least partially, its price). We should also note that in some cases this ‘exclusive’ right may be converted into a right for equitable remuneration.
- Moral rights: rights of attribution and integrity. These can exist separately and independently of any economic rights. Furthermore they are often norms that we respect irrespective of any copyright: I still credit Shakespeare for Romeo and Juliet even if it is in the ‘public domain’.
Furthermore these economic and moral rights have a variety of attributes such as:
- Term, i.e. the length that the right lasts.
- The breadth of the right. For example, in the US copyright for performers is ‘narrower’ than in the EU because certain uses of recording (notably broadcast on the radio) need not be paid for. There are also limitations and exceptions related to educational use or use for criticism where permission need not be sought from the rightsholder.
- Lastly there is enforcement. After all one can have very ‘strong’ rights but then be permissive in enforcement, or, conversely, have more limited ‘rights’ but be very strict in the enforcement. I would also point out that enforcement is a social as well as legal matter: when I attribute an author the main reason I do it is not because I might get ‘sued’ if I do not but because it is the right thing to do – people should be credited when their work is used wherever it is reasonable to do so.
The value of a right is determined by the interplay of all of these. Deciding on the level of enforcement is therefore the same problem as deciding on the level of copyright generally. And we can’t think about this without asking about the purpose behind copyright’s existence.
The answer here is a simple one: copyright is instrument created in order to promote the interests of society as a whole – not, I must emphasize, to promote the interests of the producers of creative works. Of course we care about remunerating producers and artists, both because they are members of society, but also, and more importantly, because by remunerating them we ensure the creation of more works which society as a whole can enjoy.
Nevertheless, it is essential to keep in mind that the purpose of copyright is broader than to promote the interests of a single group. This fact then is central to any assessment of the form and level of copyright and it has important implications. For example if we have a proposal that will help artists but overall harm society we should not support that proposal. Moreover, it is also a fact that is sometimes neglected, for example this very working group is entitled “Working Group on Author’s Rights” not “Working Group on Copyright and Social Welfare”.
In using copyright to promote social welfare we are then presented with a basic trade off between the benefits of the monopoly in the form of the new work created as a result of the monopoly accrued rents, and its in the form of reduced access to creative works. We are therefore seeking a balance: we want enough copyright but not too much. And, returning to our point above, this logic applies to enforcement as much as any other aspect of the “copyright package”.
In particular: if there is already ‘too much’ copyright stronger enforcement will make things worse. If there is too little copyright then more enforcement will make things better. Now, my personal preference is for strong enforcement of fair rules
Unfortunately, the rules currently aren’t fair – for example copyright is almost certainly far too long. As such it is hard to justify a push for strong enforcement. In addition, I would also argue that the unfairness of the current copyright regime is also a major reason why strong enforcement will be difficult, if not impossible, to achieve in practice. Why?
The reason is simple: the successful enforcement of any rule depends on that rule having public legitimacy – being considered reasonable by the majority of the populace. Currently that is not the case: copyright suffers from a serious lack of “respect” and a marked lack of public legitimacy.
If you wish to change that we need the rules to be fair and balanced – it hard to have respect and enforcement of an unfair system. For example, copyright term should be reduced and we should expressly avoid extensions, especially retrospective ones like that currently before Parliament in relation to sound recordings. Such policies appear to reflect nothing more than special interest lobbying and this can only make copyright’s “marked lack of public legitimacy” worse – I would note here the recent joint statement put out by European IP law centres who emphasized that retrospective term extension would seriously undermine respect for copyright and make “piracy the easy option”.
It will be almost impossible to enforce unjust rules. If we are to have strong enforcement it therefore must be of just rules and just rules must be reasonable rules. For example, is it reasonable in an age of costless reproduction to continue to promote a model of copyright based on exclusive rights? Much of the “problem” of unauthorised file-sharing could be resolved if we moved to an alternative compensation system based on an equitable remuneration right approach. In one fell swoop we would eliminate the biggest “enforcement” problem going while also increasing the size of benefits to be divided between users and makers of creative works. Surely this is the more reasonable, and sensible, option!
As I am coming to the end of my allotted span let me conclude. Copyright must be designed to promote the welfare of society as a whole not one specific group. As such, in designing any aspect of copyright, including enforcement, it is important not to have too much as well as not to have too little. We must also remember that copyright, like any other rule or law, depends for its enforcement on willing compliance more than explicit punishment. As such the most important factor in ensuring better observance of copyright is to increase its legitimacy which it markedly lacks at present. To achieve that we need to create a more just, and more reasonable, copyright regime. Thank-you.