Free Culture
Page 24
These complaints were real and sensible. And the strictness of the formalities, especially in the United States, was absurd. The law should always have ways of forgiving innocent mistakes. There is no reason copyright law couldn't, as well. Rather than abandoning formalities totally, the response in Berlin should have been to embrace a more equitable system of registration.
Even that would have been resisted, however, because registration in the nineteenth and twentieth centuries was still expensive. It was also a hassle. The abolishment of formalities promised not only to save the starving widows, but also to lighten an unnecessary regulatory burden imposed upon creators.
In addition to the practical complaint of authors in 1908, there was a moral claim as well. There was no reason that creative property should be a second-class form of property. If a carpenter builds a table, his rights over the table don't depend upon filing a form with the government. He has a property right over the table “naturally,” and he can assert that right against anyone who would steal the table, whether or not he has informed the government of his ownership of the table.
This argument is correct, but its implications are misleading. For the argument in favor of formalities does not depend upon creative property being second-class property. The argument in favor of formalities turns upon the special problems that creative property presents. The law of formalities responds to the special physics of creative property, to assure that it can be efficiently and fairly spread.
No one thinks, for example, that land is second-class property just because you have to register a deed with a court if your sale of land is to be effective. And few would think a car is second-class property just because you must register the car with the state and tag it with a license. In both of those cases, everyone sees that there is an important reason to secure registration—both because it makes the markets more efficient and because it better secures the rights of the owner. Without a registration system for land, landowners would perpetually have to guard their property. With registration, they can simply point the police to a deed. Without a registration system for cars, auto theft would be much easier. With a registration system, the thief has a high burden to sell a stolen car. A slight burden is placed on the property owner, but those burdens produce a much better system of protection for property generally.
It is similarly special physics that makes formalities important in copyright law. Unlike a carpenter's table, there's nothing in nature that makes it relatively obvious who might own a particular bit of creative property. A recording of Lyle Lovett's latest album can exist in a billion places without anything necessarily linking it back to a particular owner. And like a car, there's no way to buy and sell creative property with confidence unless there is some simple way to authenticate who is the author and what rights he has. Simple transactions are destroyed in a world without formalities. Complex, expensive, lawyer transactions take their place.
This was the understanding of the problem with the Sonny Bono Act that we tried to demonstrate to the Court. This was the part it didn't “get.” Because we live in a system without formalities, there is no way easily to build upon or use culture from our past. If copyright terms were, as Justice Story said they would be, “short,” then this wouldn't matter much. For fourteen years, under the framers' system, a work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled.
But now that copyrights can be just about a century long, the inability to know what is protected and what is not protected becomes a huge and obvious burden on the creative process. If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before because there are no formalities.
The Eldred Act was designed to respond to exactly this problem. If it is worth $1 to you, then register your work and you can get the longer term. Others will know how to contact you and, therefore, how to get your permission if they want to use your work. And you will get the benefit of an extended copyright term.
If it isn't worth it to you to register to get the benefit of an extended term, then it shouldn't be worth it for the government to defend your monopoly over that work either. The work should pass into the public domain where anyone can copy it, or build archives with it, or create a movie based on it. It should become free if it is not worth $1 to you.
Some worry about the burden on authors. Won't the burden of registering the work mean that the $1 is really misleading? Isn't the hassle worth more than $1? Isn't that the real problem with registration?
It is. The hassle is terrible. The system that exists now is awful. I completely agree that the Copyright Office has done a terrible job (no doubt because they are terribly funded) in enabling simple and cheap registrations. Any real solution to the problem of formalities must address the real problem of governments standing at the core of any system of formalities. In this book, I offer such a solution. That solution essentially remakes the Copyright Office. For now, assume it was Amazon that ran the registration system. Assume it was one-click registration. The Eldred Act would propose a simple, one-click registration fifty years after a work was published. Based upon historical data, that system would move up to 98 percent of commercial work, commercial work that no longer had a commercial life, into the public domain within fifty years. What do you think?
When Steve Forbes endorsed the idea, some in Washington began to pay attention. Many people contacted me pointing to representatives who might be willing to introduce the Eldred Act. And I had a few who directly suggested that they might be willing to take the first step.
One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international law. It imposed the simplest requirement upon copyright owners possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, “we are close.” There was a general reaction in the blog community that something good might happen here.
But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the congresswoman that the MPAA would oppose the Eldred Act. The reasons are embarrassingly thin. More importantly, their thinness shows something clear about what this debate is really about.
The MPAA argued first that Congress had “firmly rejected the central concept in the proposed bill”—that copyrights be renewed. That was true, but irrelevant, as Congress's “firm rejection” had occurred long before the Internet made subsequent uses much more likely. Second, they argued that the proposal would harm poor copyright owners—apparently those who could not afford the $1 fee. Third, they argued that Congress had determined that extending a copyright term would encourage restoration work. Maybe in the case of the small percentage of work covered by copyright law that is still commercially valuable, but again this was irrelevant, as the proposal would not cut off the extended term unless the $1 fee was not paid. Fourth, the MPAA argued that the bill would impose “enormous” costs, since a registration system is not free. True enough, but those costs are certainly less than the costs of clearing the rights for a copyright whose owner is not known. Fifth, they worried about the risks if the copyright to a story underlying a film were to pass into the public domain. But what risk is that? If it is in the public domain, then the film is a valid derivative use.
Finally, the MPAA argued that existing law enabled copyright owners to do this if they wanted. But the whole point is that there are thousands of copyright owners who don't even know they have a copyright to give. Whether they are free to give away their copyright or not—a controversial claim in any case—unless they know about a copyright, they're not likely to.
At the beginning of this book, I told two stories about the law reacting to changes in tec
hnology. In the one, common sense prevailed. In the other, common sense was delayed. The difference between the two stories was the power of the opposition—the power of the side that fought to defend the status quo. In both cases, a new technology threatened old interests. But in only one case did those interest's have the power to protect themselves against this new competitive threat.
I used these two cases as a way to frame the war that this book has been about. For here, too, a new technology is forcing the law to react. And here, too, we should ask, is the law following or resisting common sense? If common sense supports the law, what explains this common sense?
When the issue is piracy, it is right for the law to back the copyright owners. The commercial piracy that I described is wrong and harmful, and the law should work to eliminate it. When the issue is p2p sharing, it is easy to understand why the law backs the owners still: Much of this sharing is wrong, even if much is harmless. When the issue is copyright terms for the Mickey Mouses of the world, it is possible still to understand why the law favors Hollywood: Most people don't recognize the reasons for limiting copyright terms; it is thus still possible to see good faith within the resistance.
But when the copyright owners oppose a proposal such as the Eldred Act, then, finally, there is an example that lays bare the naked self-interest driving this war. This act would free an extraordinary range of content that is otherwise unused. It wouldn't interfere with any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the “Dark Content” that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question:
What does this industry really want?
With very little effort, the warriors could protect their content. So the effort to block something like the Eldred Act is not really about protecting their content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn't require their permission first.
The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of “property” but the rejection of a tradition. Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs.
It is not hard to understand why the warriors take this view. It is not hard to see why it would benefit them if the competition of the public domain tied to the Internet could somehow be quashed. Just as RCA feared the competition of FM, they fear the competition of a public domain connected to a public that now has the means to create with it and to share its own creation.
What is hard to understand is why the public takes this view. It is as if the law made airplanes trespassers. The MPAA stands with the Causbys and demands that their remote and useless property rights be respected, so that these remote and forgotten copyright holders might block the progress of others.
All this seems to follow easily from this untroubled acceptance of the “property” in intellectual property. Common sense supports it, and so long as it does, the assaults will rain down upon the technologies of the Internet. The consequence will be an increasing “permission society.” The past can be cultivated only if you can identify the owner and gain permission to build upon his work. The future will be controlled by this dead (and often unfindable) hand of the past.
CONCLUSION
There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. Seventeen million have already died. Seventeen million Africans is proportional percentage-wise to seven million Americans. More importantly, it is seventeen million Africans.
There is no cure for AIDS, but there are drugs to slow its progression. These antiretroviral therapies are still experimental, but they have already had a dramatic effect. In the United States, AIDS patients who regularly take a cocktail of these drugs increase their life expectancy by ten to twenty years. For some, the drugs make the disease almost invisible.
These drugs are expensive. When they were first introduced in the United States, they cost between $10,000 and $15,000 per person per year. Today, some cost $25,000 per year. At these prices, of course, no African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of Zimbabwe. At these prices, the drugs are totally unavailable.[1]
These prices are not high because the ingredients of the drugs are expensive. These prices are high because the drugs are protected by patents. The drug companies that produced these life-saving mixes enjoy at least a twenty-year monopoly for their inventions. They use that monopoly power to extract the most they can from the market. That power is in turn used to keep the prices high.
There are many who are skeptical of patents, especially drug patents. I am not. Indeed, of all the areas of research that might be supported by patents, drug research is, in my view, the clearest case where patents are needed. The patent gives the drug company some assurance that if it is successful in inventing a new drug to treat a disease, it will be able to earn back its investment and more. This is socially an extremely valuable incentive. I am the last person who would argue that the law should abolish it, at least without other changes.
But it is one thing to support patents, even drug patents. It is another thing to determine how best to deal with a crisis. And as African leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly below the market price.
In 1997, South Africa tried one tack. It passed a law to allow the importation of patented medicines that had been produced or sold in another nation's market with the consent of the patent owner. For example, if the drug was sold in India, it could be imported into Africa from India. This is called “parallel importation,” and it is generally permitted under international trade law and is specifically permitted within the European Union.[2]
However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association characterized it, “The U.S. government pressured South Africa. . . not to permit compulsory licensing or parallel imports.”[3] Through the Office of the United States Trade Representative, the government asked South Africa to change the law—and to add pressure to that request, in 1998, the USTR listed South Africa for possible trade sanctions. That same year, more than forty pharmaceutical companies began proceedings in the South African courts to challenge the government's actions. The United States was then joined by other governments from the EU. Their claim, and the claim of the pharmaceutical companies, was that South Africa was violating its obligations under international law by discriminating against a particular kind of patent—pharmaceutical patents. The demand of these governments, with the United States in the lead, was that South Africa respect these patents as it respects any other patent, regardless of any effect on the treatment of AIDS within South Africa.[4]
We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't have access to drugs. Poverty and the total absence of an effective health care infrastructure matter more. But whether patents are the most important reason or not, the price of drugs has an effect on their demand, and patents affect price. And so, whether massive or marginal, there was an effect from our government's intervention to stop the flow of medications into Africa.
By stopping the flow of HIV treatment into Africa, the United States government was not saving drugs for United States citizens. This is not like wheat (if they eat it, we can't); instead, the flow that the United States intervened to stop was, in effect, a flow of knowledge: information about how to take chemicals
that exist within Africa, and turn those chemicals into drugs that would save 15 to 30 million lives.
Nor was the intervention by the United States going to protect the profits of United States drug companies—at least, not substantially. It was not as if these countries were in the position to buy the drugs for the prices the drug companies were charging. Again, the Africans are wildly too poor to afford these drugs at the offered prices. Stopping the parallel import of these drugs would not substantially increase the sales by U.S. companies.
Instead, the argument in favor of restricting this flow of information, which was needed to save the lives of millions, was an argument about the sanctity of property.[5] It was because “intellectual property” would be violated that these drugs should not flow into Africa. It was a principle about the importance of “intellectual property” that led these government actors to intervene against the South African response to AIDS.
Now just step back for a moment. There will be a time thirty years from now when our children look back at us and ask, how could we have let this happen? How could we allow a policy to be pursued whose direct cost would be to speed the death of 15 to 30 million Africans, and whose only real benefit would be to uphold the “sanctity” of an idea? What possible justification could there ever be for a policy that results in so many deaths? What exactly is the insanity that would allow so many to die for such an abstraction?
Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. They push a certain patent policy not because of ideals, but because it is the policy that makes them the most money. And it only makes them the most money because of a certain corruption within our political system—a corruption the drug companies are certainly not responsible for.