Book Review: William F. Patry, How to Fix Copyright - Chicago-Kent

Reviewed by Brendan O’Brien

INTRODUCTION

What were the copyright implications of Danger Mouse’s 2004 mash up of an acapella version of Jay-Z’s The Black Album with samples from the Beatles’ LP The White Album?[1] How has the increase of free streaming content from providers such as Hulu affected illegal copying on BitTorrent?[2] What can policy makers do to make copyright work in today’s culture? These questions and many more are answered in Patry’s book, entitled “How to Fix Copyright”. This book is a practically laid out analysis of the problems that face the current paradigm of copyright policy and a response to many of the commonly held fallacies of the closely held tenets of why copyright policy is currently crafted the way it is; solutions for moving away from a one-size-fits-all policy to copyright protection are provided. This book is a valuable read for copyright policy makers whom are interested both in understanding the current status of copyright law and in ways to approach a solution that are tailored to results. These results will increase the economics of copyright holders, as well as create a culture in which works are used to promote creativity.

GENERAL INFORMATION

The book reviewed is entitled “How to Fix Copyright”. It was authored by William Patry, copyrighted in 2011, and published by The Oxford University Press located in New York, New York. It contains 319 pages, costs $21.95, and the ISBN number is 978-0-19-976009-1. It is available in hardcover and e-reader format.

The author is an American Lawyer specializing in copyright law. He obtained a Bachelor of Arts, and Master of Arts from San Francisco State University. He attended law school at the University of Houston. He has served as copyright counsel to the U.S. House of Representatives in the early 1990’s and participated in the elaborations’ on the copyright provisions in the Uruguay Round Agreements Act. He has authored seven volume treaties of U.S. Copyright law entitled “Patry on Copyright”. The author currently serves as Senior Copyright Counsel at Google.[3]

This book is divided into twelve chapters. It contains an endnotes section, as well as an index of terms used throughout the book and where they appear within the book. The book utilizes clear and concise statements to effectively illustrate the topic and sub-theses of each chapter.

The subject of this book is the social, economical, and legal issues that surround copyright law; furthermore, it proposes ways for lawmakers and policy makers to correct the issues that surround these issues. The following issues are examined from a global perspective, useful to those who study and make policy.

Why we don’t have effective copyright laws.
Whether incentives and deterrence work.
Abandoning the obsession with exclusive rights in favor of ensuring authors get paid.
Figuring out the proper length of copyright and the role of formalities.
Encouraging socially useful but unauthorized uses.

The author’s central thesis is that copyright policymakers should abandon the current one-size-fits-all approach to copyright law. They should instead create effective copyright laws tailored to specific copyright purposes. To pass effective laws, legislators must analyze existing thoughts about the copyright industry. These policymakers should work with political economists, empirically investigating the real-world consequences of how proposed laws will affect the production and situation of works of authorship. They should also examine the laws’ impact on access to those works, on innovation, and on economics.

The purpose of the book is to educate policy makers, politicians, and those interested in shaping the future of copyright law. This book explains the current system and the possible pitfalls with which it is associated. It also offers empirical evidence to prove that common notions of copyright use are incorrect. For those unfamiliar with the details of the current landscape of copyright policy, this book is a helpful exposure of the copyright landscape and of several issues plaguing copyright policymakers, content holders, and content creators. For those more familiar with the topic, several proposals for how to address these issues are proposed. Regardless of the level of knowledge of the reader on the topic before approaching this book, it provides an exceptional overview of the issues, and background of copyright policy.

The author takes a step-by-step approach to the issues surrounding today’s copyright laws. He adequately explains the issue, the history surrounding the issue, common misconceptions leading to the current status of copyright policy regarding the issue, and then his approach to correcting the issue. Typically his rejection of the misconceptions is explained using verifiable statistics and graphs.

The book’s title “How to Fix Copyright” is simple and grabs the reader’s attention. The author prefers not to delve into copyright’s extensive history and far-reaching effects on economics, psychology, and culture, instead choosing to illustrate specific problems and provide solutions to fix them. While some of these solutions will require many cultures and countries working together to achieve them, a tangible solution is always provided. This book delivers what its concise title promises. Its objective – to educate policymakers on options available to them for future advancement of copyright policy – is met.

ANALYSIS

The book is divided into several chapters, which dissect the author’s thesis into small, easily digestible sections. They are appropriately titled, giving an accurate preview of the topic they will discuss.

Chapter One is entitled “Introduction: Unlearning Copyright” and sets the stage well for the following chapters. It is in this chapter that the author illustrates what will become a recurring theme throughout the book: that the current policy for approaching copyright, designed to fit one solution to every copyright problem, is antiquated. The author highlights that in order to correct this issue, updated business models for making copyrighted material available to consumers and users must be explored by content providers and copyright holders.[4]

Chapter Two is entitled “Replacing a Faith-Based Approach to Copyright with an Evidence-Based Approach”. In this chapter, the author indicates that in order to correct copyright, politicians and policy makers should utilize economic analysis to re-analyze existing copyright policy. The first step in correcting an outdated policy is to rethink the ways in which the population enacts policy. All proposals for reform should be viewed through the lens of an economic assessment of the pros and cons, as well as the costs of implementing the new policy.

Chapter Three is entitled “What Are Copyright Laws Supposed to Do?” It indicates that the traditional motives for strong copyright protection are as follows:

However this chapter argues that copyright is not the basis for creativity. In some instances, research has revealed that the production of creative goods is not positively affected by the strength of copyright. Creativity can be based upon copying.[5] This chapter urges that copyright is a winner-take-all system that has applied a single-minded, one-size-fits-all approach in its regulation and rulemaking. Finally, the chapter indicates that rather than provide respect for those who have created the work, it actually creates a top-focused approach, which has created gatekeepers and thereby limited production.[6]

Chapter Four is entitled “The Public Interest” and argues that while the public interest is said to be at the forefront of policy regarding copyright, it rarely is. Building on themes elucidated in chapter three, the chapter indicates that a single-minded approach to understanding public interest cannot be relied upon. Public interest can and does differ across different locations, cultures, and countries.[7] The author explicitly states in this chapter that he does not believe that the ultimate purpose of copyright is to place work into the public domain so that they may be freely used. He argues that few works have staying power beyond a decade, and that is the critical time that others should have to the works. Works whose authors have been dead for greater than fifty to seventy years will likely only be useful to scholars rather than the general population.[8] While considering the various policy considerations such as promoting public interest while obtaining a just reward for the creator is frequently cited as being the balancing act that must be maintained. This balance however is infrequently actually accomplished. This is due to political impediments to the balancing. True balancing relies upon the presumption that lawmakers are objective, neutral judges.[9] This is rarely true, as lawmakers are people that approach situations with their own biases and baggage. The chapter concludes with the statement that the balancing metaphor should be replaced with a property metaphor. In this paradigm, the balancing of interests must be completed without the heavy hand of property rhetoric.

Chapter Five is entitled “Law is Not the Solution to Business Problems”. This chapter highlights that laws and statutes might be the answer to some societal problems; however if there are non-legislative answers to the problems, these answers should be preferentially utilized.[10] Many copyright owners complain that not enough of the public is paying for their copyrighted work. The Author argues that while the common complaint this is a legal problem, it is not. The Author points out that this is a market problem and is symptomatic of the failure of the copyright system to adapt to changing market forces.[11] Many times the industry has adopted a “just say no” model to accepting change. Many believe that if they ignore the options for change, they will be able to keep the status quo.[12] Long-run profitability is the result of satisfying customer demand, not satisfying legal demands. A case study of the newspaper industry is offered to support this conclusion. An industry that was once a titan in many cultures has been sharply interrupted. While many blame the invent of internet search engines, the author offers evidence that decline in readership may be due to the inability of the newspapers to adapt their business models. As seen in the record industry, customers are no longer interested in purchasing full-length albums, but rather individual songs. In this chapter, the author draws connection between this and a newspaper which does not offer individual stories, but a full newspaper forcing customers to buy way more than they would ever want.[13] This chapter concludes with a look at the notion that content and copyright owners cannot compete with the free content providers like BitTorrent and file sharing. Three examples are provided that combat this notion. Neil Gaiman, a science fiction and comic book author indicates that sales of his material increased in areas where his material was shared. He attributes this sale to the idea that through sharing, more people were given a taste of his material and wanted more. Furthermore to this point, the comedy troupe Monty Python saw increase in their DVD sales over 20 years after they were originally popular. They attributed this increase to users uploading clips of their material to streaming services such as YouTube.[14]

Chapter Six, entitled “Does deterrence work?”, argues that a top-down approach to creating laws in order to stop copyright infringement will not work.[15] This chapter looks at the psychological element of why people choose to obey or break the law. In his book Why People Obey the Law, Professor Tom Tyler indicates that a law-abiding society is one in which people are motivated not by fears, but rather by the desire to act in appropriate and ethical ways.[16] The author in this chapter argues that only good business models and never the law are the solution to bad business models. The only way to get people to obey copyright laws, he states, is to have copyright laws that support good business models. Current laws don’t do this, and this is why people don’t believe in them and follow them.[17]

In Chapter Seven, “Abandoning Exclusivity and Getting Paid Instead”, the author begins to explain his thoughts for business models that will work. He argues that we need to move away from the idea and thought that copyright provides sole ownership. He believes this lens for viewing property in this manner is antiquated.[18] The author proposes several means to reduce administration rights of copyrighted material. Going to a universal system, rather than a country by country system is suggested, as well as a means to administer information about copyright owners, how to contact them, and how disputes will be handled if content creators are not appropriately compensated.[19]

Chapter Eight is entitled “The Length of Copyright is Damaging Our Cultural Heritage”. It indicates that the length of time for which copyright is valid is excessive and denies access to culture while de-incentivizing the creation of new works.[20] Several examples of the high cost to society in both chilling effect and in terms of economic cost are provided. The author however provides a view on how long copyrights should last. First he points to the multitude of studies offered in this area pointing to the benefits of reduced copyright terms. He believes policymakers largely ignore these studies.[21] The author echoes his earlier ideas by suggesting an economics-based approach to the copyright term, in which the present and future value of the copyright should be established, and the term should last until a preset value for the work has been reached.[22] This would result in differing copyright terms for different works, and would be radically different than the approach used in today’s policy.

Chapter Nine is entitled “Reimposing Some Formalities”, and begins with a discretionary note that this chapter contains a lot of the technical copyright information. This disclaimer is accurate as the chapter delves into the current state of the renewal requirement for copyrights. The chapter, after extensive technical discussion, postulates that copyright holders should be required to periodically renew copyright claims in order to increase the market accessibility to previously copyrighted material. The author therefore builds on the idea of copyright’s links to supply and the free market established in the previous chapters.

Chapter Ten is entitled “The Moral Panic over Fair Use” and examines fair use in the copyright world. The term moral panic is from a phrase that was made popular in the 1970’s and describes exaggerated reactions to changing morals.[23] These moral panics are also heavily attached to the notion of fair use by current copyright holders. Creativity arises from both authorized and unauthorized uses of copyrighted material. Fair use is essential for innovation, and strides should be taken to expand rather than limit fair use laws. Innovation in order to expand these laws will require a dynamic legal system that is flexible with growing technology.[24]

Chapter Eleven is entitled “The Answer to the Machine Is in the Machine – Is really a bad Metaphor”. In this chapter the author admits that he loves metaphors. This has become apparent in reading the preceding chapters. In this chapter the author also highlights that copyright holders may be afraid of technological change. They see this change has harmful to their copyright, and seek to avoid this technology at all costs. This explains the unwillingness of copyright owners and subsequently current copyright policymakers to adapt policy with the growing technology.[25]

Chapter Twelve is the final chapter. It is entitled “Effective Global Copyright Laws”. It discusses efforts of international bodies to create and unify copyright policy throughout history.[26] In this final chapter, the author provides one more metaphor and asks a simple question. The metaphor is “a rising tide lifts all boats”, and he questions if this is true of copyright policy. It does not come as a surprise that the author disagrees with this statement when it comes to copyright and intellectual property (IP) protection. He believes that while the international community is trying to create a unified standard of IP protection, they are in fact going further away from the dynamic approach that he proposes.

EVALUATION

The strength of this book is its ability to breakdown the seemingly complex issues surrounding copyright policy into manageable bite-sized pieces or chapters. There is strong use of empirical evidence throughout the book, supplied in a myriad of formats from text, to charts, to graphs. There is an appropriate amount of citations to outside sources, which provides outside reference to the various points analyzed, without overwhelming the reader with footnotes and endnotes. The use of issues that are associated with a younger generation such as music mashups and services such as YouTube and Hulu was refreshing. It is accessible to a younger reader base and provides the impression that the author is interested in solving issues that are real and affecting the world today, rather than postulating at an academic level on issues. Most refreshingly for every issue that is discussed that affects the copyright policy, a solution is quickly provided, resulting in a step-by-step formula for policymakers to view the issues affecting this industry from a different lens and to provide a solution.

Criticisms of this work are few and far between. While this reviewer appreciated the appropriately spaced endnotes, pinpoint citations to specific pages or in books or cases were not used. While this may mean little to those reading the book for expansion of knowledge or gaining an alternate view of the subject, this was difficult for an academic review of the article to delve into the cited sources for fact checking purposes. While there were no pinpoint cites provided, this reader was unable to find any factual errors in the book and therefore the lack of pin cites should not be viewed negatively by readers. Additionally, the use of charts and graphs presented in monochrome format was not as effective as could have been if offered in color. Several of the charts had many arrows, flows, and informational bullets, which may have been more effective if in color. The complexity of these graphs gave this reader the impression that these charts were originally developed in color, but reduced to black and white for the printing of the book. Finally, the author seemed to focus on the struggle between business and consumers. Little mention is provided to the other groups that have an impact in this area. These groups could include government instructions, special groups interested in opening copyright to the general public, and the role of content creator groups in maximizing copyright strength and life, which the author lumps into his definition of “big business”.

The thesis of this book is to abandon the faith-based approach and instead create effective copyright laws. It clearly explains the issues surrounding copyright law, and provides viable solutions to move away from a single solution model to a solution that will work with a variety of copyright interests. It changes the copyright paradigm by highlighting the need for legislators to be political economists in order to empirically investigate the real-world consequences of how proposed laws will affect the production and situation of works of authorship, as well as the laws’ impact on access to those works, on innovation, and on prices. The author of this book clearly sets out his intent for this in the opening chapters of the book, and by the end clearly and effectively does so.

[1] See William Patry, How to Fix Copyright (Oxford University Press 2011).

[2] See Patry, supra note 1, at 160.

[3] Wikipedia, William F. Patry, https://en.wikipedia.org/wiki/William_F._Patry (last visited April 16. 2017).

[4] See Patry, supra note 1, at 34.

[5] Id. at 90.

[6] Id. at 82.

[7] Id. at 131.

[8] Id. at 133.

[9] Id. at 137.

[10] Id. at 141.

[11] Id. at 141.

[12] Id. at 143.

[13] Id. at 152.

[14] Id. at 158.

[15] Id. at 163.

[16] See Jean-Robert Tyran & Lars P. Feld, Why People Obey the Law: Experimental Evidence from the Provision of Public Goods 21 (Jan. 2001), CESifo Working Paper Series No. 651, https://ssrn.com/abstract=290231.

[17] See Patry, supra note 1, at 165.

[18] Id. at 178.

[19] Id. at 183.

[20] Id. at 187.

[21] Id. at 198.

[22] Id. at 200.

[23] Id. at 211.

[24] Id. at 225.

[25] Id. at 237.

[26] Id. at 248.