There was an interesting turn of events that began during the hearing last Thursday before the House Subcommittee on Courts, Intellectual Property, and the Internet. Parker Higgins, a self-proclaimed “EFF activist,” tweeted the following:
Aistars lays bare that she understands copyright is really about control. Doesn't bode well for freedom of speech.
— Parker Higgins (@xor) July 25, 2013
Higgins is referring to the Executive Director of the Copyright Alliance, Sandra Aistars, who testified at the hearing. The Copyright Alliance is a “non-profit, non-partisan public interest and educational organization representing artists, creators, and innovators across the spectrum of copyright disciplines” that is headquartered in Washington, D.C. Terry Hart, who runs the Copyhype blog (where I am a guest-blogger) in his personal capacity, is the Director of Legal Policy there.
What struck me as odd about Higgins’s tweet is that he made it sound like Aistars had let some dirty little secret out of the bag. She admitted that she thinks “copyright is really about control.” She admitted it!
In a post entitled “Fair Use Creep,” and Other Copyright Bogeymen, Appear in Congress published later that day on the EFF blog, Higgins followed up on his comment from Twitter and expanded on his notion that “control” is a dirty word:
Most striking was the repeated assertion that copyright should be understood primarily as a mechanism of control. Testimony from Sandra Aistars, the director of the Copyright Alliance, was explicit on this point. That’s funny, because we thought it was supposed to be a mechanism to promote new creativity. Ironically enough, Aistars also claims that copyright “is about choice” and “freedom.” Choice and freedom for some people, that is: under her construction of copyright, a grant of copyright is designed to concentrate all of the choice with the copyright owners, at the expense of the public.
Later that day, the President of the Institute for Policy Innovation, Tom Giovanetti, responded to Higgins in a blog post entitled Copyright, Control, and Censorship. Giovanetti noted that all property involves an element of control by the property owner:
But of course copyright involves control, and rightly so. Control is implied in all property rights. Without some degree of control, you cannot enter into contracts, you cannot license, and copyright becomes impotent—little more than a credit or an attribution. But a credit alone does not incentivize creation, innovation, and distribution of new works. Ownership always involves a degree of control.
Finally, Techdirt’s Mike Masnick, ever the stalwart copyright denialist, jumped into the fray the next day to fault Giovanetti in a blog post entitled Why Yes, Copyright Can Be Used To Censor, And ‘Fair Use Creep’ Is Also Called ‘Free Speech’:
Giovanetti insists that copyright should be about “control.” *** Except, as Higgins noted, the purpose of copyright has never been about “control.” It has always been to “promote the progress of science” for the benefit of the public. *** Of course, Giovanetti’s claim that “property rights needs control” is misleading for a whole variety of reasons. *** [W]hile it’s true that for true property part of the point of property rights is to “control,” when you’re talking about speech and expression—things that are in abundance—it makes no sense to use it as a tool for control, for a variety of reasons. The reason you want control of tangible property is to avoid having someone else claim it. But copyright is not about that at all. It is, according to the Constitution, solely a tool to promote the progress of knowledge and information. Furthermore, we already have aspects of copyright law today that recognize it’s not about control—including things like compulsory licenses.
Are Higgins and Masnick correct to state that copyright is not about control? Of course not. By design, control is a central feature of copyright law. It is nothing to be ashamed of, nor is it even remotely a secret. Giovanetti hits the nail on the head when he says that “of course copyright involves control, and rightly so.” Authors are given the “ability to control and be compensated for their works” because that enticement is what “makes it worth their while to be creative.”1 Moreover, Masnick’s claim that, since copyright involves “speech and expression—things that are in abundance—it makes no sense to use it as a tool for control,” can be easily disposed of. We grant copyright owners control over their works despite copyright’s nonrivalrous nature because that control is what makes meaningful the incentives provided by copyright. Why Masnick ignores this control-as-incentive function of copyright while falsely analogizing to the rationale behind control with respect to tangible property is anyone’s guess.
But giving copyright owners control over their underlying works is not the only thing copyright is concerned about, and Higgins goes too far when he claims that Aistars thinks that “a grant of copyright is designed to concentrate all of the choice with the copyright owners.” Nothing in her written testimony suggests to me that her thinking is so black-and-white and devoid of nuance that she thinks all control should reside in the copyright owner. Nor does Masnick’s point about how “we already have aspects of copyright law today that recognize it’s not about control” do anything to disprove that copyright is also about control—pointing out aspects where a rightholder does not have control does not negative the aspects where the rightholder does. In reality, copyright is about finding the right balance of giving rightholders enough control to make the incentives worthwhile, but not so much control as to unnecessarily suffocate the advancement of knowledge and technology.
The Copyright Clause provides: “The Congress shall have Power . . . To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . . .”2 Congress exercised this power by enacting Section 106 of the Copyright Act of 1976 which grants to authors certain enumerated, exclusive rights, such as the rights of reproduction and distribution. “Exclusive,” coming from the Latin verb exclūdō, exclūdere, means to the exclusion of others—what makes the rights exclusive is the rightholder’s ability to exclude others from exercising them. While “the right to exclude is essential to the concept of property,” it is neither the “the only characteristic, nor is it the most fundamental.”3 Other elements, such as “acquisition, use, and disposal,” are necessary “to give full meaning to the concept of property.”4 Inexorably, copyright, like all property rights, “is about allocating control over the use of resources.”5 Each of the exclusive rights granted by Section 106 represents “the fundamental right of a property-holder to control the way in which one’s property may be used.”6 It is no coincidence that the exclusive rights granted by Section 106 correspond with the typical ways in which a copyright may be exploited.
The Copyright Clause can be thought of in terms of means and ends, where the ends are the promotion of progress and the means are the securing to authors exclusive rights in their works. Through copyright, Congress guarantees “to authors . . . a reward in the form of control over the sale or commercial use of copies of their works” in order “to encourage people to devote themselves to intellectual and artistic creation.”7 These particular means are not the only ones available to Congress for promoting the progress, and Congress may choose to promote the progress under several other of its enumerated powers, such as the Commerce Clause or the Necessary and Proper Clause.8 Nor is it necessary that each work individually promote the progress in order to qualify for copyright protection—so long as the copyright system as a whole generally promotes the progress, it is constitutional.9 Furthermore, by not requiring each individual work to promote the progress, Congress has removed the chilling effect that the possibility of governmental rejection of a given work would otherwise have.10
The protection afforded by the Copyright Act “has never accorded the copyright owner complete control over all possible uses of his work.”11 Instead, copyright law has always been about giving copyright owners only some control over their works as the law seeks to find “a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works.”12 This notion of balance is critical to copyright theory—granting rightholders too much control is just as bad as granting them too little. Like Goldilocks, the trick is to find what is “just right.” It is, of course, the province of Congress “to decide how best to pursue the Copyright Clause’s objectives.”13 And it almost goes without saying that reasonable minds can and do differ as to what the proper scope of copyright protection should be.
Balance is a recurring theme in the Supreme Court’s copyright jurisprudence. As the Court stated in Aiken:
The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.14
And as the Court reiterated in Sony:
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. ***
As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors . . . in order to give the public appropriate access to their work product. Because this task involves a difficult balance between the interests of authors . . . in the control and exploitation of their writings . . . on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand, our . . . copyright statutes have been amended repeatedly.15
While the Court in Sony refers to the public gaining access to works “after the limited period of exclusive control has expired,” it is clear that Congress has decided it prudent to limit the control of rightholders during the time the exclusive rights are in effect. As the introductory sentence to Section 106 states, the exclusive rights granted to rightholders are “[s]ubject to sections 107 through 122” of the Copyright Act.16 Those sections include limitations on the exclusive rights such as fair use, reproductions by libraries, first sale, and compulsory licenses. Thus, it is evident that Congress has decided that the proper balance entails not only granting to authors certain limited rights, but also that those limited rights should themselves be subject to many limitations as necessitated by countervailing interests. For example, the idea/expression dichotomy and the fair use doctrine ensure the harmony of copyright law with our most-cherished First Amendment values.17
This need to balance competing interests becomes especially apparent whenever a new technology is developed that can be used to exploit a copyright. The key to finding the right balance requires that “[c]reators should maintain sufficient control over new markets to keep the copyright incentive meaningful, but not so much as to stifle the spread of the new technologies of dissemination.”18 With each new technology that affects the exploitation of a copyright, there is the inevitable difficulty in determining how much control, if any, copyright owners should be permitted to exert. Sometimes the answer is simply “none,” as with the VCR when the Supreme Court found that certain uses of it were fair ones.19 Sometimes the answer is “none,” yet Congress intercedes “to assure copyright owners some form of compensation from the new means of exploitation” in lieu of control, as with compulsory licenses.20 And sometimes when the balance is seen as shifting too far away from copyright owners, Congress steps in and attempts to shift the balance back as it did with the passage of the DMCA.21
The point of the foregoing is that copyright law is and always has been about control; control is fundamental to copyright theory. All property law involves determining how much control to give to rightholders, and copyright is no exception. Copyright law presents its own unique considerations, no doubt, and the task of Congress is difficult as it determines where to strike the balance that it deems proper between the competing sets of claims as to what is best for the public good. But when considering where to strike this balance, it should be remembered that what is good for authors is often also good for the public.
As the Supreme Court said in Eldred:
[T]he economic philosophy behind the Copyright Clause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors. Accordingly, copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge . . . . The profit motive is the engine that ensures the progress of science. Rewarding authors for their creative labor and “promoting . . . Progress” are thus complementary; as James Madison observed, in copyright “the public good fully coincides . . . with the claims of individuals.” JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.22
It is rather disheartening to see copyright opponents deny that control is part of the bargain envisaged by the Copyright Clause. When Higgins says that he thinks copyright is not about control since it is instead “supposed to be a mechanism to promote new creativity,” he is completely ignoring the fact that copyright promotes new creativity by giving authors control. And while Masnick acknowledges that “according to the Constitution,” copyright is “a tool to promote the progress of knowledge and information,” he is auspiciously disregarding that the means provided in the Copyright Clause for doing so are to secure to authors exclusive rights in their works—in other words, to give them control. There is, of course, nothing wrong with considering whether countervailing interests dictate that authors should not be given too much control, but one would hope that the skeptics would at least not pretend like “control” is necessarily a dirty word as the discussions continue over the pending revisions to the Copyright Act.
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- Jane C. Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101 Colum. L. Rev. 1613 (2001). [↩]
- U.S. Const. Art. I, § 8, Cl. 8. [↩]
- Adam Mossoff, What is Property? Putting the Pieces Back Together, 45 Ariz. L. Rev. 371, 376 (2003). [↩]
- Id. [↩]
- Christopher M. Newman, A License Is Not a “Contract Not To Sue”: Disentangling Property and Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101, 1111 (2013). [↩]
- Mossoff, 45 Ariz. L. Rev. at 425. [↩]
- Goldstein v. California, 412 U.S. 546, 555 (1973). [↩]
- See, e.g., Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1565 (Fed. Cir. 1988). [↩]
- See, e.g., Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 859-60 (5th Cir. 1979); Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (“The constitutional command, we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a system that promotes the Progress of Science.”) (internal quotations and citations omitted). [↩]
- Mitchell, 604 F.2d at 860. [↩]
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984). [↩]
- Stewart v. Abend, 495 U.S. 207, 228 (1990); see also Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 580 (1985) (Brennan, J., dissenting) (“Congress thus seeks to define the rights included in copyright so as to serve the public welfare and not necessarily so as to maximize an author’s control over his or her product.”). [↩]
- Eldred, 537 U.S. at 212. [↩]
- Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). [↩]
- Sony, 464 U.S. at 429. [↩]
- 17 U.S.C.S. § 106 (Lexis 2013). [↩]
- See, e.g., Eldred, 537 U.S. at 218-21; Golan v. Holder, 132 S.Ct. 873, 889-94 (2012). [↩]
- Ginsburg, 101 Colum. L. Rev. 1613. [↩]
- See Sony, 464 U.S. at 447-56. [↩]
- Ginsburg, 101 Colum. L. Rev. at 1616; see 17 U.S.C. § 115 (compulsory license for making and distributing phonorecords). [↩]
- See Digital Millennium Copyright Act of 1998, Pub. L. 105-304, 112 Stat. 2860; codified in scattered sections of Title 17. [↩]
- Eldred, 537 U.S. at 269 n.18. (internal quotations, citations, and brackets omitted). [↩]