Copyright laws and regulations aren’t keeping pace with modern technological change, but not for the reasons some seem to think. The basics of copyright are fully compatible with modern technology, but specific provisions enacted years ago to try to address long-gone business and technological problems are still on the books. Instead of solving yesterday’s problems, these sticky laws shackle today’s creative marketplace.
One of the great frustrations of copyright law is that, as explained below, although the fundamental bases of copyright law remain sound and are more important than ever before in today’s information economy, the Copyright Act is a statute wrapped in insider jargon and layers upon layers of complexity that rival the Internal Revenue Code – reflecting the piecemeal way many provisions of the Copyright Act get enacted in reaction to specific problems of the day and often due to intensive lobbying by affected industries. These attempts, even if well-intentioned, to make the Copyright Act responsive to modern needs have left parts of copyright law frozen in time. Once enacted, outdated provisions have remained on the books even though the provision was meant to address problems that haven’t existed for a very long time, creating a variety of real-world problems.
Examples abound of “sticky” provisions of the Copyright Act that were enacted as reactions to technical problems but remain in force today. For example, one finds provisions providing a government-run framework for licensing performances by coin-operated jukeboxes, as well as technology specific provisions regulating the manufacture and distribution of digital audio tape machines. There is a provision regulating VHS and Beta format analog video cassette recorders and 8mm analog video camcorders. And there is a provision meant to swaddle and protect the once-infant internet industries of the late ‘90s –companies that today are among the largest in the world. One also finds provisions meant to foster emerging community antenna television systems and backyard satellite dishes – precursors to today’s large cable and satellite systems. The need for government intervention to address these problems of the 1990s, 1980s 1970s – and even as far back as the 1900s – has long since disappeared. In some cases, the evolution of technology has rendered these provisions at best obsolete and at worst harmful. In other cases, past assumptions by Congress that turned out to be mistaken resulted in adoption of provisions that are similarly unproductive. And in still others, the policy objectives of these provisions have long-since been achieved, often despite, not because of, complex copyright laws. Yet the laws remain in place as irrelevant and even obstructive vestiges of now-outdated policies.
While many of these examples seem humorous and even harmlessly quaint, there are provisions have since outlived their usefulness or otherwise become an impediment to the very creativity and innovation the copyright law is designed to foster. This paper will explore two such provisions: one related to the posting and hosting of infringing video and music content, and the other related to the retransmission of programming by satellite operators. These laws, when enacted were complex, opaque, chose winners and losers in the marketplace, and froze in place the business models and technology of the moment. Neither laws serve the goal of ensuring that incentives and protections remain strong so creativity and innovation can flourish. In this age of rapid innovation and change in the way movies, music, books, journalism, software and other cultural and innovative works are created and consumed, it is important to have laws that are general-purpose, transparent, and market-based, allowing people now and in the future the freedom to decide and negotiate new uses of creative works.
Copyright law plays an essential role in American cultural and technological leadership. By getting the government out of the business of setting the terms and conditions for cable and satellite retransmission of broadcast television and by revitalizing the DMCA, Congress could enable creators to further invest and experiment with new content and distribution models, and spend more time and resources composing new works – to the benefit of consumers, creators and the strength of our cultural and creative economy.
Adam Mossoff (Chair)
This paper was the work of multiple authors. No assumption should be made that any or all of the views expressed are held by any individual author. In addition, the views expressed are those of the authors in their personal capacities and not in their official/professional capacities.
To cite this paper: A. Abbott, et. al., “Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It”, released by the Regulatory Transparency Project of the Federalist Society, October 27, 2017 (https://regproject.org/wp-content/uploads/RTP-Intellectual-Property-Working-Group-Paper-Copyright.pdf).