Since the release of the Republican Study Committee’s copyright reform report several weeks ago, a discussion has ignited among various interest groups about whether a fundamental revision of copyright law is needed. Part of this discussion has been the serious backlash to the RSC report, with critics suggesting the report’s author, a young conservative staffer named Derek Khanna, did not adequately understand some of the principles of the copyright system. However, many others think that the debate Khanna’s report sparked is long overdue and welcome the opportunity to engage in a discussion of the fundamental problems our current intellectual property laws create for contemporary consumers and businesses in the digital age.
The RSC copyright report, titled “Three Myths about Copyright Law and Where to Start to Fix It,” decried the deleterious impact of the existing copyright regime on innovation and access to information, and suggested reforms in four key areas: (1) the release of excessive statutory damages; (2) an expansion of fair use; (3) creating disincentives for false copyright claims; (4) and sharply limiting copyright term limits. The response was swift from the traditional content industries. The report was pulled and later disavowed by a party spokesperson after heated protests by the powerful movie and music lobbying groups, the MPAA and RIAA.
After such a swift rejection, one might expect that Derek Khanna would be buried along with his report in so deep a hole his voice would never again be heard on the subject of copyright. But Khanna has not disappeared from the copyright debate that he helped to surface—in fact, he has been newly active on Twitter (at @dkhanna11) and has even promoted the use of a hashtag, #FixCopyright, to gather an online discussion of copyright reform. He has also been meeting with various intellectual property activist groups in Washington and has generally made himself available to discuss some of the ramifications of his report and its contents.
Given the encouragement Khanna has provided for continued discussion of the report, PW took advantage of the opportunity to ask him a series of questions. And while his report pulled no punches, it is clear that Khanna himself is reticent to discuss the impact of the report—and what might happen next—in much detail. As you’ll see below, I posed a wide set of queries relating to the current copyright discussions, from the level of interest in copyright by the Republican Party to the prospects for change in fair use and first sale to accommodate our still emerging digital culture. To many of these questions, I received a polite “No comment,” and to others only brief responses. I wasn’t surprised. But here’s most of our exchange, with a few minor grammatical edits for clarity.
Obviously, you were aware that much of the report was counter to recent legislative priorities. What about the reaction most surprised you?
That some people read the memo to imply that all copyright is bad, which was not my argument at all.
What do you think are the advantages to the Republican Party of pursuing copyright reform? I’m sure that some members of the Party have given you support. Have you gotten any positive feedback on the report, regardless of whatever concerns the party might hold?
I have heard from several members [of Congress] and their staff that they are interested in working on this issue. Sorry, I’m a policy guy, so I can’t completely answer. But I just think it’s the right thing to do. And I think doing the right thing often leads to getting elected. So in that sense it’s good politics.
If there should arise an opportunity to develop new research into the economics of copyright, what studies would you want to see done?
This may already exist, but it would be terrific to see a cross-country study on copyright law, by country, specifically paying attention to the time period for copyright. I’m unsure how you would correlate successful policy, so that may be tough. Another study would be to look at before and after a change in time periods, and how it affected the incentive to producers.
In your report, you proposed a particularly short initial term—12 years—with fees serving as disincentives for renewal. Yet internationally, the TRIPS treaty requires a minimum of life of the author plus 50 years, and many countries have adopted a life plus 70 rule. Should the U.S. take a lead in seeking a new, shorter international baseline for copyright terms?
I don’t care if the bad regulation is through a law or treaty—either way, I think it should go. I don’t know if we need a new international baseline at all, as there are several ways to proceed on this. I think that U.S. law should change, and that may require changing our treaty commitments. But my proposals would supersede existing legal structures, whether statutory or through treaty.
The report also calls for expanded fair use. However, some rights-holder organizations are seeking collective licensing frameworks to formalize certain types of digital conduct, frameworks that would restrict fair use. Do you think the American market and consumer are best served by a continued affirmative reliance on fair use, or do you believe digital content use needs to be regulated through licensing?
Many consumers, meanwhile, are starting to believe that the current copyright scheme provides no protection for them. Do you think Congress will clarify consumer protections so that Americans who think they are buying, not licensing, digital books, movies, and music can feel comfortable knowing that they own what they’ve purchased?
I haven’t seen any major movement to do so yet.
One of the more controversial aspects of the DMCA is the prohibition on circumvention of technical protection measures, such as DRM. Consumers expect as a matter of common sense that they should be able to move their e-books from one reading platform to another, or copy their DVDs to their computers. Do you think Congress recognizes the growing gap between consumer expectations and frameworks created to protect the revenue of traditional content industries?
Clearly, Khanna’s brief replies indicate a desire to keep a lower profile as the copyright reform debate emerges. But what clearly pierces the terseness and caution of Mr. Khanna’s responses is a belief that substantive change in copyright is finally reaching a point of legislative obligation. That kind of thinking is surely representative of a newer generation of policy activists—and working from a conservative base, Khanna’s thinking reflects the sense that years of copyright expansion has intruded too deeply into the mechanics of business innovation in the United States, and perhaps by extension, globally.
Despite the implications of some in the entertainment lobby, the character of copyright reform suggested by Khanna is not nihilistic. From the perspective of this new group of reformers, copyright serves its purpose only when it benefits the American people by fostering a society and an economy that promotes and rewards creativity, innovation in the arts and sciences, education, and invention. This is a debate about the fundamental purpose of copyright, a debate that very much contests the presumptions by industry that copyright is somehow a property right of creators, and instead recognizes copyright for what it truly is—a special gift awarded for a limited period of time to encourage the betterment of our country and its citizens. The goal, now, is to move the discussion toward a more informed, evidence-driven policy framework that acknowledges the original goals of the Copyright Act.
In such a discussion, there looms substantial promise for a generation of American artists, scientists, and individuals, who increasingly believe that the current copyright regime holds no protection for them as consumers, and little or no encouragement for creation, experimentation, and innovation. In fact, the conservative nature of current copyright has led to a dramatic lessening of respect for copyright law, as copyright has become more and more removed from what consumers rightfully expect in their use of the books, movies, and music they purchase. We see this tension and confusion when people voice their desire to copy DVD movies they’ve bought to their home computers and iPads, or to move their e-books from one device to another, or their desire to share a song or book they bought online. And we see it in the frustration of new startups like BookShout, which aims to create vendor-neutral online bookshelves for readers, or in the uncertain viability of the ReDigi music service, which permits people to resell digital music they have already purchased.
It is telling that in recent Supreme Court arguments involving first sale in the Kirtsaeng v. Wiley case, the Justices had many questions of legal interpretation, particularly of counsel representing John Wiley and the U.S. government. “I’m a person who’s just bought a book in England, and I’m bringing it home to my wife,” Justice Sotomayor asked of Wiley counsel Theodore Olson. “What provision gives me the right to do that?” Ultimately, Olson had no answer. Clearly, when questions as simple as this—concerning not even e-books but print books—have no clarity in our copyright statutes, it is time to make some changes.
As the digital world has progressed, more and more people are beginning to understand that some of the changes put forward by copyright industrialists threaten the open nature of the Internet, corralling consumers into the restrictive, proprietary platforms of vendors. We are fortunate that Derek Khanna’s report—whatever its status at the RSC—has now afforded us an opportunity to consider what kind of society we want to have in the 21st century, and how to redesign our copyright system to help get us there. This is an opportunity that has been sorely needed for a long time.