Effective copyright in a networked world

25 March, 2009

Attended a very interesting and provocative lecture last night by William Patry, Senior Copyright Counsel at Google, Inc. and author of the 6,000-page epic Patry on Copyright, reportedly the world’s largest copyright reference work.

Patry was giving the SCL Annual Lecture in London. This year’s lecture was dedicated to the late Prof Sir Hugh Laddie, who died last year, and the topic, “Crafting an Effective Copyright Law”, was taken from a statement by Sir Hugh that “we do not need a strong copyright law, but rather an effective copyright law”.

The full lecture should be available on the SCL website before too long (and I’ll add a link when it is), and I highly recommend listening to it. Patry’s thesis was that copyright should not be treated as private property, but as a government programme to promote creativity and innovation by legislative means. Therefore copyright laws – and in particular any proposal to extend their scope – should be assessed on the basis of empirical data rather than appeals to what is “right and just” or the “moral case at the heart of copyright” (to quote Andy Burnham’s vacuous justification for extending the term of copyright for sound recordings).

I think Patry’s rhetorical characterisation of copyright as a government programme is a fruitful one, which can encourage a more level-headed assessment of copyright (and indeed other “intellectual property”) laws. Copyright is a good thing, but its effectiveness needs to be scrutinised continually, and it should be remembered its purpose is to benefit society as a whole by encouraging the creation of more copyright works, not simply to enrich copyright owners (not that those two ambitions are mutually exclusive, of course).

Equally, I think Patry overstated the case against treating copyright as a property right. He is correct that referring to copyright as “property” imports a wide range of legal, moral and emotional connotations which can be problematic (“An Englishman’s copyright proprietorship is his castle”, perhaps?). However, there is also a strong pragmatic case for treating copyright as property, in that it allows copyright to be assigned, licensed, bequeathed, valued and so on like other forms of property.

The big lesson, though, is that attempts to use copyright to protect business models that have been superseded by new technologies – not least the growth of high-speed internet connections and the “pervasive network” – is ultimately harmful to society and indeed to copyright owners themselves. Technology is going to drive new ways both of doing business and of accessing copyright material, and copyright owners cannot expect the law to protect them from the hard work of adapting to this. That’s just a bailout by another name.