On the other hand, dueling “content” and “tech” hearings may inadvertently reinforce a false tension, implying that copyright policy is an inter-industry cage fight over some giant volume knob. Even the Supreme Court reinforced this, saying in the 2005 Grokster case, “The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.”
It is true that draconian, SOPA-style copyright regulation could crush the $4.2 trillion Internet economy, and conversely, that repealing copyright would do grave harm to the content industry. But generally, such extreme proposals aren’t on the table.
The content industry benefits as much from balanced copyright as the tech sector. Just last week Sony Pictures Classics prevailed on a fair use defense over the estate of William Faulkner, which ridiculously took Sony to court for having the temerity to quote nine words from Faulkner in a film. The judge’s decision received more attention for its shout-out to ‘Sharknado,’ but was actually newsworthy for demonstrating that even Hollywood needs reasonable limits to copyright protection. In fact, research for CCIA found that industries benefiting from limitations and exceptions to copyright generate $4.6 billion in revenue, representing 17 percent of U.S. GDP, and 17 million U.S. jobs. Conversely, the tech sector holds copyrights too. A robust and balanced copyright system benefits both industries.
Moreover, both sectors can benefit from one another. The content industry’s future is largely digital. Digital sales have driven total music purchases to record highs. Legitimate online offerings provide new revenue for creators, and research shows that viable market options are the best strategy for mitigating infringement. At the same time, many technology products and online services are more desirable to consumers when they provide access to premium, commercial content. The two sectors are not necessarily interdependent, but they can be symbiotic.
Not only is the ‘tech versus content’ perspective unhelpful, it also represents an incomplete worldview. It overlooks entirely the most important stakeholder of all: the public. The touchstone for good copyright policy isn’t any one industry’s welfare. The complexities of modern copyright -- a bundle of government-granted rights to exclude, various limitations and exceptions, notice and takedown compliance, the regulatory burden of rate setting and triennial rulemakings involving anticircumvention and cell phone unlocking and so on -- all of this is a means to an end. The ‘end’ is more creative works, for the benefit of society. Thanks to the Internet, there is more creativity in terms of digital content at an affordable price than ever before.
Government-granted exclusive rights are another mechanism to get to the same result. If we want to know if that mechanism works, if the means are achieving the end, we should ask the people it is designed to serve. Users, including educators, libraries, and consumers should be at the table as well.
Schruers is vice president for Law and Policy at the Computer & Communications Industry Association.