Why America Gets Copyright Correct and (Some) Libertarians Do Not

It’s an interesting phenomenon—issues we thought were long settled in American politics are being re-litigated, including tax policy, food stamps, and even the role of the federal government in general.  Therefore it’s perhaps not surprising that the issue of copyright has come under question. Historically, conservatives have been supporters of strong copyright protection because for them a key function of government was the protection of property rights.  These conservatives have long accepted and even embraced the role of the state to grant and enforce copyright status.

However, there is one strain of conservative thinking that actually favors limited or even no copyright enforcement. With their overarching focus on freedom, some libertarians now argue that copyright, as the grant of monopoly by government, impinges on the freedom of individuals.  Because for these libertarians, liberty trumps property rights, individuals should be free to use digital content in ways they want and content holders, not others such as digital intermediaries or governments, should be responsible for policing its use.

We see this in the recent writings of libertarians such as Simon Lester, a prominent trade policy analyst for the Cato Institute, economists Michele Boldrin and David Levine, and Derek Khana, former staffer for the Republican Study Committee (now a Yale Law Fellow with the Information Society Project.)  Khana, in particular, has become a minor digital celebrity because it is so out of character for conservatives to question copyright.

Khana gained his fame after he issued a blog post (apparently without the approval or awareness of his supervisors) when he was a staffer for the Republican Study Committee that argued that, “Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.”  In his framing, copyright hinders the freedom of 16 year old Americans to remix songs others wrote and recorded and sell their compendium collections to others.

But Khana is not alone.  Libertarian law professor Tom Bell writes, “Apologists note that copyright encourages expression, but promoting welfare does not equate to protecting freedom.”19 This is akin to libertarian patron saint Friedrich Hayek’s comment, “personally, I should much prefer to have to put up with some such inefficiency than have organized monopoly control my ways of life.”

Economists Michele Boldrin and David Levine argue in Economic and Game Theory: Against Intellectual Monopoly that unhindered competition is the best economic system and since copyright hinders this, it should be abolished. They would go so far as to require that all content, including blueprints and designs, must be made public and allowed to be copied and that “we set as a goal complete elimination of intellectual property?”

More recently, Lester, in an op-ed for the National Interest,  argued that that copyright policy is a violation of our freedom.  Using the infamous example of Happy Birthday being under copyright until 2030 (95 years from registration in 1935), Lester argues that the longer terms of protection embraced by the United States promote economic nationalism, i.e. a hidden subsidy to U.S. content producers.

Both Lester and Khana single out the length of the U.S. copyright term—life of the author plus 70 years, 95 years if it is a corporate author—as one major flaw. For them, the history of copyright protection in the United States points (increasingly longer terms of protection over time) indicates that there should be less excessive protection, and not more. In other words, they advocate a return to shorter period of protection from an earlier version of the law, such as 14 or 28 years.

Unfortunately, what they aren’t taking into account is that with innovations like the Internet, music (and movies and books and TV shows) can influence generations far beyond their initial ambit. I’m a millennial who grew up with Justin Timberlake and Britney Spears, but that doesn’t mean I can’t stream Billie Holiday and Frank Sinatra, while simultaneously enjoying Twin Peaks and Casablanca. (And believe me, I do.) We’re no longer living in a world where the death of the author signals the death of their influence. And that means that the family of the author is entitled to earn a fair return on his or her artistic contribution.

This rings even truer for corporations, which, unlike individuals, are in theory timeless.  The longer term for corporations is justified on the fact that without it companies could see significant revenue loss from content that still has significant commercial value. Consider the case of Disney’s Snow White: the copyright still exists on Disney’s version of the story because it is a classic. Disney still has incredible revenue potential in theme parks, costumes, books, etc. In addition, there is always the promise of a new generation that has yet to discover the film. The ability to earn profits in this long continuous form is also what incentivizes Disney to make the Princess movies — why would Disney bother with Rapunzel if they didn’t think it had the same potential as Snow White?

And just as importantly, without long copyright protection the U.S. economy loses a valuable source of export revenue as our global leadership in content industries would be for naught if other nations stopped paying us.  We buy their cars and DVD players.  They buy our music and movies.   The big difference is that without strong copyright protection we can’t get their cars for free, but they can get our movies, music, software, video games, etc. It also means they have the ability to copy and reproduce the content (think unauthorized sequels) for a profit themselves.

Indeed, a key goal of copyright is to enable a healthy production system that includes not only productivity, quality and innovation, but also national competitiveness. As such, it is import to focus on the impact of copyright regimes on the overall production system, including the ability to produce higher quality and more innovative content. This is why trade talks that spread a system enshrining this—like that of the United States—are important. For example, strong copyright enables the production of more complex, expensive products, particularly in movies, where copyright enables studios to invest tens of millions of dollars in high-tech special effects. But most importantly, strong copyright protections help preserve and create jobs—many of them paying higher wages—and economic growth in nations, such as the United States, which specialize in the production of copyrighted content and attempt to sell it around the world.

It’s also important to note that the protection of original content is a far different concept than upgrading and innovating upon the story of Snow White (from the Brothers Grimm), accomplished in ABC’s television show Once Upon a Time, Universal Pictures’ Snow White and the Huntsman and Relativity Media’s Mirror Mirror.  Thus, while Lester and Khana call for a “change” to the copyright terms, they aren’t calling for one based on the realities of international markets, technology advances and production theories in 21^st century. They’re calling for a return to copyright laws that were effective 100 years ago, but aren’t equipped to handle the vast dissemination of copyrighted works now.

In other words, the ability to make perfect copies at almost no cost and then distribute those copies around the globe is neither a continuation of the old production (CDs and theatrical releases) system, nor is it a development that signals an end to copyright because of freedom of information. Rather, it represents the development of a technology system that necessitates new rules to address the challenges associated with it. In my opinion then, sacrificing prosperity, innovation and artistic variety for free consumption and unfettered “liberty” is a raw deal: I’d rather see a new Disney princess than yet another tired sequel.