Universal Copyright Literacy: a perspective from the US

A few weeks ago, Chris wrote a blog post on the concept of Universal Copyright Literacy which led to an interesting exchange on twitter with a US law academic, Professor Mike Schuster (@Prof_Schuster). Prof Schuster subsequently got in touch offering to write us a guest blog post. He is based at the Spears School of Business at Oklahoma State University where he is an Assistant Professor of Legal Studies. Professor Schuster’s research focuses on intellectual property, with an emphasis how self-interested private parties influence the public domain. His research has appeared in a variety of academic journals, including the Wake Forest Law Review, the Houston Law Review, and the Michigan Telecommunications and Technology Law Review. He writes….

An understanding of copyright law is an increasingly important trait in the modern world. The issue of what is, or is not, covered by copyright comes up in both work and social life.   There is, however, a second—if commonly unappreciated—benefit of copyright literacy: understanding the proper scope of the doctrine and how can it significantly help or harm the public interest.

Copyright in the UK and the USA are utilitarian regimes—meaning that the laws are intended to benefit society. This goal is achieved in two ways. Copyright initially encourages creation of new works for public enjoyment. Second, citizens benefit when works enter the public domain after copyright protection ends. At that time, the public has the ability to use the work in any way free of charge. To serve these dual goals, copyright’s term must be long enough to encourage the creation of new works, but not too long such that it unreasonably delays entry into the public domain. Public understanding of copyright law is essential to achieving these goals.

In recent years, the length of copyright has ballooned to the life of the author plus 70 years. This term grossly exceeds the protection needed to encourage the creation of new works. Don’t believe me? See this brief from a group of economists—including no fewer than five Nobel laureates —which concluded that the recent 20 year extension of copyright’s protection (in the UK and USA) “provides essentially no incentive to create new works.” This lengthening does nothing to encourage new works, and actually harms the public by delaying entry into the public domain. As examples, for each needless year added to copyright’s term, it will be one more year until schools can make free copies of public domain books, until musicians can freely cover or sample old songs, and until home owners can copy famous works of art to hang on their wall.

So why has copyright law diverged so far from its utilitarian goal? The answer is lobbying. Large media companies have a financial interest in expanding the length of their copyrights and will pay lobbyists or make political donations to sway legislators in their favor. The recipient politicians—always needing to pay for future campaigns—are happy to accept the funds and extend copyright’s term so long as the new legislation doesn’t anger voters. The size of a politician’s bank account is immaterial if he or she has angered potential voters and will lose the next election.

The obvious question becomes, why isn’t the public outraged by term extensions that work against its interests? Citizens should be incensed that a purportedly utilitarian regime is working against the public’s interest by needlessly delaying entry into the public domain. Why has the citizenry continued to vote for legislators that supported the extension or have not worked to roll back copyright’s term?

My recent research argues that the answer lies in the public’s understanding of copyright laws (or, more specifically, its lack thereof). I found that—within a group of 1,000 survey respondents in the USA—a very low level of understanding was displayed. The group did not understand basic tenets of the system, including: 1. Copyright is meant to benefit the public, not enrich content owners, 2. Copyrights eventually end and the work falls into the public domain, and 3. Works in the public domain are free for the citizenry to use. It thus becomes clear that the public isn’t outraged at copyright’s unduly long term because it doesn’t know enough to understand that legislators aren’t protecting its interests.

That is where organizations such as UK Copyright Literacy come into play. It is imperative that the public understand copyright laws, such that it can advocate for a reasonable, utilitarian copyright system. At present, each of us is hampered by unduly long copyright terms, and the only means to correct the problem is via education about the issue.

What do you think? Is the public in need of universal copyright literacy? Are copyright laws failing to incentivise creativity? We invite a response to this guest blog post and look forward to continuing the debate.

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