Jessica Litman’s book, Digital Copyright, was among the first books I read on the subject of intellectual property. Her book provides a fascinating history and critique of the process of drafting copyright legislation in the United States. I consider it a must-read for anyone seeking to familiarize themselves with U.S. copyright law and the challenges presented by recent technological developments. So I was very pleased when Professor Litman agreed to answer some of our questions. This semester we are reading her article entitled Creative Reading. Professor Litman is currently  the John F. Nickoll Professor of Law at the University of Michigan Law School. She is an expert on copyright and we are privileged to have her join our discussion.

Copygrounds: What is the road to copyright reform? In other words, is a statutory reversal of either the expanded duration or scope of copyright even possible? Or conversely, would it be possible to expand fair use provisions through an amendment to the Copyright Act?

Jessica Litman: I think the most plausible road to copyright reform is that the current beneficiaries will seek reform of provisions they are finding unworkable, and proponents of countervailing reforms will take the opportunity to attach their proposals to the legislation.  Thus, Congress enacted the provision allowing bars and restaurants to play radio and television without licenses from ASCAP and BMI (in 17 USC sec. 110(B)) as part of the 1998 law that extended copyright terms an additional 20 years. Similarly, Congress enacted the provisions giving Internet Service Providers a safe harbor from liability for their subscribers’ posts as part of the 1998 Digital Millennium Copyright Act, which gave copyright owners a new cause of action to prevent decryption of copy-protection.
The biggest headaches in the current law are the orphan works problem (the inability to find out who owns the copyright in a work one wants to license), the music licensing problem (the existence of different copyrights in musical works and sound recordings of those works makes it difficult to get a license to use works in the digital networked environment), and the issues raised by the Google Booksearch settlement. In addition, record labels want to expand their exclusive public performance right to cover broadcast radio; the recording and motion picture business wants Congress to pass legislation to empower the Department of Homeland Security to seize any Internet domain that hosts infringing content; the recording, music and motion picture business want better legal tools to deal with peer-to-peer file sharing, preferably in the form of Internet Service Provider liability. Any of these proposals might attract amendments to reform copyright in return for scratching particular industry itches.
That said, I think an amendment reducing the term of copyright is very unlikely. Reducing the scope may be easier to do in the courts, since the courts bear the blame for much of the expansion. I’ve actually written an article on copyright reform that might interest you. It’s a little longer than the piece you read, but you can download a free copy here: <http://www-personal.umich.edu/%7Ejdlitman/papers/RealCopyrightReform.pdf>.  You may also be interested in a different proposal for reform, posted here: <http://www.law.berkeley.edu/files/bclt_CPP.pdf>

Copygrounds: One of the arguments in favor of fan fiction is that it often increases the economic value of the copyright holder’s property. Is there any evidence to support this claim?

Jessica Litman: There’s no question that that was true with Star Trek and Star Wars. (I’m old enough to remember.) I cite some of the evidence in footnotes 4 through 12 of Creative Reading. I think it also proved true for Harry Potter. The trade-off is that it further reduces the copyright owner’s control over the way that the property is exploited. Reebcca Tushnet’s work on fan fiction is worth dipping into here, if you haven’t already read it.

Copygrounds: What is your opinion of the recent litigation campaigns targeting individuals for alleged copyright infringement? That is to say, is it appropriate for trade groups like the Recording Industry Association of America to use federal district courts in this manner?

Jessica Litman: I think that the Recording Industry could have used the litigation campaign much more successfully if it had simply paid the money it recovered to the artists whose recordings were the basis of the suits. As it is, I think the campaign did accomplish its goal of informing the general public that peer-to-peer file sharing isn’t legal, but at the cost of making the public aware that the copyright law currently on the books may not be reasonable, fair, or wise.

Copygrounds: In the absence of effective copyright enforcement do you think the production of creative works would grind to a halt? Or are there significant incentives to produce which transcend economics?

Jessica Litman: There’s never been any evidence that the incentive rationale for copyright actually works. It’s a plausible theory, but nobody has ever tried to prove it. Current research in neuropsychology  tends to suggest that copyright is not in fact an important motivator for creation; but it is possible that it is an important motivator for investment in works that are expensive to create or to  distribute. There are natural experiments one can think of (e.g., (1) did giving new rights to record companies in 1972, 1995 or 1998 result in more or better recordings? (2) Was a 1991 Supreme Court decision cutting back on  copyright protection for collections of  facts followed by a reduction of investment in database creation or maintenance?  (3) When Congress extended all copyrights by 20 years in 1998, did authors’ royalties suddenly jump?), but the data they yield are full of noise. If you want to read some scholarly work exploring this question, you might try:
(1) Julie Cohen, Copyright as Post-Industrial Property, 2001 Wisc. L. Rev __ (forthcoming 2011)
(2)Eben Moglen, Anarchism Triumphant:  Free Software and the Death of Copyright, 4 first monday #8 (August 1999), at <http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594>
(3) Diane Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries in Law (2011), at <http://www.bepress.com/til/default/vol12/iss1/art3/>.

Copygrounds: What is your opinion of Creative Commons licenses? Are these licenses a sufficient means of redressing the tendency of copyright law to privilege authors? rights over the rights of the public?

Jessica Litman: What’s important about Creative Commons licenses is that they enable authors who want to distribute and license their works without the help of a commercial publisher to do so. I don’t think copyright privileges authors’ rights over the rights of the public; I think it privileges publishers’ rights over the rights of both authors and the public. CC licenses allow authors to make their work available without forfeiting their rights or hiring an expensive lawyer. That’s a really really good thing. It can’t fully redress the mess that current copyright law makes, though, because it is only designed to fix a narrow problem.