June 26, 2005 · Lessig
So I posted a notice about the Register’s testimony about section 115. I’m in the middle of the cc-iCommons-Summit, so I didn’t have much time to say anything of substance. My post simply points again to the 1967 testimony about compulsory licenses, and it highlights the point about nondiscrimination.
From this, two highly respected (by me and many) commentators have offered a critique of my comment. Ernie and Joe Gratz both praise aspects of the Register’s proposal. They translate that praise into criticism of my comment.
I too would praise much in the Register’s proposal. She is right to identify the debilitating effects of the transaction costs in the existing system. And she should be praised for looking for new, creative ways to avoid those costs.
But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say “But in determining public policy and legislative change, it is the author – and not the middlemen – whose interests should be protected.” Almost exactly right, because in my view, we should be determining not just “the author” but “the authors” — the ecology of creativity enabled by copyright’s rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling.
So I am concerned with the fact that “[n]othing” in the proposal “obligates a copyright owner to utilize a MRO, but the increased efficiency of that structure provides an incentive for them to do so, just as they have all utilized performing rights organizations.” For I’m not convinced that the decision to include rights within a MRO is solely a function of transaction costs.
That will of course invite the question — “why should composers have fewer rights than authors”? (Joe criticizes the “massive and ongoing wealth transfer from song writers to record companies.”) My answer — which I’ve blathered on about elsewhere — is that this has it backwards. The restriction on speech — which every derivative right is — should have to justify itself. And that “justification for private rights,” as libertarian law professor Richard Epstein puts it, “has to be social.” The particular difficult justification presented by this extremely odd “private right” is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure “derivative rights” — remembering again that copyright was born with no derivative rights.
So yes, I too praise Ernie’s proposal to eliminate the “copy” right within copyright. I too agree with Ernie and Joe and the Register that we need a more efficient way license online content. But there is an important freedom that neither address that I think copyright needs to address: the right (for free or under fair and nondiscriminatory terms) to build upon culture.