- The Washington Times - Friday, January 24, 2003

The Supreme Court's recent affirmation of the fundamental importance of copyright protection in its Eldred decision underscores the need to ensure that effective copyright protection extends to the Internet. The copyright system extolled by the court promises to bring rich digital content to the Internet, benefiting millions of consumers of recorded music, videos and other popular digital content, including games and software. But pervasive piracy threatens to make copyright protection illusory on the Internet.

While the Justice's 7-to-2 ruling itself merely upholds Congress' authority to extend copyrights (in this case, by 20 years), their opinion and even the dissents emphatically affirms copyright's central role in providing incentives for the creation of content of all types. The court declared that "the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas … ."

Moreover, the court validated legislators' decision to extend the copyright term to promote investment in restoring and promoting existing works, exposing the fallacy of assuming the copyright's role is solely to promote the initial creation of the work. Copyright gives creators the incentive to continue investing to revitalize and promote existing works and to protect that investment through the ability to exercise creative control over how works will be portrayed to the public.

Even Justice Breyer in dissent recognized copyright's traditional rationale "act[ing] as an economic spur encouraging authors to create new works." He merely argued that adding 20 years to the existing 75-year term has almost no impact on incentives.

In stark contrast, the prolific piracy of digital content threatens to radically reduce the ability of creators to earn returns almost from the moment a work is released. It is now commonplace to have pirated versions of movies available on the Internet within days of their release in theaters including blockbusters like "Spiderman" and "Star Wars II." In the case of CDs, perfect copies have actually become available prior to commercial release. This threat arises because digital works can be copied perfectly and distributed broadly, at virtually no cost over the Internet, and peer-to-peer (P2P) services have enabled mass distribution from a virtually unlimited number of sources, confounding traditional means of protecting content.

As a result, the congressionally established system of promoting creation through copyright protection, lauded by the Eldred Court, threatens to become an empty promise for producers of digital content. Some say this is fine; let the content industries compete against free pirated content by building new and unspecified business models. But the court undermines this argument by reaffirming the vital role of copyright protection in creating marketable rights that are the foundation of business models. Rights to content simply are not effectively marketable if free pirated versions are broadly available.

The "engine of free expression" the court describes will not propel digital content if such piracy runs rampant. The cost could be enormous threatening to diminish the variety and quality of expression that form basic parts of everyday life music, movies, TV programs (and, increasingly, games and software).

Reliance on "marketable right" as envisioned by the court is ultimately in the best interests of consumers and producers of digital content, since the marketplace will best harness producers' energies in the service of consumers' desires. (Remember, as Judge Richard Posner has observed, "copyrights … rarely confer monopoly power.")

Moreover, as the court emphasized, this system also enhances the public domain. Because copyright protects only the original expression, "every idea, theory and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication." This inherent limitation ensures that the future of ideas is brightened, not dimmed, by effective copyright protection.

A variety of mechanisms may provide effective protection and thereby promote an efficient marketplace, including improvements to copyright enforcement or technological measures such as digital rights management (DRM). Reasonable people can differ as to means we should employ. But we must end the misguided debate over whether to protect digital content, and take up the difficult process of deciding how best to do so.


William F. Adkinson Jr. is senior policy counsel at the Progress & Freedom Foundation and fellow at its Center for the Study of Digital Property.

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