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The AmeriKat, five years ago, when she really
was a tiny little kitten |
It has been five years since the first Sir Hugh Laddie lecture at
UCL's Institute of Brand and Innovation Law. In June 2009, the world was coming to terms with the death of Michael Jackson, Justice Sotomayor (as she now is) had only just been nominated to the Supreme Court,
L'Oreal v Bellure was before the ECJ (as it then was) and the AmeriKat published
her first IPKat post. Sandwiched in between stories on biologics and the nomination of David Kappos to Director of the USPTO, was a story about Jammie Thomas-Rasset, the Minnesetoan mother who illegally downloaded and shared 24 songs and
was ordered to pay $1.92 million to four major musical labels. Back then the AmeriKat commented that the RIAA should have been concerned with the public perception of their litigation in these circumstances. The writing, she felt, was on the wall about how this saga would ultimately play out and it wouldn't play well for copyright law or litigation.
Fast-forward to five years later to a lecture theater in Gower Street in London where
Professor Hugh Hansen of Fordham Law School is making his closing remarks in the 5th Sir Hugh Laddie Lecture on the "Culture of the Public Domain". "Copyright owners are part of the problem [of the growing strength of the culture of the public domain]", he states. In support, he cites the poor choices of copyright owners in some litigation and the inability to judge reactions to their actions. Pacing the stage, he recounts the successful case the RIAA brought against a mother - probably Minnesetoan - who illegally downloaded music. Instead of taking the court award and settling for a reasonable amount, the RIAA instead decided to make an example of the defendant. This type of conduct, he argues, exacerbates the problem of the culture of the public domain.
["The problem of what, exactly?", Merpel asks.]
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| Professor Hansen |
Well, Merpel, let's rewind to the start of Professor Hansen's lecture. The culture of the public domain is a very American concept, commenced Professor Hansen, but it is spreading "like a virus". To illustrate the concept, Professor Hansen introduced the first actors of the evening - "The Traditionalists". The Traditionalists existed in a pre-digital world of small groups of technically challenged attorneys and traditional creative industries who held a natural law view of IP protection. This group of people considered that the truth of copyright law was that it is a natural law right which protects investment and benefits both creators and the public. The public domain, in this context, happens when these rights expire and this is considered a bad thing. In this traditionalist world there is "no concept of a public domain reservoir that we all want to tap into." Then there are the "Agnostics and Atheists". This group comprises of academics and others mostly from the tech side who want to limit copyright on the basis that copyright is a blockade to what they want to do with technology. There are newly anointed apostles of this movement each day who are young law students, taught by Agnostic/Atheist law school professors, who go on to clerk for federal judges. Professor Hansen argued that the decisions of some circuit courts in the copyright sphere are probably as a result of judges who do not know much about copyright being guided by clerks "imbued with the public domain". The goal of the Agnostics and Atheists is to limit copyright and maximize the PR value of the public domain, but Professor Hansen argued that their intellectual basis for doing so is either "intellectually dishonest or grossly negligent".
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| US Constitution |
He cited Larry Lessing as the originator of this doctrine who pointed to the purpose of copyright as incentivizing creation. The "incentivization" argument is allegedly derived from the US Constitution. Citing the Preamble of the
US Constitution and, more specifically, the Copyright Clause, Professor Hansen explained that the latter clause is preambulatory. It is there to explain what copyright and patents were to people who did not know. It was not a controversial clause for the Framers. Twelve of the thirteen colonies already had common law copyright protection. As such, the Copyright Clause does not say that these rights are being "created", merely that they are being secured - they are already in existence. Further, unlike the Statute of Anne, the Clause refers to the securing of the "exclusive Right". Drafters would not use the word "exclusive", Professor Hansen argued, if you meant that there needed to be a balancing act between the rights and the public domain. In addition, citing the
Copyright Act of 1790, Professor Hansen argued that because the Act protected, retroactively, subject matter that was already in existence there was no basis to argue that the copyright legislation was there to "incentivize". That is to say, you cannot incentive the creation of copyright works already in existence or works that are necessary (i.e. maps, which were the subject of the 1790 Act).
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Being openly anti-copyright is one thing,
but disguising that sentiment as
pro-public domain is another,
argued Professor Hansen |
Professor Hansen then turned to the concept of copyright as
a monopoly right arguing that copyright was no such thing. Copyright and patents are not true monopoly rights. They are just a property right as, unlike monopoly rights, they do not afford the owner any market power. So why is it called a monopoly? Professor Hansen's view was that it was probably because initially it was difficult for the public to grasp the concept of intangible property. Now, however, "monopoly" is likely adopted as a pejorative term. So by the alignment of "monopoly" with "copyright" the public starts to associate copyright as a negative concept which is a problem. This association is leveraged by the public domain believers and the public domain is advanced as a solution to the purported problem of the copyright monopoly. The antidote to this contagion is by framing copyright as a property right. Property rights restrict what we can do with other people's property. We cannot take other's property. As soon as the term "property" enters the frame then people are forced to think about "right" and "wrong".
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| The father of property - John Locke |
After a detour into the
Lockean concept of property rights - labour creating a natural right to property - which is the basis upon which American property rights are established, Professor Hansen turned to the question as to whether the public domain is a good thing. The argument is that without the public domain, fewer new works are created and the number of derivative works decreases. However, he argued that consumer cost is the same as the money that is generated goes to the producer who benefits from the public domain by circumventing the length of the creative process. To illustrate this point, Professor Hansen asked the audience to list what they considered to be the five most important works. After the audience mentally listed them, he asked them to consider whether those works were created because the public domain was allowed to happen. The answer, he said, to this question is "No.".
Bringing us up to where the AmeriKat started this post, Professor Hansen concluded that the problem of the culture of the public domain is that it adversely affects moral value "by encouraging lack of sensitivity in harm being done others in the taking of their property". The Agnostics and Atheists never say that downloading is "wrong". With the culture of the public domain, the morality of copyright protection no longer enters into the debate (a point that IPKat Jeremy also made a
t his recent Fordham presentation). In this environment it becomes okay to take one's property. Doing so is justified because copyright is not considered a property right, its considered a monopoly. Monopolies are bad and should be destroyed, especially if the destruction is justified on the grounds of the creation of new works. The creation of new works, after all, is the goal of the copyright system because the system is meant to incentivize. However, over the last forty minutes as summarized in this post, Professor Hansen sequentially broke apart this justification for the culture of the public domain with characteristic fury and fervor that makes the
Fordham IP Conference such a joy to attend.
The AmeriKat was intrigued by Professor Hansen's provoking "five most important works" question, but she disagreed that there was no creative value in the culture of the public domain. Frantically scribbling away in a note to IPKat Jeremy, she argued that the public domain actually did create new IP. For example, the creation of the culture of the public domain and the behaviors in the public domain pool (e.g. illegal downloading) demonstrated that there was a demand for certain copyright works which were arguably not otherwise available in a manner which the public wanted to consume them. This demand created a technological response to provide licensed copyright works to the public by easier means across multiple jurisdictions, e.g., Spotify, Netflix, etc. This technological response created IP in its own right and provided legal access to property rights of others. However, after a lively discussion at dinner, she countered-argued her own point. Perhaps its not the public domain itself that created these works, but the
fear of the public domain and its growing culture that generates works and innovations (lest you lose all your property in the public domain reservoir with no source of income from any new property developments).
The AmeriKat and the IPKat team would like to commend Professor Hansen on an excellent and entertaining lecture. The AmeriKat would especially like to personally thank her alma mater, UCL and
IBIL for continuing to organize such intriguing debates on contested IP issues in the memory of the wonderful, and much missed, Sir Hugh Laddie.
