What price must an author of a copyright work pay for it to be enjoyed? Are these authors exploited by the very intellectual property right intended to protect them? Professor Jessica Litman provoked debate at the 13th Annual International Intellectual Property Lecture, Emmanuel College, Cambridge, on Tuesday 13 March 2018.
Hosted by Dame Fiona Reynolds, Master of Emmanuel College, this annual lecture seeks to challenge the boundaries of intellectual property law, inviting discussion from eminent academics and practitioners alike. Invited by Lionel Bently, Herchel Smith Professor of Intellectual Property Law at the University of Cambridge, Jessica is the John F. Nickoll Professor of Law at the University of Michigan. Jessica is a renowned expert on copyright law and the author of Digital Copyright (2001), which traces the history of lobbying that led to the passage of the Digital Millennium Copyright Act.
For the past twenty years or more, scholars of copyright law have been deeply polarised: strengthening protection for authors or freeing availability for their audiences. This divide has been overshadowed by the conflict of the digital millennium, between the intermediaries of the old, such as publishers, record labels and film studios, and those of the new: Amazon, Google, Apple and others. In this conflict, neither the authors nor the audiences take centre stage. Rather, both lose.
Copyright was supposed to encourage creation and dissemination of works, provide meaningful opportunities for the authors to earn and to allow the audiences to enjoy the works. Intermediaries were supposed to connect the authors to the audiences, distributing the works and returning equitable payment. What of this has succeeded? For the audiences, they must pay now also with their own personal data. For the authors, Jessica expressed the new price as depressing: authors must accept increasingly limited choices, handing over control while at the same time giving up most of their money. And in an era of digital distribution, when the new intermediaries no longer bear the costs of binding of books, pressing of records or reels of film, royalties to authors have been ratcheted still further lower.
How has this happened? By defining copyright as a property right, Jessica argued, the transfer of copyright is actively encouraged. In the eyes of the law, the author as first owner is still thought to be in control of their work. But the contractual obligation to transfer the copyright to the intermediaries in return for dissemination necessarily hands over all that control. Indeed, courts are eager to agree that the authors have conveyed their rights to the intermediaries. Illustrated by colourful historical examples spanning four centuries, Jessica concluded that deeming a resource to be a property right is an effective way of taking control of it.
What is the solution? Herein lies the problem. Restoring rights for authors is likely to fail, considers Jessica, while rebalancing between the intermediaries of old and the new gives the authors no advantages. Even statutes currently on the table offer no promise. Wholesale exploitation of authors, it seems, has no fairy tale ending. Others though, disagreed…
Jessica’s lecture provoked reaction and divided opinion, as evidently apparent from the debate that long raged after the lecture. Has the German ‘principle of non-transferability’ of full or divided authorship, by which the creator of an original work can neither transfer their personal right as a creator nor the complete rights for the exploitation of their work to others, better favoured authors in Germany compared with elsewhere in Europe? It appears not. Is regulation the remedy or should we let the free market decide? Jessica’s lecture was once again a valued opportunity to question the fundamentals of intellectual property law – and perhaps even catalysing a more equitable future for the authors of copyright works.
