How to Fix Copyright
California Lawyer

How to Fix Copyright

December 2012

How to Fix Copyright
by William Patry
Oxford University Press, $21.95, hardcover

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William Patry is a copyright law scholar, perhaps best known for his eight-volume treatise Patry on Copyright. Currently senior copyright counsel at Google, he has also served as a law professor, counsel to the U.S. House of Representatives' Committee on the Judiciary, and policy planning advisor to the Register of Copyrights. In his latest work, How to Fix Copyright, Patry draws on his substantial experience as a copyright lawyer, author, and musician (he's an avid clarinetist) to craft a detailed examination of the evidence and to propose solutions to a number of important copyright problems.

Though few of his ideas about what is wrong with our current copyright system, or how to fix it, will be new to copyright practitioners, Patry deftly situates a broad range of problems and solutions within a narrative that will be accessible even to nonlawyers. He argues passionately for a comprehensive and internally consistent bundle of reforms. The heart of Patry's approach is a plea for Congress and policymakers around the world to engage in a rigorous, evidence-based approach to copyright policy, as opposed to the current process wherein legislators uncritically accept claims made by large copyright owners that ever-increasing copyright regulation is needed.

Based on his review of the evidence, Patry asserts that our copyright system is not accomplishing its stated goals. But he's far from a copyright abolitionist: He believes that we need effective copyright regulation to ensure that authors and artists get paid for their work, that there is appropriate incentive and ability for authors to create, and that copyright law supports the public's access to cultural works.

Patry argues persuasively that all copyrighted works are not alike and should not necessarily enjoy the same type of protection. In the early days of copyright, a narrow range of works was protected for a relatively short time. Today, copyright automatically protects a staggering array of works from the moment they're created. And in the case of individuals, a copyright lasts 70 years beyond their death.

The incentives, and need for protection, among these classes of works can vary dramatically: Ordinary business documents and emails may need no protection at all; and books may need a relatively shorter term of protection than movies. Compelling evidence supports the latter point. Studies of books reveal that very few remain in print for a long time, which suggests that copyright protection is not promoting access to those works and that they have little enduring economic value. Further, an examination of past copyright renewal records indicates consistently low renewal rates for books. (Under earlier versions of the Copyright Act, renewal was a prerequisite to extending one's copyright term.)

Patry also takes a close look at the past, present, and future of newspapers, and argues that across all industries copyright should not be used to prop up failed and failing business models. He examines why so little money flows to creators under our copyright system, and explores evidence-based strategies for combating piracy, such as making legitimate works available at affordable prices.

Some of Patry's proposed reforms are a bit technical, like increasing efficiencies in rights holding organizations to streamline global licensing, and expanding compulsory licensing regimes. Others (including reimposition of formalities like a renewal requirement) might require changes to international treaties such as the Berne Convention. Although it's not clear that all of his proposals are politically feasible at this time, How to Fix Copyright provides a thoughtful and accessible look at many hot-button issues in copyright law today.

Chris K. Ridder, a partner at Ridder, Costa & Johnstone in San Francisco, represents clients on transactional and litigation matters related to intellectual property and cyberlaw.

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