US / COPYRIGHT / LAW REFORM

Columbia Journal of Law and the Arts, Vol 25 No 1, Fall 2001

Can Copyright become User-Friendly?

Jane C Ginsberg

This discussion of copyright law reform, though taking the form of an original article, is in fact a review of Jessica's Litman's book on Digital Copyright. This book, as Professor Ginsberg says, was intended for the general public, "though lawyers, and especially copyright lawyers, would do well to read it". The book's message is straightforward. "Copyright law is too complicated and counterintuitive. It has been written by and for copyright lawyers who represent many, but not all, of the players. Many are left out, including developers of new ways of communicating copyright works and, most importantly, end-users." The article deals briefly with the problem of the way our copyright laws are made and, more substantially, with the theoretical basis of copyright law, which Jessica Litman describes as the "metaphors": specifically, with the "public bargain paradigm", in which the public give up some rights to compensate authors for their creative work, and the "property" concept, closely related in real property law, as in other fields of property law, to the existence of "exclusive rights". Cutting across these concepts is the incentive theory, which must ultimately be based on economic considerations, without any more regard for the public interest than the relevant provisions of the Berne Convention. The article goes on to consider the "copyright wars": that is, the contest between copyright owners and the new technology. As Professor Ginsberg points out, this is a sorry tale "of misplaced fears and missed opportunities, one the cause, the other the result, of copyright overreaching: but she criticizes the book under review for decrying the endeavours of copyright owners to reduce or eliminate free use zones. Finally, the article considers Professor Litman's proposals for reforming copyright law. One proposal is that there should be a "temporary period during which the Internet could be a copyright-free zone"; and, while Professor Ginsberg considers this "utopian", she acknowledges that some spectacular infringements may initiate new markets more rapidly and more broadly than they would be if they were left solely to copyright owner development. The second main proposal for reform is that copyright law should be recast as an exclusive right of commercial exploitation. Despite some criticism of this proposal, Professor Ginsberg concedes that it has considerable appeal. Another proposal for reform concerns alterations to works where those alterations violate the works' integrity, provided that this does not become the means to enhance control over digital documents. Professor Ginsberg is less enthusiastic about a proposal for creating by legislation "affirmative user rights" and concludes with a reminder of public reaction to the principle - in her view, just as readily applicable to copyright works as to the more conventional type of property the principle envisioned, - that "thou shalt not steal". [20074]