“In international law we like metaphors,” said William Patry, senior copyright counsel at Google and author of the recent book Moral Panics and the Copyright Wars. One of the most pervasive of these is “a rising tide lifts all boats,” a metaphor whose danger lies in appearing logical. But making theory into copyright policy will benefit neither content creators nor those interested in preserving access to knowledge, he said.

Not all boats are in the same shape, so when the tide goes up they may not be affected in the same way, Patry said, speaking strictly on his own behalf. Plus, there are economies based on low tide situations, so if it becomes irreversibly high, you may permanently cripple those economies. Patry spoke at a 1 December event hosted by think tank IQsensato, alongside the World Trade Organization ministerial.

These metaphors are stand-ins for passionately held beliefs, he said, such as the idea that copyright is inherently good, and that as a result more is always better. But “if life conflicts with theory, then the theory has to be changed or abandoned … we can’t follow ideology at the expense of reality.”

There are “ample grounds for believing that appropriate levels of copyright can be a force for good,” he said. But then, “there’s a lot of medicines that save people’s lives if given in the right dose,” but have negative effects if the dose is too high.

And more copyright may be the wrong medicine altogether to cure what ails the content industry.

The real problems of the content-producing industry today are business problems, said Patry, and copyright law “has become a crutch,” used by incumbents in the industry to preserve their incumbency against innovative newcomers.

“Regulation,” Patry said, quoting former Federal Communications Commission Chairman William Kennard, “is too often used as a shield to protect the status quo from competition, often in the form of smaller, hungrier competitors.”

Moral Panics, and Saving the Content Industry

Copyright-owners often argue that piracy of their content has a crippling effect on their industry, quoting losses in the millions or even billions of dollars due to the theft of their intellectual property.

“A moral panic is an existential threat (allegedly) to society, usually from a minority group, a group that’s seen as being deviant,” said Patry. “In the United States, we had witch trials, and then comic book scares. There was once a comic book code (they were believed to be corrupting youth).”

These panics are formed around a real problem that is then exaggerated. “There’s no doubt that there’s a crisis,” in copyright, he said. “But you have a choice of letting [a crisis] clarify your mind and … carry you forward.” Or, he added, “you can demonise it,” and say “the people who are doing it are awful terrible people” and you have to regulate them.

More often than not in copyright, moral panics are caused by innovation that threatens existing business models, he added, “and businesses think it’s easier to get laws and regulations changed than change business models.”

But, said Patry, the myth that stronger copyright and an end to infringement will save the industry is false, he said, and a diversion for the more serious issues of how to finance culture, foster innovation, and encourage dissemination of knowledge.

“Regulatory capitalism,” is not going to solve the business problems of the content industry, he said. Lawmakers may be able to stop people from doing something, but they cannot make people purchase things, said Patry, who by his own admission is happily a voracious consumer of copyrighted goods, buying, for instance, some 300 books a year.

However, “I’ve never bought a book based on its copyright status,” whether still under copyright or in the public domain, said Patry. Copyright “isn’t fairy dust” and does not confer value, he said. “No law can turn an unprofitable business into a profitable business.”

Making Copyright Law Effective

Copyright law is not effective, and efforts to make it stronger or weaker are not going to make it so, Patry argued. “At minimum our laws should be effective.”

What that means is they must be evidence-based, working off empirical evidence to increase the public good, where the public is not only authors of copyright works, but also those interested in access to those works, he said.

“This,” an official from a Geneva multilateral organisation told Intellectual Property Watch afterward, “is a message that we need to hear.”

But, Patry said, while everyone acknowledges that evidence-based policymaking is a good idea, there is a problematic tendency to ignore an evidence-based approach when actual law-making is done. Unless exceptions and limitations to copyright are discussed, and then evidence is called for, and coupled with the conclusion that evidence is lacking for whatever exception is desired, Patry said.

“There’s not an author on the face of the earth that would say, ‘I’m not going to create a work under life plus 50 [years], it’s not enough, it’s got to be life plus 70.’” – William Patry

For example, “any reasonable person would say that the evidence is … there is a need to do something major” to make more reading material available for the visually impaired, yet a proposed treaty at the World Intellectual Property Organization to allow exceptions to copyright law to ease access to such reading materials is resisted on the contention, notably from the US, that evidence is lacking that a treaty is needed.

Authors themselves have often failed to see the value in copyright, Patry indicated, citing in his book statistics such as that of 21,000 works published in the United States between 1790 and 1800 (when registration was required to have copyright protection), only 648 registrations were made. He further cites a study that found only 1.7 percent of 10,027 books published in the US in 1930 are still in print. Yet, these works are protected until 2025 and those who use them could risk legal action.

Patry suggested a mistake was made in increasing the term of copyright protection from life plus 50 years to life plus 70 years in the United States. “Why would you increase the term of protection? You would increase it, I think, because it would lead to more of what you want to have happen,” he said. “I think that we can all agree that it in fact hasn’t. And indeed that it could never do that.”

Patry added, “There’s not an author on the face of the earth that would say, ‘I’m not going to create a work under life plus 50 [years], it’s not enough, it’s got to be life plus 70.’”

He also noted that Google search results derive from copies of the original content stored on Google servers, and that the smoothness of video streaming relies on the reproduction right inherent in copyright make a cache the media.

The way out is innovation, said Patry. “If something has changed the world as it is, you can’t go back. You have to go to the problem as presented and find a way to do that.”

The Original Copyright Wars

World Intellectual Property Organization Director General Francis Gurry, in a speech to the Australian National Press Club in August, said “we shouldn’t, in the copyright world, be making policies that support either the business models of the 20th century or the models of the 21st century. We should be trying to find legal mechanisms that are neutral to the business models,” Patry said, adding that the “ideology of copyright has protected business models little advanced” from an Irish dispute from the 560s that Gurry also referenced in the speech.

The Cathach of St Columba,
possibly the first infringed copyright

This tale concerns one early Catholic monk, Columba, who legendarily became involved in a copyright dispute with his mentor Finnian of Moville. Columba hand-copied a psalter, or book of sacred songs, owned by Finnian, but the teacher protested the right of his student to keep this copy. He protested so much that the two eventually took their case to the King of Ireland, Diarmait. The King sided with Finnian, declaring “to every cow her calf; to every book its copy.”

Columba was not pleased with the verdict, and decided not to give back the book. This eventually let to the Battle of Cúl Dreimhne in 561 AD, during which thousands of people are said to have perished, and then to the exile of the copyright infringer to Scotland. The church later sainted both men, though, it should be added, not for intellectual property related reasons.