The Report of the Copyright Principles Project, a working group convened by Pam Samuelson, is now available.
On a quick read, the Report appears to be thorough, and reasonable, and balanced. It is also an entirely copyright-centric document. What I mean is that it takes the continuation and refinement of an autonomous system of copyright law as a premise, just as recent discussions of patent reform take the continuation and refinement of an autonomous system of patent law as a premise.
There was a moment, centuries ago (let’s say the late 17th and early 18th centuries), when the stuff that became the subject matter of copyright wasn’t so clearly distinguishable from the stuff that became the subject matter of patent. There was (and is) no natural or obvious division between the two; the line was drawn based on technological, social, and political considerations that were in flux then and stabilized over the course of the 19th and early 20th centuries. If they are in flux again — and I think that they are — then it strikes me that IP reform should be talking about copyright and patent (and trademark) law simultaneously.
Practically speaking, that’s a non-starter. But conceptually speaking, I suspect that some value would emerge from an “IP Principles Project.”
Mike —
I’m so much in favor of collective academic and non-academic rethinking of copyright law that I really am disinclined to say anything critical about the project.
But if I were to say something, I think what I would I say is pretty much what you said. The starting point for me would be, for society, “why copyright?” If we could identify the pressing social problem that copyright law is designed to fix, we could work towards a solution to the problem, and that solution might not look anything like what we call copyright today.
Of course, as you yourself point out, the virtue of theoretical clarity and imaginative breadth in that approach is offset by the failure to confront the political reality of how copyright law has been created and sustained (esp. in this country) — and how unrealistic it is, politically, to propose undoing or merging our existing IP regimes.
Yet ideally, that is exactly what we should be doing at this moment, imho.
Why not copyright? It was working just fine until about 30 years ago.
🙂
(maybe if we wait another 30, maybe it will start making sense again!)
From an email I got earlier today; looks like there is a broader interest in a rethink:
The Department of Commerce, USPTO, and NTIA are undertaking a review of copyright and innovation online. They’re requesting public comments.
http://www.federalregister.gov/articles/2010/10/05/2010-24863/inquiry-on-copyright-policy-creativity-and-innovation-in-the-internet-economy#p-3
“Recognizing the vital importance of the Internet to U.S. prosperity, education, and political and cultural life, the Department has made it a top priority to ensure that the Internet remains open for innovation.”
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