Last week, I attended the Second Annual Peter Jaszi Intellectual Property Lecture at the Washington College of Law at American University where Professor Bernt Hugenholtz delivered the distinguished lecture. Prof. Hugenholtz talked about copyright law in “author rights systems” in Europe and how these laws seemed to be evolving towards more flexible copyright exceptions — not full blown fair use — but flexibilities necessary for copyright law to work in the an age of rapid technological change, user-generated content, and an abundance of information.
Hugenholtz gave a number of examples of what you cannot do in some countries with authors’ rights systems. One can’t use digital teaching tools like digital projectors without permission. A TV reporter covering an art show opening cannot film any of the art at the show, even if it only appears in the background. Creating a search engine would be an infringement. This seems insane to us. One might think these people live in authoritarian regimes. But no, we are talking about places like France, which apparently is quite strict in its understanding and enforcement of closed exceptions. But Hugenholtz also noted that recently, in those countries that have updated their copyright laws, legislatures are choosing to insert flexible language like “reasonable” and “fair” to loosen up the tight exceptions making them more understandable and rational.
Listening to Hugenholtz reminded me again that the United States has the best copyright law in the world, not only because we have fair use but also because the very nature of our law is utilitarian which I think is a far superior system than an author rights system. In the U.S., copyright is supposed to “do” something and does not merely exist to provide authors or other creators what is owed to them. Instead we reward authors with an economic incentive to create and share creative works to benefit the public. In an author rights type copyright system, a philosophy of “creation for creation’s sake” is more dominant, and this can lead to policy that gives rights holders more control over their creative works and how they can be used. A system of permissions and pre-authorizations is due to authors, and “loosey goosey” dissemination and use of information invites mayhem.
Hugenholtz closed with his concern regarding the increasing “gap” between the copyright law and social norms. This gap has widened to the point that a generation of people think that copyright law is pretty stupid. Libraries fare relatively well in our copyright system with both closed exceptions and fair use. For the most part, rights holders are compensated and the content communities continue to make record profits year after year. Copyright is working relatively well, but it should also make sense to people because we are the true beneficiaries of the copyright law.