In the SCL Annual Lecture for 2009, leading copyright expert William Patry made a stunning intellectual case for a new approach to copyright law – crafting effective law, not aiming for the ‘strong copyright law’ which had become a ritual aim for many. He emphasised the dangers of allowing ideology to rule over empiricism when determining copyright law – citing our recent love affair with economic freedom by way of warning. William Patry went on to surprise many by his emphatic rejection of an approach to copyright which classified it as property. He sees it as a creature of a government programme, and believes that that should bring with it an approach akin to that applied to government housing or educational initiatives. In fact, the copyright debate is dominated by references to moral cases and what is right and just, with scant account taken of the public interest or economic realities.

The evening began with a tribute to Professor Sir Hugh Laddie by the Rt Hon the Lord Hoffmann. He spoke with real fondness of his relationship with Sir Hugh and the effect he had on all he met: ‘meeting him added sparkle to one’s life’. He referred to Sir Hugh’s ‘zestful brilliance’ and the pleasure that he had gained from working with him. As a judge, Lord Hoffmann felt that Sir Hugh’s quickness of mind had sometimes left counsel trailing in his wake and the acres of common sense that were displayed in his judgments sometimes put him at odds with the European Court. Lord Hoffmann said that there was true scholarship present in all he wrote, even his last piece – a 36-page demolition of one of Lord Hoffmann’s own recent judgments. But, recounting tales of successful fights together in copyright cases, what would stay with Lord Hoffmann was his recollection of Sir Hugh’s wit, sparkle and fun.

In the lecture itself, William Patry began with scarcely a reference to copyright – but foxes and hedgehogs, Theodore Rothke, Greenspan at the Federal Reserve and trickle-down economic theory were all mentioned. The references to the roots of the current financial crisis were relevant to show that public and private interests were not co-terminus and that a ‘hands-off’ approach to copyright was doomed. The absence of empirical analysis of copyright incentives clearly astonished William Patry. Increases in copyright term in the USA were granted without any attempt to study the effects of earlier increases. But William Patry gave credit to the UK for its detailed analysis – the Gowers Review – which had involved a proper analysis of the effects of a further extension and had then recommended against extending it. The credit to the UK was short-lived as ministers had since cited the ‘moral case’ for extension and embraced extension on non-economic grounds. William Patry’s view of that change in position appeared to be one of polite contempt.

The audience was then taken on a tour of copyright history with special emphasis on its origins in the UK. Lord Macauley’s speech to Parliament in 1841 was cited as the source of much of William Patry’s own views on copyright. In a digital age, those who practised in the field of copyright had to remind themselves of its roots. If expediency was at its heart, it was clear that the term was already too long and that a system which even allowed copyright owners to dictate the design of consumer electronics had lost sight of what copyright should be for.

William Patry felt that copyright law was currently ineffectual. He quoted Sir Hugh Laddie: ‘Where IP rights perform their function of advancing the science or arts, they should be encouraged to do so. Where or to the extent that they do not, they have no justification and the normal discipline of competition should apply. The gluttony which has resulted in the growth of completely unnecessary or excessively long IP rights undermines the system itself. As Shakespeare wrote in Richard II, “With eager feeding food doth choke the feeder.”’

William Patry concluded by saying that those who cared about copyright law needed to see that it had to be put on a diet.

In response to questions, William Patry depressed the audience with his frank but despairing view on the likelihood of persuading politicians of the need for an empirical approach – he had no hope of that. He responded to a question about illegal downloads with a condemnation of such behaviour but a call for the music industry to recognise that the current system was failing and for them to show greater alacrity than they had hitherto in adapting to the technology and new consumer demands. William Patry responded to a question about the alternative analysis to copyright as property with an interesting reference to tort, suggesting that as the historical base for the origin of the right.

In giving his vote of thanks, SCL Trustee Roger Bickerstaff reminded the audience of the close relationship between IT law and copyright – that copyright was at the root of so much of what an IT lawyer did. He referred to a practical instance of the dangers of ideology in the context of open source and cited that as an instance of how more open-minded approaches to copyright might lead to a prosperous outcome.

Following the lecture, the debate continued long into the night at an excellent reception in the stunning Riverside Room of the IET.

A recording of the Lecture is now available online.

7 comments

• I've happened on this post again after many months and, Douglas, I'm struggling to work out what point you are making with (c). Are you for or against or agnostic on the status quo or on an increase or reduction in the copyright term? I agree that the length of copyright term would probably make little difference to the incentive for the majority to create wholly new works. Most young "artists" just want to create and/or to make a name for themselves / make money pdq and are not at that point thinking of their pensions and if they're relatively unsuccessful they won't have the resources to litigate. If they're successful, then making even more becomes important to them and ever-longer copyright terms work for them, not the majority. And, as Patry has responded, their rights orphan many older works and inhibit the creation of derivative works by the majority.
  Nick Holmes, 17:42:26 03/12/2009
• I am extremely impressed that Mr Patry has come back online to give us a response, and also very interested in his seven suggestions! Re whether we would notice if the term was cut to 10 years: my point was that the vast majority of works retain little appeal after 10 years. Obviously if you are focussing on the minority of works which DO retain their appeal after 10 years, then both the copyright owners and the would-be copyists are very interested in them. But I doubt that a shorter term would have any effect on the creation of new works, or on those who litigate in this field.
  Douglas Campbell, 20:22:40 27/03/2009
• Thanks for the write-up Laurence and to others for their comments. I wish to add some clarification to some of the remarks made in the comments. Euan, I think it not hard to figure out practical or realistic ways to implement my suggestions, although not was not the purpose of the talk. One should begin with whether incentives are necessary at all. For some works, such as private letters and works of architecture, I think the answer is no. So the first concrete suggestion is to limit copyright only to those types of works that would not be created but for copyright. If a work would have been created without copyright protection, we shouldn't give it protection. The second practical suggestion is that the term of protection should be far shorter: I believe the 28 year original term plus a 28 year renewal term conditioned on complying with formalities, found in the 1909 U.S. Act was a sound approach. The vast majority of works do not need even 28 years. Studies have been done about this, which I can refer you to. In short, we should provide a long enough term to recoup investment and make a profit but no more. Because this will vary among works, we should abandon the current one size fits all. There are studies on this as well. A third concrete suggestion is to abolish the digital rights management and anti-circumvention laws in the WIPO treaties, as they are inhibiting innovation and giving copyright owners over the control of consumer products and services. A fourth concrete suggestion is to conform the copyright laws to the realities of the Internet, that is, those processes that must occur for the Internet to function, such as transitory and cached copies should not be infringing. A fifth concrete suggestion is to reduce, in the United States the amount of statutory damages that may be awarded and in all countries ensure that damages are tied to actual losses. A sixth solution is to ensure that consumers who purchase lawful copies may port them to other devices at will. A seventh solution is to adopt a flexible fair use like provision. Nick, I was not being coy, and no I was not hiding anything for the book. You mistook the purpose of the lecture, which was not to hawk my forthcoming book, but rather to honor Sir Hugh Laddie by expanding on themes he utilized, and in this regard, I note that Sir Hugh's lecture was no more detailed than mine was. Andrew, I appreciate the interest in Google's role, but I was speaking as an individual, and not on Google's behalf. I would not have been able to give the talk if I had been required to be a Google spokesperson simply because that is not my job. It is others' job, and there is no lack of information on Google's views from those whose job it is to explain Google's views. Douglas, on your point (a), I was responding to an audience question about an alternative way to look at copyright rather than as a property right: the tort issue was not in the speech itself. The speech itself is in line with your remarks; namely that we should focus on the reality of the law and not on labels; (b) is what I said; (c) I strongly disagree with your observations on this, as the whole orphan works dispute shows. It is a huge issue that people cannot use older works, either to create new works, or to put older works on line for free.
  William Patry, 21:33:16 26/03/2009
• There is no doubt that Mr Patry has a vast knowledge of the subject, but we didn't hear very much about what a more effective law would look like. It seemed to boil down to: (a) Call copyright infringement a tort, not a property right. (b) Base the law on economic justification, not sloganeering. (c) Cut down copyright term to whatever can be economically justified, eg 10 years. (d) People will still buy CDs, DVDs, etc whatever the law is. I doubt that (a) makes much difference, which was his view too. We can all agree on (b) since none of us is standing for election. I suspect that most of us would notice little change if (c) was enacted, since very few works retain much appeal after 10 years. And I would agree with (d). Perhaps I'm oversimplifying but that seemed to be the gist.
  Douglas Campbell, 16:52:38 26/03/2009
• Really enjoyed the lecture, but I would have liked to have heard more of Mr Patry's views on Google's role in crafting an effective copyright law. Is it a force for good or bad? And does Google also need a "hands on" approach from government to protect the public interest?
  Andrew Tibber, 14:06:35 26/03/2009
• Yes, he was coy on putting forward possible solutions. I'm guessing he will have more to say in his new book.
  Nick Holmes, 17:25:16 25/03/2009
• I agree entirely that it was a "stunning" intellectual case that a new approach be taken to copyright - being both reflective and stimulating. Such an approach would provide a strong riposte to all those naysayers proclaiming the death of copyright. The question, however, remains as to how to re-balance the the power between the rights holders and the public. As Laurence says "depressingly" Mr Patry despite his depth of knowledge of copyright law could give us no practical or realistic way to do so.
  Euan Duncan, 16:32:08 25/03/2009