The End Of Maximalist Copyright?

[Mike]

As I noted in my first post, copyright policymaking is driven mainly by politics, self-interest and deep-seated notions of morality at the expense of actual empirical evidence. Overall, this has led to some pretty indefensible policy outcomes, such as the continued extension of copyright terms. And when one considers the Obama administration's continued pursuit of ever-stronger copyright laws, in the United States and around the world, backed by some pretty powerful industries, it's easy to conclude that the centuries-long trend of copyright's expansion is likely to continue indefinitely.

I disagree. Ironically, the purely political nature of so much of copyright policymaking makes it vulnerable to potentially dramatic change. What has been politically made can be politically unmade. And perhaps sooner than we think.

The current US maximalist position on copyright and intellectual property was politically constructed through some savvy lobbying in the 1970s and 1980s by the copyright and IP industries, as documented by scholars such as Susan Sell, and Peter Drahos and John Braithwaite. Since then, US copyright policymaking has been subject to a classic case of regulatory capture, with tight linkages, for example, between the Office of the United States Trade Representative and the content industries.

That said, it's worth remembering that the explosion of (politically relevant) public and corporate interest in user rights and the like is a very recent phenomenon. There have always been groups interested in pursuing copyright balance, but it's only recently that the heavy hitters – Internet companies like Google, and the public at large – have begun to make themselves heard.

Remember the 1990s, when Silicon Valley made a virtue of not being interested in Washington's political games? As recently as 2008, when I was in DC to interview people for this book, I couldn't even find Google's Washington lobbyist. In 2003, Google ranked 213th in terms of spending on lobbying, according to the Washington Post. In 2012, it was in second place.

You can't win if you don't play. Public Knowledge has become one of the most prominent voices in favor of user rights in Washington; their first submission to the Special 301 process was only in 2010, as far as I can tell. And, of course, the 2012 SOPA protests proved that millions of Americans can be mobilized on digital-copyright issues.

This is just a thumbnail sketch, but what it suggests is that it's been less than a decade since the copyright debate got real. And while regulatory capture is a real thing, it will be difficult for any US governmental agency to ignore the potent combination of new players with cash and votes. Anyone with money and influence can play the regulatory-capture game.

I'm not arguing that a user-rights, content-is-free utopia is right around the corner. For one thing, the interests of a for-profit business like Google are very different from those of the average citizen. As a business, Google has proven to be more than willing to make private deals with copyright owners to limit user rights. Businesses, after all, crave stability over everything.

However, the interests of Google (to take only the most prominent of the digital-economy companies) on copyright are sufficiently different from those of the copyright industries currently driving Washington policy that it's reasonable to expect that the current US copyright position is not politically sustainable in the long run. And if digital copyright remains a mainstream political issue, then the prospects of significant long-term reform – in the United States and abroad – are even greater.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

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Originally Published: Wed, 21 May 2014 16:04:00 GMT
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