September has rushed past in a blur but in spare moments I’ve been gripped by The Public Domain by James Boyle – praise indeed about a book on intellectual property by a legal scholar.  He makes a series of powerful arguments for the reform of copyright and patent systems in ways which will achieve their fundamental aim – incentivizing innovation by providing appropriate rewards – while reversing some of the legislation and court decisions which have turned copyright and patents into serious restrictions on creativity and future innovation (and also monopolies giving the people who control them excess profits). What’s more, they are measured arguments, clearly written. This is no cyber-libertarian rant.

Boyle starts us off with the original motivation for copyright, citing in particular the incomparable Thomas Jefferson and Thomas Babington Macaulay. Both of these titans were clear about the need for copyright, the alternative being the unpalatable one of patronage by the wealthy, but also about the need for limits. Both recognized that copyright and patents which were unduly restrictive simply granted monopoly power, while doing nothing to improve the ex ante incentive to innovate or create. Jefferson in particular was at pains to warn against leaning too heavily on the metaphor of property: intellectual property is not at all like physical property, he insisted. It could not be used up in the same way. An idea is not diminished by being shared. Boyle calls this the Jefferson Warning. Intellectual property isn’t property, nor is it a human or moral right.  It is a state-created monopoly with a specific purpose.

Intellectual property law evolved in this measured framework over the years, mainly as a series of deals between law makers, the courts and the industries concerned to regulate competition. Individual consumers were not much affected. However, technologies which make copying easier always alarm industry, which sees only the loss of existing sources of revenue and never the potential new sources of revenue. A case in point is the VCR. Movie studios were horrified as their revenues came from screenings in movie theatres and licensing films afterwards to TV stations. Having failed to persuade legislators to tax VCRs, Sony took the manufacturers to court alleging copyright violation. The court rejected this claim, saying consumers taping movies to view them later was ‘fair use’. And of course as the price of VCRs fell, the studios found a large new source of revenues in the home video rental market. However, the example shows that the instinct of industries which deal in intellectual property is always to ask for controls of the technology which has made copying and distribution easier. So it is now with the constant chorus about the Internet Threat.

The courts and many legislators have bought the presumption behind the Internet Threat. In doing so they have shifted from asking whether the motive for copying is commercial, the traditional test of whether or not making a copy was fair use, to asking whether the person consuming the copy is getting it for free. But, as Boyle points out (p76): “One central goal of copyright is to limit the monopoly given to the copyright owner, so that he or she cannot force citizens to pay for every single type of use….. When ‘getting something for free’ comes to equal ‘commercial’ in the analysis of fair use, things are getting dangerously out of balance.” And of course we see copyright owners rushing to criminalize their customers, which has never struck me as the brightest of strategies.
Boyle goes on to argue that peer-to-peer technology means there will be lots of copying which both does and does not infringe copyright, and much of the copying which does not infringe copyright we would hold as being at the heart of free speech and creativity.

To take just one example, music grows and evolves as musicians borrow from their predecessors. The book quotes Ray Charles, speaking about the way he modelled himself on Nat King Cole – and the way Joe Cocker in turn was modelling himself on Ray Charles. As Charles put it: “Today I hear some singers I think sound like me. Joe Cocker for instance. Man, I know that cat must sleep with my records.” (p127) But the logic of the Internet Threat line of thought is that reduced copying costs imply the need for greater control of the technology, and all copying is therefore illicit. But who could disagree with Boyle when he writes: “A system that can only function well through repeated lawbreaking is an unstable and dangerous one.” (p157)

If anything, we are in a worse situation with regard to patents, given that patents are increasingly being awarded for business methods simply because they involve the use of a computer. Patents of this type are madness. As Boyle puts it: “The process of copying business methods is called ‘competition’ and it is the basis of the free market economy.” (p169)

Having to my mind comprehensively demolished the arguments made by industry lobbies and big corporations (not to mention the many individual content creators who are signed up to them), Boyle turns to alternative approaches which might get us away from the insane restrictiveness of current copyright and patent practice while safeguarding appropriate rewards for innovation and creativity.
One approach is open source. Often the alternative to no copyright protection is seen as 100% protection. Open source licences set the dial somewhere in between – a General Public License attaches some conditions to copying. Open source is viable in a world of network effects where the choices of strangers can affect the value of your choices, so that copying creates benefits for existing consumers of the product. Or in other words in some areas of activity there is no ‘Internet Threat’ – on the contrary. (Boyle makes this book available for free download on the Public Domain website. I, like many others, started reading the electronic version then bought a physical copy.)

Boyle’s other main and heartfelt plea is for the courts and politicians to be guided by empirical evidence. Remember that intellectual property is not the same as physical property and we do not have a moral right to it. Assess the evidence on whether additional restrictions on access will help or harm innovation and the creative process – will the benefits outweigh the costs? Weigh up both incentives to create and the importance of what is in the public domain. “More rights will not automatically produce more innovation.” (p200) There is no alternative to an empirical approach: “One cannot credibly say that natural rights  …. give me a right to 28 or 56 or 70 years of exclusivity.” (p229) Better that the empirical assessment is explicit than accidental.

He cites a glorious example of legislators’ failure to understand this really simple point, a report by the House of Commons Select Committee on Culture, Media and Sport. The committee was responding to the Gowers Review which advocated precisely this evidence-based approach, and said: “Given the strength and importance of the creative industries in the UK, it seems extraordinary that the promotion of intellectual property rights should be weaker here than in many other countries whose creative industries are less successful.” If this statement appears to make complete sense to you, go and sign up immediately for an introductory course in logic.

For that matter take a look at the Gowers Review, or the Adelphi Charter of the Royal Society of Arts. It is not just raging radicals and pirates who recognize that copyright and patent law have become unbalanced – deranged even – when the authorities seem to take seriously self-interested industry arguments that millions of consumers should be criminalized and that one of the main engines of personal and business communication should be technologically restricted and policed by the authorities. James Boyle’s highly readable, forceful and moderate book is a voice of sanity.