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Friday, 10 January 2014

Does copyright have a notion of "progress"?

Is there a notion of “progress” with respect to IP, and especially copyright? Let’s start from the beginning (1787)-- Article 1, Section 8, Clause 8 of the U.S. Constitution empowers the United States Congress

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 
American in origin it may be, but the clause enjoys worldwide resonance. Put in modern terms, copyright seeks to promote creative works while patents promote invention. And so it remained for over 200 years or so—copyright has protected works from unauthorized reproduction and presumably thereby encourages creative works, while patents protect inventions and presumably thereby encourage the disclosure of useful ideas. As such, there appears to be symmetry between copyright and patents—each protects a presumed separate and distinct type of mental act intended to achieve a certain kind of desired outcome.

At some point in the mid to late-20th century, however, patents no longer were simply the legal means to acquire legal rights in an invention, but became intertwined with the notion of innovation. Joseph Schumpeter (“creative destruction”), here, and here, and Robert Solow, here, were key in putting innovation squarely in the centre of economic thought and, at some point, the patent system was bolted on to the notion of innovation. The result was a three-part arrangement, whereby the patent system was viewed as not only encouraging and protecting invention, but more generally enhancing innovation. What is important here is that the underlying the notion of innovation is rooted in the idea of progress. Progress is measured in part by more and better innovation and patents are part of this process. Even if the unbridled 19th notion of progress had taken a series of body blows in the 20th century, and even if the precise nexus between patents and innovation has still not been empirically established, the overall view of the patent system is clear; patents are part and parcel of innovation and progress.

But the vector for copyright and progress is much murkier. Let’s take the movie industry. Consider the year 1939, which is often described as the greatest year ever for the cinema. Against the backdrop of increasing political and economic turbulence, it never ceases to amaze that all of the following movies-- Gone With the Wind, The Wizard of Oz, Dark Victory, Goodbye, Mr. Chips, Love Affair, Mr. Smith Goes to Washington, Ninotchka, Of Mice and Men, Stagecoach and Wuthering Heights—premiered in that most trying of years, here. Even after this Kat ponders once again what Dorothy found over the rainbow, whether Rhett Butler did not really give a damn, how John Wayne managed to build his acting career as the escaped convict on the stagecoach, and did Jefferson Smith ultimately stay in Washington, is the more compelling question—does it make sense to talk about progress in the cinema? Are films today better than those that premiered in 1939? What about literature, art and music generally? The answer is clearly no, such that the notion of progress seems quite unrelated to copyright-protected creations of the mind.

Reflecting further on this question, it seems to this Kat that the best way to view progress in copyright is to see it as the handmaiden of innovation. Copyright laws came about in response to the rise of the printing press, which posed both challenges and opportunities for authors and publishers with respect to reproduction and distribution. Every subsequent pressure point on copyright has been in response to technological innovation in connection with the reproduction and distribution of creative works. If there is a notion of progress with respect to copyright, therefore, it lies within the ability to copyright to fashion arrangements that will be helpful for authors and publishers (in their various modern forms) in this context.

Against this background the copyright laws may, or may not, successfully respond to the digital world and the technological challenges that it poses. If “yes”, then progress in the sense that copyright has once again navigated the challenges of reproduction and distribution; if “no”, then progress with respect to copyright will have been arrested. But this a long way from the kind of progress connected to patents. At the most, therefore, progress in copyright is measured, if at all, by whether a critical mass of works continue to be being created. The year 2014 may not be as good a year for movies as the year 1939, but the fact that the movie industry is still robust is ultimately what matters. This may not be “progress” in the patent sense, but it is certainly worth protecting and encouraging.


Anonymous said...

Surely (and without really thinking about this) the originality standard in copyright responds to this theme (works have to get over minimum standard of creativity/originality/whatever the ECJ says the test now is, and are therefore "innovative" in the terms of your post). Reproduction and distribution issues are logically subsequent to that - they are tuning the balance of protection and permission between users and creators.

Anonymous said...

Some time ago I wrote this on the topic, at page 17-18, of the article available here:

"Mainly in relation to patent law, it has long been debated whether innovation is better served by stimulating large companies who are able to take large risks, than by encouraging smaller, perhaps more flexible and adventurous players. The issue has not yet been settled. Of course, the markets for “artistic and literary works” in which copyright traditionally operates, differ from the markets where patent law mostly plays its role. Instead of innovation – the development of better, more
efficient technologies that enhance society’s productivity – probably maximum diversity should be viewed as copyright’s main goal. One can, for example, hardly determine objectively whether Joyce’s Ulysses is ‘better’ – or even ‘more efficient’ – than Homer’s Odyssey, but the later work did undoubtedly add to consumer choice.

Anonymous said...

"Progress" most definitely becomes "murky" when it is misunderstood.

A proper understanding of 'progress' (at least in the US use of the term) includes much more than the simple lay understanding of 'better,' as in an ever better result, or ever more clear understanding.

In the US, the term 'progress' also includes 'worse,' as in results that are initially worse than the state of the art.

There are many explanations of this, including the fact that innovation is not a linear process, that innovation is often an amalagation of disparate and unrelated ideas, as well as the concept of disruptive (or discontinuous) innovation (see Christensen).

Think "more" OR "better" rather than "more" AND "better."

When viewed through this proper lens, copyright is easily seen as promoting 'progress' as it lends fuel to the creation of new original work. I would reject outright your use of the word "presumably," as I do not think that you have properly grasped the full meaning of the word 'promote.'

Neil Wilkof said...

To add to the discussion, I have been made aware of the below paper--"The Idea of Progress in Copyright Law," written by Professor Michael Birnhack.

Neil Wilkof said...
This comment has been removed by a blog administrator.
Anonymous said...

Thank you for the link.

I hesitate to move beyond the very first line of the abstract: "Copyright law is the main legal space that addresses one of the most distinct features of humankind: knowledge."

This is not properly correct.

Knowledge has absolutely nothing to do with the protection of expression.

Anonymous said...

I find it difficult to understand that 1787 might be the beginning of anything, since at that time the Statute of Anne had already been in force for nearly 80 years, and the first US copyright act (1790) appears to be, in places, a direct lift from the earlier document.

The preamble to both these acts are almost identical. It's interesting that neither of them says directly what is held to be the US credo of copyright "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But rather (Statute of Anne): "An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned."

The Statute of Anne goes on to say much more about the protection of the property rights of authors than it ever does about the public having any right to those works ("without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books"). Except there being some price control mechanism.

We also popularly believe that the rights of authors came to the fore due to the invention of the printing press. That being the case we seem to have missed the boat by 260-340 years, given that Gutenberg printed the first book with movable type in c1450.

Unknown said...

Hi Neil

Prof. Barton Beebe has been working on precisely this question - an abstract of his forthcoming paper is available here:,%20Barton%20-%20Abstract.pdf


Unknown said...

Is it really surprising that no one associates copyright law with progress?

Consider copyright in high tech.

Just look at the numbers of patent and design patent applications high tech firms have made – if that is not a representative proxy for the high tech industry’s confidence in copyright law’s ability to protect their IP then what is?

But then, why would any company or inventor concerned with protecting its/his/her creation want to rely on copyright (unless it/he/she were cash strapped or wholly ignorant of IP)? Copyright doesn’t protect the ideas which are central to creation and invention, two people can independently come up with the exact same creation and no copyright problem would arise and even where one could register copyright (which could help reduce disputes as to whether one person created a work before another) people and companies still register patents and design rights.

Now let’s broaden the definition of ‘progress’.

The high profile copyright cases of companies suing grass roots creators and individuals (e.g. for sampling, mash-ups, etc.) haven’t exactly sent the message that copyright law is helping in the creation of new art forms.

I think the real question is whether IP laws (and their enforcement) are actually promoting or hampering progress.

One could argue that patent law is protecting invention just as easily as one could argue that abuse of the patent regime is stifling innovation.

One might also cite cases of overzealous trademark protection hampering creation and easily as one could show how trademark law is promoting innovation by helping start-ups establish sold brand identities.

Legal minds have long argued for the economic benefits of IP law, maybe it’s time we conducted some truly independent economic studies into the economic benefits of copyright law in promoting progress or even IP law in general – then we would have tangible proof instead of relying on speculation.

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