Does Current Copyright Law Hinder Innovation?

Image courtesy of Lawrence Lessig.

For the past decade, Lawrence Lessig, a professor of law at Stanford Law School, has been best known as an iconoclastic, inventive voice for copyright reform. In his new book Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin, October 2008), Lessig argues that copyright law has not kept up with innovation and is in fact holding it back. Remix is of a piece with Lessig’s previous work, but it’s in the Internet arena, the focus of Remix, that he makes his most powerful arguments yet for revising copyright to enable innovation and create new markets. The Internet-enabled world of mashups and remixes — an intertwining of art that people create and art that people appropriate — has led us, Lessig argues, to a new “read/write culture.”

More than just an observer, Lessig has been involved in developing new approaches to copyright. He’s a founder of Creative Commons, a San Francisco-based nonprofit that helps many companies and individuals navigate the uncharted areas between full copyright, where all rights are reserved, and public domain, where none are. Creative Commons licenses are intended to help producers retain copyright, yet at the same time allow the copyrighted work to be remixed or repurposed. Creative Commons licenses let the creators of a work of art (or software, etc.) control what others can do with the material they created. Some Creative Commons licenses permit anything, others permit some changes in some circumstances and still others have different rules for for-profit and not-for-profit remixing.

The Creative Commons licenses Lessig advocates are quite timely in this age of Internet mashups — brand-new creations that emerge from the combination of multiple sources — but the friction between innovation, both technical and artistic, and rights holders is not new. Onstage at the TED2007 conference in Monterey, California, Lessig kicked off a rapid-fire talk by noting how John Philip Sousa, the master of American march music, was concerned a century ago about the invention of the phonograph because he feared it would end entertainment as a form in which amateurs could be stars. The phonograph limited choices, Sousa fretted — an argument one could make about large media companies today.

During the rest of his tour de force presentation at TED, Lessig galloped through a century of the battle between rights holders and innovators, inexorably bringing us to the present ascent of user-generated content, thanks to which — a century later — Sousa’s dream of amateurs getting heard has returned. Lessig made a point worth noting: The technology may be different and the money in question may be larger, but the current battles between rights holders and innovators mirror earlier ones that were played out over at least the past century.

Despite his concerns, Lessig thinks there is potential for copyright law to evolve in response to 21st-century technologies. “There’s a lot of crying and screaming at any moment of significant technical change,” he said in a recent interview. “Those who are flourishing and prospering from the current technology are the loudest screamers. But the market quickly figures out how to profit in the context of the new technology, and pretty soon into the battle, the competitive system drives people to focus on how to make money rather than how to try to stop progress. That’s what’s beginning to happen right now.”

There are plenty of pre-Web 2.0 examples of rights holders benefiting from the work of subsequent innovators. Under U.S. copyright law, for example, compulsory licenses require rights holders for songs to let others use their work, so long as there’s adequate compensation. As a result, in the music industry, there have long been cover versions in which a performer re-imagines the original version of a piece of music. Lessig advocates something similar for today’s mashup makers. “These artists mix together a whole bunch of different bits of creativity and create something new out of it. What we need for them is what people who do cover versions have the right to: nondiscriminatory access to the bits of culture that might be put together to produce something interesting or new and compelling.”

— Jimmy Guterman