Does copyright have to be “trade policy”?

Nice to see that my longtime friend Keith Serry has started a law blog focusing on “the business of creative people (and in helping creative people stay in business).” That positive focus – asking how can we help the people who need it – will, I hope, be a welcome antidote to the attack-dog postures that characterize so many copyright-focused blogs.

His first post, “While Copyright (still) Doesn’t Matter,” grapples with a key tension in copyright law: it’s justified as the means by which creative work happens, but in practice,  “Copyright is about the movement of large amounts of product and money; it’s written by and for those who can afford expensive lawyers to fight over the wording of tariffs.” And while he sees that focusing on legal minutiae can be the death of creativity, he also worries that emerging artists’ neglect of copyright law will limit their ability to feed themselves.

Copyright may be “trade policy,”* as law professor Sunny Handa notes, but Keith says it doesn’t have to be that way:

Furthermore, I can’t help but wonder if the laws would just look better — more of a human scale, more encouraging and supportive of creativity and less about the brute-force movement of money and product — if more real people used them. The Highway traffic act accounts for pedestrians, cyclists, mini-vans and transport trucks because all of these parties have expressed their interest in the outcomes of those laws by voting with their feet (and wheels).   When creative people — the nominal targets of intellectual property law — cede the use and understanding of that law to the large-scale creative economy, the ability of that law to reflect their needs is bound to be reduced.

This just happens to dovetail with my own research into the politics of copyright. As Peter Drahos and John Braithwaite, among others, remind us,** it was only in the late 1970s that U.S. legislators began treating copyright as trade policy. Given sufficient political will, it can be reformed, replaced or eliminated completely. As Keith notes, making the law (intellectual property, copyright or whatever) more useful to the artists it’s supposed to help requires that they understand the law.

Changing copyright law to make it more responsive to artists’ needs, however, involves more than just artists “voting with their feet.” It requires that artists become politically involved and lobby to make the law reflect their own interests. That’s a tall order, but there’s no way around it. Either you speak up, or someone speaks up for you.

There’s a lot to unpack in Keith’s short post. I look forward to seeing how he develops these ideas. Stay tuned.



* Actually, copyright is about both creativity and trade. It would be more accurate to say that copyright is an economic policy that shapes creative production. (And in that phrasing, my economics background is laid bare.)

** Highly, highly recommend that you read this book (the link is to a legally available pdf of Drahos and Braithwaite’s Information Feudalism). It’s one of the best books on the political decisions that created the intellectual-property laws we have today.

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