What's New Podcast Transcript Season 3, Episode 9, Intellectual Property and Social Values

What’s New Podcast Transcript Season 3: Episode 9: Intellectual Property and Social Values January 14, 202000:January

Host: Dan Cohen, Dean of Libraries and Vice Provost for Information Collaboration at Northeastern University.

Guest: Jessica Silbey, Professor of Law and Director of the Center for Law, Innovation and Creativity at Northeastern University.

Host: Dan For centuries, creative works and technical innovations have been protected Cohen: by intellectual property laws, which grant exclusive rights to creators and innovators for a period of time. But this system has been challenged by the internet, revealing many fundamental problems and tensions within IP law, and perhaps more importantly leading us to ask whether the traditional concept of intellectual property truly benefits everyone in our society. [00:00:30] Host: Dan Today on What's New, intellectual property and social values. Welcome Cohen: back to What's New and our first show for the new decade of the 2020s. It's hard to believe making me feel really old or in a science fiction movie, but here we are and here today to talk about intellectual property law, both old and new, is Jessica Silbey, a Professor of Law and Director of the Center for [00:01:00] Law, Innovation and Creativity at Northeastern University. Happy new year Jessica, and welcome to the show.

Jessica Silbey: Thank you. Glad to be here.

Host: Dan Thanks for joining us, and you have a new book out very much on this topic Cohen: of intellectual property and social values called Against Progress. It will be coming out in 2020. Before we get to that book, I thought it would actually be helpful just to set the stage a little bit and look back at IP law and its history a little bit.

[00:01:30] Host: Dan I think our audience has probably heard the famous phrase about copyright, Cohen: that it exists to promote the progress of science and the useful arts. I have to admit that whenever I've heard that phrase, it really sounds, as a historian, it sounds to me like a useful fiction or a founding myth.

Host: Dan What's your view of that phrase and its utility and how it has supported or Cohen: maybe hasn't supported the creation of new works in the United States?

Jessica Silbey: When we ask what the words of the Constitution mean, we usually look to [00:02:00] the history of the document and the writing of the document. It turns out that the history of this particular phrase is very scant. There's not a lot of written history.

Jessica Silbey: What historians, legal historians have unearthed, is that what progress meant at the time, was putting a lot of new things out into the world for a fledgling nation to grow with. Writings and inventions or discoveries from [00:02:30] the clause are both about science, like science of war, science of politics, learned studies in the university, as well as inventions like the cotton gin, like different machines.

Jessica Silbey: These are all about small communities getting bigger and better and sharing their inventions through markets. It was very deliberately about helping a fledgling nation grow. I just want to say these were copyrights and patents at the time.

Jessica Silbey: The first copyright and patent statutes were in 1790 right after the [00:03:00] Constitution was ratified. Copyrights lasted only 14 years, and patents also only lasted 14 years. The exclusive rights were quite short, and it was meant to be a quick turnover. Progress was market and social progress for the new nation.

Host: Dan Really was so short in that original concept, the 1790 concept of 14 years. Cohen: Then it expanded to 14 plus 14, to 28 years. We'll get into that constant extension shortly and the imbalance it created. At least in the inception of the United States and maybe in much of its history, has it actually acted as [00:03:30] an adequate incentive for people to create new things?

Jessica Silbey: Right, so the way the progress clause has been harnessed by folks who generate these laws and argue for the benefits of copyright and patents to promote progress, talk about it, I think, and I've shown in my earlier work, The Eureka Myth, exaggerated terms.

Jessica Silbey: That is the idea that a property like entitlement to exclude other people [00:04:00] from an invention or a writing, for example, is somehow a carrot or a chit that incentivizes people to actually do the work in the first place. That's a very, I think, overstated economic analysis of how people are incentivized to do creative and innovative things.

Jessica Silbey: In my earlier book, The Eureka Myth, I spent time talking with over 50 creators and innovators about this incentive, and trying to figure out what [00:04:30] motivates them. Whether they think about intellectual property at all as a motivator, as the carrot at the end of the stick.

Jessica Silbey: It turns out the answer is, as you surmised, no. Earning a living is important to the work they do. It is one piece of a much larger, more complex puzzle of how the progress that they make with their work is accomplished.

Host: Dan Yeah, it seems like there are a lot of creators who just create, because they Cohen: like to do it. There are writers who write and never think that their novel will make them a lot of money. There are musicians who will create new things even today without the economic incentive.

[00:05:00] Jessica Silbey: Right, so I think part of what one thinks about when you think about promoting progress is you have to think there's a lot of work that gets done that doesn't get monetized. One of the questions is, if you ask musicians or artists or bench scientists or engineers or software developers, why do you get up everyday and do the work you do?

Jessica Silbey: They're not saying because at the end of the day there is a patent, or at the end of the day there's a copyright. That's not what they're saying, right? They don't say those things. What they talk about is the work environment. [00:05:30] They talk about who they like to work with.

Jessica Silbey: They talk about longterm goals, they talk about reputational benefits. There are all these other human and social dynamics that feed the work that they do, and insofar as getting paid or being valued in some way is important.

Jessica Silbey: It doesn't always have to be money value, but survival is important, and intellectual property can serve that in some way. Then there is a small role [00:06:00] to play, but it's not the incentive. It's more like a lottery ticket. Sometimes that patent pays off, but most of the time it doesn't.

Host: Dan How about maybe the most loaded word in that famous phrase, "progress," Cohen: which you've actually now used for your new book against progress? I suppose we should ask, why do you hate progress? What is it that really disturbs you about this word? Actually, what did the word mean originally?

Jessica Silbey: Right.

Host: Dan What did it mean in the young nation? What did it mean afterwards? Cohen: Jessica Silbey: Right, so throughout most of the 20th century, I would say that progress [00:06:30] meant just more. Progress is an empty term, and I think it was meant to give Congress a little bit of flexibility. To promote progress could mean a lot of things.

Jessica Silbey: Congress was given a lot of leeway to craft statutes to promote progress of science and useful arts in lots of different ways, whatever that might mean. It could be qualitative, it could be quantitative. It could be in certain fields and not others, for example.

Jessica Silbey: It was meant to be broad, but in the 20th century, the way the law has been [00:07:00] interpreted and applied, progress really just meant more. Not only more creativity and innovation, but more patents and more copyrights. We could include trademarks in that too, although they are not authorized under the same progress clause.

Jessica Silbey: You can see the expansion of copyright and patent in a bean counting kind of way, that is first of all, the scope of copyrights expanded over the 20th century. In the 20th century we get film copyright for example, which we didn't have before.

[00:07:30] Jessica Silbey: We get sound recording copyright, which we didn't have before. We get derivative work rights, which we didn't have explicitly before. That means adaptations and translations and things like that. The scope of what can be protected through copyright changes, but also the duration.

Jessica Silbey: As you mentioned, copyright is not only 14 years as it was at the founding, but it's 56 years actually. Then it becomes life plus 50 in 1976. Then in 1998 [00:08:00] it becomes life plus 70. That says, so when I die, my books are still copyrighted 70 years after I die.

Jessica Silbey: They descend to my heirs, so that's more copyrights. Also I should say, copyright attaches to anything that's fixed in a tangible medium. It used to be that you had to publish the work to have it copyrighted. Since 1976, [00:08:30] anything that you write down on a piece of paper, as long as it is minimally original, is copyrightable.

Jessica Silbey: Your email, your Instagram photo, all of those. We have so many more copyrights than we ever had before. We could say the same thing, I could tell the same story about patents. Although patent duration has not changed all that much. It's gone from 14 years to 20, but the scope of what can be patentable has also expanded.

Jessica Silbey: Progress we can generalize to say over the 20th century has just been more IP.

Host: Dan For your new book, you've taken, now that we've gone through this very

Cohen: quickly, this long history, you've brought us up to near the present. Of [00:09:00] course what's really changed in the last few decades is the internet and digital media and technology and their ability to replicate copyrighted works, and just the expansion of science and technology and just the amount of patents and innovation.

Host: Dan Once again, you've taken the approach, almost an anthropological approach Cohen: of interviewing 100 people to understand the current state of intellectual property. It does seem, as I mentioned in the intro, to be troubled and problematic intense.

[00:09:30] Host: Dan Just to set the stage, what is happening right now? Why is this in a very Cohen: difficult state that it wasn't in, let's say in 1980?

Jessica Silbey: The networked age, the beginning of the internet and the worldwide web and being able to digitize and share almost anything has put so much pressure on intellectual property regimes. At the core, what copyright and patent primarily are, are anti copying rules.

[00:10:00] Jessica Silbey: That is copyright prevents the copying of certain original expression without permission of the author except with certain limitations. Patent is the same thing. You can't make, use or sell the invention without permission of the patent owner.

Jessica Silbey: In so far as what the internet has enabled is massive amount of copying. The right click, paste, copy, send, 3D printing, make your own invention. It's an [00:10:30] existential threat to the rules that the intellectual property have laid down.

Jessica Silbey: It allows people, first of all, it's built norms of sharing and access into whole generations of people who think that sharing and copying is like breathing. The internet is essential to living today, but also the question of what can be copied or what can't be copied is always changing.

[00:11:00] Jessica Silbey: I didn't think 10 years ago that I'd be able to replace my favorite coffee mug with a 3D printer. Today I can do that, and tomorrow I don't know what the next thing that can be created through internet technology can be. The making and copying and creating of things is changing so quickly that the laws of anti copying can't keep up.

Host: Dan We're sitting here in a library recording this in the studio. I think about this Cohen: all the time. One of the things you point out in your book, which is such an

interesting point, is that all of us are talking about intellectual property more [00:11:30] than ever before.

Host: Dan Here in the library, it really does impact us. Just recently, in recent months, Cohen: there's a major publisher, one of the big five publishers, McMillan, that said they're going to refuse to sell libraries eBooks for an eight week window. They're concerned about this losing sales because of libraries being able to essentially ship out eBooks to their patrons.

[00:12:00] Host: Dan Then those patrons not buying physical books or eBooks. What you just Cohen: mentioned, just on a library scale at least, has broken this virtual connection or virtuous connection between writers, publishers and libraries that existed in the past. You really feel that tension on a day-to-day basis.

Jessica Silbey: Yeah, and I like to think about it in terms of obsolescence rather than competition. One of the things I wonder is why do book publishers feel [00:12:30] entitled to the market that they used to have and no longer have anymore? That is, of course it hurts when what you do is you build typewriters and now there's no market for typewriters anymore.

Jessica Silbey: Now there's only a market for computers, for example. It hurts to not be able to continue what you were doing in the past. One of the ways of thinking about progress is the handing over the baton to the next level of what that innovation or that creativity or that market will be.

[00:13:00] Jessica Silbey: What we have a lot in terms of the fights around intellectual property today are about incumbencies and sharing in the pie of the benefits of the innovations and people feeling left behind, because their market is shrinking while other markets are growing.

Jessica Silbey: I think it's important to question where the public interest is in this, rather than which markets are dwindling and growing, and figure out how to preserve the progress at the core, which is the writing of books and the reading of books.

[00:13:30] Host: Dan Which is of course the great benefit to society, that even the founders, were Cohen: trying to go after.

Jessica Silbey: That's right.

Host: Dan Let's dive into this, because it really seems like it's at the heart of your book,

Cohen: is the social question and the values question around IP. That if we step back and reconsider what is a centuries old question of creating laws that help society rather than hurt society.

Jessica Silbey: Yeah.

Host: Dan IP has gotten very skewed. You have lots of examples in this book where the Cohen: IP holders in a sense, and I just raised one in terms of McMillan, where there [00:14:00] are suddenly really intention with society, with the folks who use the public library who we want to be educated and want to read.

Host: Dan They are protecting their market share, and they feel really threatened. Can Cohen: you talk about it? Feel free to bring up other examples of this disjointedness and how we begin to think about this as a social and values issue, rather than as a sheer incentives and economic issue. [00:14:30] Jessica Silbey: Right, so the first thing to say is that all intellectual property is structured to keep the public interest in mind. That is promoting the progress of science and useful arts is done by granting for limited times certain rights to authors and inventors.

Jessica Silbey: After that, all intellectual property expires and goes into the public. Also, even the exclusive right of copyright and patent has substantial limitations. [00:15:00] For example, copyright, you can own a copyright in your work, but making a fair use of that work through criticism and commentary, for example, is always fair.

Jessica Silbey: Even the exclusive right has limitations. All rights have the public in mind, so that's the first thing I would say. What has happened, I think, with the attention to more and attention to market incentives in the 20th century, has been that the attention to what is the public good has diminished in light of growth in markets, growth in money and wealth aggregation.

[00:15:30] Jessica Silbey: When you see this, what you're saying is an imbalance, for example, a lot of the time people are fighting over what they see as a limited money pie. Sometimes what they're fighting about also is a dispute over the value of what the public interest actually is.

Jessica Silbey: For example, the Copyright Term Extension Act, which extended copyright [00:16:00] term from life plus 50, to life plus 70 was debated at the Supreme Court level as an incentive. That is whether the 20 extra years adequately incentivized enough authors, so that more works would be done to justify keeping more under copyright.

Jessica Silbey: Which meant keeping more from the public domain and making things more expensive. It made buying books and reading books harder for the public the longer copyright lasts. Typically, the court would have to justify that extension by saying, "Well, we're getting more public benefits for this."

[00:16:30] Jessica Silbey: The problem in that case was that no one really believed that adding 20 years was actually going to incentivize any ordinary author.

Host: Dan Right. Cohen: Jessica Silbey: It especially didn't incentivize copyrighted works that already existed. If for example, Disney had all this copyright in works that already existed, giving them an extra 20 years to the things that already existed doesn't incentivize anything.

Host: Dan Right. Cohen: Jessica Silbey: People thought that was just an irrational benefit. It was just a bonus to a [00:17:00] sitting incumbent. The way I read that case in this book, however, is if you look beyond the market arguments about market incentives and you look at how the court argues about why adding an extra 20 years to existing copyrights, as well as future copyrights is fair, promotes progress, it's because it's treating all copyright authors the same.

Jessica Silbey: Everyone gets life plus 70, not some people get 50 and other people get 70 [00:17:30] depending on whether you exist now or exist in the future. Treating all authors the same is the higher value than the market. One of the things that's problematic about the extension, as I said, is it keeps more things private and copyrighted.

Jessica Silbey: What the court seems to say is it's also elevating copyright to a nondiscrimination principle. Everybody is getting the same copyright. Now that, to people like me who think copyright's already too long, that might [00:18:00] sound well and good, treating everyone the same.

Jessica Silbey: The equality value is really important. What it misses in that analogy is there are a lot of people who are copyright authors or who will be copyright authors who are going to be hurt by the 20 year extension. That is, it's not actually treating all copyright authors the same.

Jessica Silbey: It's ignoring the new kinds of authors in the digital age. That is, it's ignoring [00:18:30] all the new ways that we create and co-author today on the internet that

requires building off what has come before in ways that were never true in the same way 20, 30, 40 years ago.

Jessica Silbey: Authorship today has changed, because the internet has changed. That decision, which purported to put equality above everything, actually didn't treat everyone the same. It ignored the new stakeholders of the internet age. That's one of the things that I think these new intellectual property [00:19:00] disputes are going to have to think harder about is that the stakeholders in IP are broadening.

Host: Dan Are some of those stakeholders, say the young rap producer who wants to Cohen: use samples from older music?

Jessica Silbey: Exactly.

Host: Dan Yeah. Cohen: Jessica Silbey: Exactly, so if we believe that all creativity is iterative and we all stand on the shoulders of giants, for example, and all creators have always built off others, doing so today is easier than ever before, and that's exciting. Digital libraries are exciting.

[00:19:30] Jessica Silbey: If copyright doesn't adapt to that new way of creating, and instead locks more down through extended copyright, that form of creativity that the internet age has enabled is actually going to be thwarted. There are new ways of balancing, I think, that the courts have not paid, or the legislatures are not paying attention to.

Jessica Silbey: Sampling is one example. Collage art is another example. Photography ... Think about how many more people are photographers today.

[00:20:00] Host: Dan I found it fascinating that you have a whole chapter in your new book on Cohen: photography, and we're just all photographers.

Jessica Silbey: That's right.

Host: Dan I was just at a meeting actually where they mentioned that just a few Cohen: decades ago there were about a billion photographs produced worldwide, and now there are a trillion produced.

Jessica Silbey: Oh my God.

Host: Dan That's because everyone has a camera in their pocket. Cohen: Jessica Silbey: That's right.

Host: Dan What is the balance there between the two of us who are amateur Cohen: photographers and professional photographers who must be freaked out to [00:20:30] be honest by this development?

Jessica Silbey: Totally freaked out, so the chapter in this book on photographers, the genesis of that was because in my earlier work called The Eureka Myth, the photographers I interviewed sounded a little different than other folks that I interviewed.

Jessica Silbey: That is they sounded more aggrieved by the internet, whereas a lot of other innovators and inventors were really excited about the internet. I wanted to investigate this more. I interviewed with two collaborators, Eva Subotnick at St. John's University and Peter de Cola at Northwestern.

[00:21:00] Jessica Silbey: We interviewed over 30 photographers to learn more about how their practices are developing in the internet age. One of the things we learned, which surprised us, is so copyright plays a role in photographers today who are still trying to make a living in an increasingly competitive environment.

Jessica Silbey: One of the things for example, as an example of competition is where staff photographers and newspapers have been cut in half. That's because a lot of people who are at events make photos with their phone. The newspapers [00:21:30] control internet and Facebook and ask for permission to use that photo from just a citizen photographer, for example.

Jessica Silbey: They don't feel the need to have those professional photographers. There's a lot of low end competition hurting photographers' careers. But they still earn a living through commissions and through ... Commercial photographers still earn a living.

Jessica Silbey: One of the things they use copyright for differently than one would expect, instead of as the chit to trade in order to get paid, it's an authenticating [00:22:00] mechanism. Copyright plays this role of attaching the photographer to their work in a way that's like a signature.

Jessica Silbey: They think should prevent inauthentic uses, for example. It might be a way to fight fake news, for example. It might be a way to make sure that things have not been staged. If you're a photo photojournalist and you're making a picture of an event, a protest for example, there are certain ethics of

[00:22:30] photojournalism that you are grounded in, and your copyright authenticates those ethics.

Jessica Silbey: Copyright becomes a professional status, rather than anything else. It's not a market mechanism as much as it's a sign of the kind of photographer you are. That was very surprising to us.

Host: Dan That's such a fascinating concept that you could really think about what Cohen: would be valued. Actually just on a professional level, right? The professionalism of it has a mental benefit for the photographer of saying, "I'm in this profession, I haven't staged anything. I'm reliable." [00:23:00] Jessica Silbey: I'm reliable.

Host: Dan Right, yeah, trustworthy. Cohen: Jessica Silbey: Right, and they assert they'll copyright in ways that might to somebody feel grabby or greedy. Not so that they could get the $150 royalty check, for example, or the $750 commission, but because they don't want their photo used in a way that degrades or recontextualizes to change the meaning of the photo in a way that would be against their professional ethics.

[00:23:30] Host: Dan How else can we start to move past these tensions and these problems and Cohen: this troubling environment to get to a new IP regime for the 21st century that really will benefit, not just the creators, but also create some balance and create society more broadly?

Jessica Silbey: There are a couple movements afoot within the intellectual property community that are trying to restore a sense of balance to the system that I think has gotten out of whack for a lot of reasons. One movement I'll talk about is the best practices movement.

[00:24:00] Jessica Silbey: This is where intellectual property tends to be a one size fits all model. That's because it's supposed to be non-discriminatory. It doesn't matter what kind of person you are or what kind of art you've made, copyright applies to everybody equally and patents the same as long as you meet the minimal standards of protectability.

Jessica Silbey: Different creative and innovative communities have different tolerances for copying and borrowing. For example, if you are a musician, you've already [00:24:30] mentioned music, a lot of musicians borrow other people's riffs, for example. They play off lyrics, they have conversational creativity.

Jessica Silbey: The way you learn music and the way you make music requires certain kinds of borrowing. The idea that there would be best practices within certain creative communities, that should be specified when you're asserting your intellectual property would be one way of thinking about balance.

Jessica Silbey: That is grounding the property rights in more specified creative fields. [00:25:00] Thinking about it that way. Another thing I think is we have to get better when we reform intellectual property laws, or we generate norms. Whether it's in a university, for example, or in a business, that we are paying broader attention to stakeholders.

Jessica Silbey: I think we have taken too narrow a view of who intellectual property serves and what it serves. Think about all the social movements, MeToo, Black [00:25:30] Lives Matter, the resurgence of the labor movement. These are all about more people having voices and asserting certain dignity interests and equitable interests in the outcome.

Jessica Silbey: I think we have to think about intellectual property as having broader stakeholders too. The more we think about that, questions about access to medicine become important with patents, for example. Questions about access to education become important with copyright, for example. The [00:26:00] more we think about broader stakeholders, I think that will help restore balance as well.

Host: Dan Does this relate to ... You have a concept in your new book of fairer use. Our Cohen: audience may have heard of fair use, which is, as you mentioned earlier, the ability to, for instance, use a portion of someone else's writing for criticism or satire or these sorts of things, rely on it a lot right here in the library. What is the concept of fairer use and how does that help us to advance the art?

Jessica Silbey: Right, so one of the things that the digital age has changed dramatically [00:26:30] about IP is that it has made more perfect enforcement of intellectual property easier. Intellectual property laws were actually not meant to be perfectly enforced.

Jessica Silbey: There was a lot of, "infringement," that just never got caught or people didn't care about. Think about speed limits for example, or jaywalking. It would be intolerable to live in a society where all of that was perfectly enforced all the time.

Jessica Silbey: The digital age has made enforcement much easier. Think about DRM and [00:27:00] take downs, for example, on YouTube sites. Things get taken down quickly

through automated systems, even maybe when it's not infringing. Patent infringement suits don't get filed, but people will over enforce patents with cease and desist letters.

Jessica Silbey: It's much easier to surveil and to prevent uses that might otherwise have been tolerated decades previously because of our internet. What the concept of fairer uses does is try to restore more of that leakiness and tolerance to our intellectual property practices.

[00:27:30] Jessica Silbey: That might be, for example, by privately agreeing to those tolerances. Having something up on your website, your photography website for example, that says you are allowed to make uses of these photos for personal non-commercial uses.

Jessica Silbey: If you're going to use them in a public slideshow, for example, please contact me at this number. That would be an example of a person [00:28:00] announcing to the world what would be beyond the copyright principle, but would be their own toleration of the uses that in earlier days might never have been caught, right?

Jessica Silbey: For example, so that's what fairer uses is supposed to be, is to recognize higher levels of toleration for copying, which is endemic to the internet age.

Host: Dan It sounds like in general, all of us need to really think about, whether we're a Cohen: reader, a writer, a photographer, a viewer of photography, we all need to think about what the benefits and drawbacks are of IP copyright patents, and to bring those values forward in our society. [00:28:30] Jessica Silbey: Yeah, I mean, intellectual property used to be a regime that was only for the geeky people in the corner who could only talk to each other. Today intellectual property is everywhere. I think as it becomes more popular and popularly understood, it is going to have more everyday social values attached to it.

Jessica Silbey: I embrace that idea, and I think talking about it more. When we care about [00:29:00] uses, and when we don't care about unauthorized uses. I think we should be having those conversations a lot more frequently.

Host: Dan Jessica Silbey's forthcoming book is Against Progress: Intellectual Property Cohen: and Fundamental Values in the Internet Age. Jessica, thanks for joining me and kicking off a new decade of What's New.

Jessica Silbey: Thanks for having me.

Host: Dan What's New comes to you from the Northeastern University library Cohen: produced by John Reed and myself, Dan Cohen, and with production [00:29:30] assistance from Debra Smith, Evan Simpson, Debra Mandel, Sarah Sweeney, and Brooke Williams. You can catch all our episodes and transcripts, and subscribe using your favorite podcast app at whatsnewpodcast.org. We'll see you next time on What's New.