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A system that pays a songwriter $25 for a million and a half streams of a song and keeps readers from books they want to read needs to be rethought, says a Vanderbilt law professor who is an expert on copyright law.
“We need a system that actually works,” said Daniel Gervais, professor of law and director of the Vanderbilt Intellectual Property Program. “There’s another way to do it, which is to limit the right to say ‘no’ when it comes to getting permission to use copyrighted content, but increase the cases where some form of compensation is paid.”
The current system is a harum-scarum of rules, rights and exceptions put together over time to cover new technologies as they emerged. More than 170 nations including the United States are part of the Berne Convention, an international copyright law which was last updated in 1971. The United States’copyright statute was signed in 1976, and last updated in 2016.
“It is a whole bunch of very broad rights – the right to make copies, the right to perform in public, etc.,” Gervais said. “The response to that has been to create pages of intricate and complicated exceptions, often for specific groups.”
A new system
In his new book, (Re)stucturing Copyright: A Comprehensive Path to International Copyright Reform (2017, Edward Elgar Publishing), Gervais suggests replacing the current copyright system with something much simpler.
“I’m proposing a system that rewrites all the rights and exceptions in a structured way,” he said. “Ultimately, we need a new version of the Berne Convention. It would send a great signal if the countries got together and said, ‘Let’s fix this.’”
Gervais suggests a broader use of licensing without affecting fair use. This would allow the use of more copyrights but also help creators to get paid. He acknowledges there are some users who are determined not to pay, but believes it is less of a problem than it seems.
“Millennials will watch a new movie on a streaming service, and they’ll get it illegally if Netflix or another company doesn’t make it available,” Gervais said. “But the thing is, they’ll also still go to the theater to see it. They want the social experience in a big room with their friends.
“If we put aside this civil war mentality between users and providers, there would probably be far less money lost to piracy than most people think.”
Commercially significant uses
Gervais played a role in a prominent copyright lawsuit against Google, where publishers claimed that the posting of book excerpts online should be forbidden because of copyright issues.
The ultimate solution would be allowing all books – including those that are out of print – to be available on the internet, Gervais said. An agreed-upon fee could be charged and some of the money would go to publishers and authors.
“Let’s focus on what actually matters – basically commercially significant uses – and combine it with efficient licensing systems that allow people to use the material – sometimes for free, sometimes not for free,” he said. “Let’s just redo that, and it will ease the tension between the rights and the exceptions, because right now copyright is like a civil war.”