Is America’s copyright system broken?
Some people level that curious claim, but they face an extremely heavy burden of persuasion.
After all, America’s system of copyright and intellectual property (IP) protections, which incentivize creators and reward their efforts, has resulted in the most innovative, influential, artistic, and prosperous nation in human history. No country or alternative system even rivals our record of creative preeminence in music, movies, television shows, news, and literature.
That relationship between copyright protections and creative dominance isn’t coincidental. It is causal.
To illustrate, the Property Rights Alliance’s annual International Property Rights Index ranks the U.S. second among the world’s nations in IP rights. Similarly, the Heritage Foundation’s annual Index of Economic Freedom also regularly places the U.S. near the very top in its property rights ranking. In contrast, nations like Venezuela, Libya, and Serbia rank at the bottom in terms of property rights protections. Although those real-world illustrations don’t settle the matter, they confirm the truth that greater property rights, not weaker property protections, lead to innovation and prosperity. The proof, as they say, is in the pudding.
Given that relationship between IP rights, innovation and worldwide artistic preeminence, it is therefore peculiar when critics disparage copyright protections, which have provided the very foundation for American innovation and prosperity. It’s even more peculiar when those critics include self-professed conservatives or libertarians. Antagonism toward copyright protections, however, is neither conservative nor libertarian.
Recently, we witnessed a perfect example of such intellectual vertigo in an October 14 Daily Caller commentary by technology activist Derek Khanna. In addition to attempting to discredit America’s system of copyright protections generally, Khanna specifically maligned proposed legislation entitled the Free Market Royalty Act (FMRA). That bill would finally end terrestrial radio’s special government privilege against paying performance rights that artists are allowed to negotiate with all other forms of use.
Simply put, the proposed legislation doesn’t “regulate the market” as Khanna claims. More accurately, the FMRA seeks to create a more level playing field for all forms of broadcast. Currently, artists aren’t compensated when their works are played on terrestrial radio, except through a cumbersome licensing process. This bill would change that and allow them to negotiate.
If some artists truly prefer to have their music played on radio for free, as Khanna alleges by magically placing himself in their shoes to divine their desires, then they would still possess that choice instead of having it forced upon them. That is the essence of free market negotiations and bargained-for mutual agreement, as opposed to the current environment in which AM-FM radio enjoys unjustified legal protection from negotiating performance rights that other forms of broadcast do.
It is for that reason that tech observers from Jerry Brito to Rob Pegoraro, and conservative voices from RedState to Free State Foundation, have applauded the principles embodied in the FMRA proposed legislation. They are joined by Americans for Tax Reform, American Commitment, Citizens Against Government Waste (CAGW), Taxpayer Protection Alliance (TPA) and my organization in favor of performance rights for artists, as well as genuinely pro-market reform of radio music royalties.
Regrettably, in addition to mischaracterizing the FMRA, Mr. Khanna goes on to misstate constitutional doctrine in his attack against America’s proven copyright system.
For example, Khanna suggests that copyright serves a solely utilitarian function. Although utilitarian principles obviously and rightfully animated Article I, Section 8’s provision that, “The Congress shall have Power … To promote the Progress of Science and useful Arts” via copyright, that was not the sole purpose. Far from it. The Founding Fathers also valued the notion that individuals possess a natural right to the fruits of their own labor and invention. As explained by the United States Supreme Court, “The economic philosophy behind the clause empowering Congress to grant patents and copyrights” is the conviction that (1) “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and the useful Arts,’” and (2) “[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”
Khanna also erroneously asserts that copyright “was very alien to that of our founding fathers.” That is facially preposterous. None other than James Madison, the Father of the Constitution himself, stated in The Federalist No. 43 that, “The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law.” And going back nearly 100 years prior to Madison, John Locke observed that, “Our handiwork becomes our property because our hands – and the energy, consciousness, and control that fuel their labor – are our property.”
Finally, Khanna offers a wish list of ways he’d like to see Congress weaken IP rights, such as opposition to free trade agreements that he believes would “further outsource American copyright law.” Never mind that American copyright law has vaulted the U.S. music and entertainment industry to a position of unmatched preeminence, as noted above. But in fact, the House Judiciary Committee has already held seven hearings on copyright this year alone, and addressed some of the points on Mr. Khanna’s wish list. Notably, none of those hearings centered on music licensing, the focus of his hyperbole. Thus, Congress is already addressing what Mr. Khanna believes they should.
What Khanna offers is a communitarian, anti-property rights agenda, not a libertarian or conservative one.
America’s uniquely protective IP and copyright tradition has provided the very foundation for our unprecedented degree of innovation and prosperity. No other system devised by man has delivered a greater record of creation or higher standard of living and choice. Many alternative systems exist, but none approach America’s in terms of real-world, indisputable results.
That is why libertarians and conservatives, and Americans generally, should celebrate and treasure our proven copyright system, not malign it.