Copyright’s fundamental structure is based on outdated assumptions, including that marginal costs of copying and distribution are high, and registration systems necessarily onerous and expensive.1 International treaties embedded these assumptions into domestic laws worldwide, and for good reasons: when the Berne Convention prohibited formalities in 1908, it was a necessary response to compulsory registration systems that unfairly burdened authors.2 And, when those high marginal costs meant only the most popular works could be made enduringly available anyway, there was little downside in granting long terms that could outlast their owners’ interest: those less popular works were going to be lost regardless.3
These assumptions no longer hold good (at least for those with digital access). Registrations can occur cheaply and almost instantaneously online. The information age brought with it the widespread ability to copy and distribute many kinds of work—globally, virtually instantaneously, for close to zero marginal cost—making the deadweight loss caused by too-long copyrights precipitously larger.4
Copyright law would no doubt look very different if we were to design it from scratch today, unconstrained by existing ways of doing things, vested interests, and the international treaty framework.5 Kimberlee Weatherall and I recently led a project to explore what such a reimagined copyright could look like. The core lessons that emerged? That any copyright system we were to create today would be much better targeted towards protecting authors’ interests; would not leave availability and access so much to chance; and would impose reasonable reciprocal obligations along with rights.6
That thought experiment was a useful exercise for understanding what current approaches cause us to lose, but as we explained in our conclusions, any wholesale reimagining would be impossible to implement in practice.7 Leaving aside the powerful lobbying power of the biggest beneficiaries of existing approaches, crucial reform pathways are permanently blocked by the Berne Convention for the Protection of Literary and Artistic Works, supported (and made enforceable in the World Trade Organisation) by the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). While Berne was intended to be revised regularly to keep up with changing circumstances, it has now been almost half a century since Berne has seen any substantive change.8 Regulators and scholars have sometimes assumed Berne can be modified, albeit with difficulty,9 but that’s simply not feasible given 170+ veto-wielding member nations with their wide range of often competing interests. As Sam Ricketson writes in this volume, “you’re dreaming!” if you imagine likely any revisions to Berne.10 Walking away isn’t an option either, since that would mean loss of reciprocal global protection and ejection from the WTO.11 (providing that the instruments in Annex 1, of which TRIPS is one, are integral parts and binding on all members). Note also that withdrawal from Berne will not re-enliven the Universal Copyright Convention, because of that treaty’s special clauses applying to former Berne states. See Universal Copyright Convention, as revised at Paris on July 24, 1971, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI 1971, Appendix Declaration relating to Article XVII, July 24, 1971, 25 U.S.T. 1341, 943 U.N.T.S. 178 (1971), https://perma.cc/NUD6-UC8V.] Even new parallel international arrangements are impossible (barred by Article 20 to the extent of inconsistency), and TRIPS is proving virtually unamendable too.12 There are other international agreements that limit discretion over copyright, including the Internet treaties and various “free trade” agreements, but they are much easier to amend or withdraw from. By contrast, Berne and TRIPS effectively define copyright’s hard limits. If we want copyright to better achieve its aims, we must work within their boundaries.
While Berne and TRIPS do preclude many options for reform, there are nonetheless opportunities to navigate their gaps and flexibilities in order to secure a different bargain—one better capable of responding to the challenges of this age. The key, as I develop below, lies in disentangling copyright’s incentives and rewards motivations and updating its core assumptions. The treaties do indeed present certain “immovable obstacles,”13but that doesn’t necessarily require us to take precisely the same approaches that we have in the past. This paper seeks to provoke new thinking about the possibilities for doing things differently, to better achieve our aims, within the existing treaty structure.
The analysis proceeds in five parts. Part I highlights the failures of current approaches by evaluating them against copyright’s fundamental aims. Part II develops the failed assumptions on which those approaches are constructed, and proposes updated alternatives with which they might be replaced. Informed by those failures and lessons, Part III then sketches an alternative bargain which seeks to better secure to authors rewards from their copyrights whilst simultaneously reclaiming much of the culture lost under current approaches. Part IV briefly addresses possibilities for undermining (and expanding) that proposed alternative, before Part V concludes.
The paper’s aim is not to evangelise for the adoption of this model—significant empirical work is necessary before any responsible advocacy can occur. Rather, it is to provoke new thought about the possibilities for achieving meaningful reform, in ways that reflect current social and technological realities, without requiring impossible textual change.