Copyright’s Arc [1st Edition] 1108484786, 9781108484787, 1108723551, 9781108723558, 1135092280, 9781108676298

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copyright’s arc In Copyright’s Arc, Martin Skladany rejects a one-size-fits-all copyright regime. Within developed countries, copyright's incentives have spawned multinational corporations that create a plethora of slick, hyped entertainment options that encourage Americans to overconsume, whereas in developing countries, extreme copyright blocks the widespread distribution of entertainment, which impedes women’s equality and human rights movements. Meanwhile, moderate copyright in middle-income countries helps foster artistic movements that forge inclusive national identities. Given these conditions, Skladany argues that copyright should vary between countries, following an arc across the development spectrum. martin skladany is Professor of intellectual property, law & technology, and law & international development at Penn State Dickinson Law. He is the author of Big Copyright Versus the People: How Major Content Providers are Destroying Creativity and How to Stop Them (Cambridge University Press, 2018).

Copyright’s Arc MARTIN SKLADANY Penn State Dickinson Law

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108484787 doi: 10.1017/9781108676298 © Martin Skladany 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Skladany, Martin, author. title: Copyright’s arc / Martin Skladany, Penn State Dickinson Law. description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2020. | Includes bibliographical references and index. identifiers: lccn 2019060103 (print) | lccn 2019060104 (ebook) | isbn 9781108484787 (hardback) | isbn 9781108723558 (paperback) | isbn 9781108676298 (epub) subjects: lcsh: Copyright–Economic aspects. | International economic relations. | Law and economic development. classification: lcc k1420.5 .s593 2020 (print) | lcc k1420.5 (ebook) | ddc 346.04/8–dc23 LC record available at https://lccn.loc.gov/2019060103 LC ebook record available at https://lccn.loc.gov/2019060104 isbn 978-1-108-48478-7 Hardback isbn 978-1-108-72355-8 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Caroline hopeless to ever define you hopeful to forever love you

Contents

page ix

Acknowledgments Introduction

1

1

Problems of Global Copyright

9

2

Reducing Copyright in Developing Countries

24

3

Copyright, Middle-Income Countries, and National Inclusivity

65

4

Reducing Copyright in Developed Countries

105

5

Interaction between Copyright Regimes

144

6

Transitioning to Copyright’s Arc

179

Conclusion

189

Index

195

vii

Acknowledgments

I would like to thank Matt Gallaway, senior editor at Cambridge University Press, for his insightful advice and expertise. I would also like to thank Cameron Daddis at Cambridge University Press. The book was tremendously improved by the knowledge and skill of Mary Boniece. I am appreciative of the support from my colleagues at Penn State Dickinson Law, especially Dean Danielle Conway. I am also thankful for the comments of the anonymous reviewers. I wish I could put in print the names of all the individuals who have taught me over the years. In particular, I am immensely thankful to a host of individuals for their contributions and inspiration, including Bruce Ackerman, Akhil Reed Amar, Ian Ayres, Mark Bartholomew, Barton Beebe, Yochai Benkler, Bre Bennett, HaJoon Chang, Michaela Cloutier, Jeffrey Cunard, Jeffrey Edelstein, Owen Fiss, Shubha Ghosh, Gary Gildin, Yulier Gonzalez, James Grimmelmann, Dermot Groome, Henry Hansmann, Robert Harrison, Gilbert Harman, Peter Jaszi, Eric E. Johnson, Ashli Jones, Daniel Kahneman, Harold Hongju Koh, Martin Husovec, Mark Lemley, Michael Madison, Karen McGuinness, Logan Miller, Anna Ortiz, Aaron Perzanowski, Alex Phillips, Laurel Price Jones, Rhys Price Jones, W. Michael Reisman, Jacob H. Rooksby, Paul Salerni, Joshua Sarnoff, Tim Schnabel, Peter Singer, Richard Stallman, Bruce Thomas, James Whitman, and Fred Yen. I would like to thank the Journal of the Patent and Trademark Office Society for allowing me to reprint portions of previously published ideas. My hardworking, disciplined, and unbelievably generous parents inspired me through their example. Thank you. I am appreciative of my kids' love. Finally, I would like to thank my wife for her patience, editorial help, and willingness to talk ideas.

ix

Introduction

He who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god. —Aristotle1

We humans, unlike beasts and gods, have many needs and are insufficient in ourselves. We are in art’s grip, needing to consume and create art for the intellectual stimulation, for the challenge, for the joy of standing in the presence of beauty and communicating with fellow humans. There may be no escaping it. Or, if escape is possible, freedom from art is an ill-advised strategy for living. Given the importance of art to our being, the regulation of it through copyright is of fundamental importance. Art is a universal human need, but the meaning and impact of particular works can vary, and our response to art can vary depending on our life circumstances. A film by Ousmane Sembène critiquing the new bourgeoisie may galvanize Senegalese citizens but inadvertently pander to Americans; likewise, a Hollywood blockbuster celebrating liberal values may entertain and distract audiences in developed countries but inspire and politicize them in developing countries. The overarching policy of copyright should be to assist, when possible, in maximizing the positive potential of art’s different roles and to adapt to the needs of different societies. Practically this means different societies require not only different amounts and types of art but different amounts and types of copyright regulation. Copyright is not inherently good or bad; neither is it an end in and of itself. It is a tool that is only sometimes helpful. Thus, copyright law should not be uniform across countries but rather vary, possibly substantially, from one country to the next. 1

Aristotle, Politics (bk. I, 1253a27–29), in 2 The Complete Works of Aristotle 1986, 1988 (J. Barnes ed., B. Jowett trans., Princeton University Press 1985) (c. 350 B.C.E.).

1

2

Introduction

This book argues that copyright should follow an arc across the development spectrum: copyright’s scope, depth, and length should be substantially reduced in both developed and developing countries, where it harms or hinders the development of individuals and societies, but it should continue in varying, but reduced, degrees in middle-income countries like China, Nigeria, Mexico, and Russia, where it can stimulate continued development.2 In developing countries, copyright should be minimized to allow for the freer flow of domestic and international artwork. Over time, such broad distribution would encourage developing country citizens to deepen their commitment to liberal values. An example of the positive impact of increased distribution has been documented by Robert Jensen and Emily Oster in their study on the introduction of cable TV in rural Indian villages; the study found that both domestic and international artwork had a rapid and robust positive influence on women’s perceptions of themselves and their actions.3 In middle-income countries, where more individuals have the opportunity to make a living as artists and to draw fulfillment from creating, copyright can help spawn an artistic renaissance and advance development through forging a constructive, inclusive national identity. Yet the society may reach a stage in the transition from middle income to rich where copyrighted art is so successful that it turns most citizens into overly passive consumers and in effect monopolizes creativity. Hence in developed countries copyright should be minimized to reduce the amount of artwork average citizens consume in an effort to spur them to create more on their own. In this arc of three distinct phases, copyright must support the human quest for value and meaning, in which creativity plays an essential part.

developing countries on copyright’s arc Entertainment corporations have effectively lobbied the US government to put pressure on other countries in trade negotiations to increase intellectual property (IP) protections. In the face of the subsequent extreme global copyright regime, diverse groups have banded together to critique current IP laws under numerous movements, such as the access to knowledge and intellectual property social justice movements.4 2

3

4

Throughout the book, I use the World Bank’s classification system to divide economies into developing, middle income, and developed, although I conflate the World Bank’s lowermiddle-income and upper-middle-income economies into one category. World Bank, World Bank Country and Lending Groups, World Bank, https://datahelpdesk.worldbank.org/knowl edgebase/articles/906519-world-bank-country-and-lending-groups (last visited Sept. 15, 2019). Robert Jensen & Emily Oster, The Power of TV: Cable Television and Women’s Status in India, 124 Q.J. Econ. 1057, 1059 (2009). At the time, India was classified as a developing country. It is now considered a middle-income country. See generally Lea Shaver, Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development (2d ed. 2010); Joshua D. Sarnoff, Research Handbook on Intellectual Property and Climate Change (2016); and

Developing Countries on Copyright’s Arc

3

While activists and scholars are working to make all fields of IP responsive to the needs of diverse groups – for example, in patent law through more widely distributing lifesaving drugs – a large thrust of their copyright efforts in developing countries have centered on increasing access to educational materials. Meanwhile, intellectual property social justice theorists, such as Lateef Mtima, properly reorient our attention to the fact that “the ultimate function of intellectual property protection is to cultivate human development and advancement,” which may require “that prevailing intellectual property norms can and should be socially rehabilitated.”5 My focus is the value of significantly weakening copyright law so as to maximize the circulation of both developing and developed country artwork in developing countries, bearing in mind that one key lesson of intersectionality has been that any uniform policy will tend to have disparate impacts on different groups.6 We need to recognize that freely accessible artwork has the ability over the long term to alter how individuals think about human rights, freedom, and equality and hence to improve how countries fundamentally operate. Developing countries must battle to attain the rule of law and good governance – the fundamental components that define development more than economic success – in the face of domestic corruption and international exploitation.7 In these circumstances, there are too few tools to defend human rights – for example, prosecutions, explicit educational campaigns, and name-and-shame tactics – and many of the existing tools lose their intended power when wielded by corrupt public officials who deny democracy and suppress equality. Cronies make ineffective anti-corruption task force members. Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (2012). Rosemary Coombe notes that IP is now considered in relation to principles of environmental sustainability, access to knowledge and means to sustain health, the civil rights of minorities, the social rights of the disabled, recognition of indigenous peoples’ cultural heritage, equality of opportunity for creator groups, security of subsistence livelihoods, food sovereignty, and the maintenance of biological diversity, to name but a few of the new global terrains of struggle in which it figures.

5

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Rosemary J. Coombe, Foreword: Diversifying Intellectual Property, in Diversity in Intellectual Property: Identities, Interests, and Intersections xviii (Irene Calboli & Srividhya Ragavan eds., 2015). Lateef Mtima, From Swords to Ploughshares: Towards a Unified Theory of Intellectual Property Social Justice, in Intellectual Property, Entrepreneurship and Social Justice 265, 265–66 (2015). See generally Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989). World Bank, supra note 2. The countries on the World Bank list of low-income economies are Afghanistan, Benin, Burkina Faso, Burundi, Central African Republic, Chad, The Democratic Republic of the Congo, Eritrea, Ethiopia, The Gambia, Guinea, Guinea-Bissau, Haiti, North Korea, Liberia, Madagascar, Malawi, Mali, Mozambique, Nepal, Niger, Rwanda, Sierra Leone, Somalia, South Sudan, Syria, Tajikistan, Tanzania, Togo, Uganda, and Yemen.

4

Introduction

One policy that does not suffer from this defect is to have developed countries cease pressuring developing countries to maintain excessively restrictive copyright regimes and, instead, begin encouraging them to substantially decrease copyright protections. Considerably scaling back copyright in developing countries would dramatically increase the amount of freely available artwork there. While domestic and foreign works can be quite variable and far from ideal, they often implicitly or explicitly communicate valuable messages.8 Thus, in the long run, exposure to progressive messages would inspire greater respect for human rights in a significant number of individuals within developing countries.9

middle-income countries on copyright’s arc When a developing country transitions into a middle-income country, it reaches a level of income at which most of its citizens are not struggling for survival on a daily basis, although variations will, of course, exist within and between similarly situated countries at any rung of the economic ladder.10 In middle-income countries, life is still hard, but it is less tragic. Industry is more developed, education is approaching universal coverage, health care is a possibility for more than just the elite, water is cleaner, and social safety nets begin to appear, like Brazil’s Bolsa Família conditional cash transfer program, which provides monthly grants to millions of families and serves as a minimum income floor. At this middle-income stage of a country’s development, copyright law has a better chance of motivating individuals to create artwork contingent on legal protection, such as TV and film, than it does at the poorest stage. This is because many citizens are productively engaged in the formal economy, not toiling on its fringes, and their discretionary income can drive demand for more plentiful locally produced artwork. Additionally, because most individuals are not fighting for their continued existence and hence have greater access to education and markets, some have the luxury of real choice of profession and will become artists. The traditional tension in copyright law – between encouraging artists to create and providing the widest possible access to artwork – is most relevant to 8

9

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For an examination, distinct from my analysis, of the need to consider aesthetics in copyright jurisprudence, see Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247 (1998). The policy of encouraging the wider distribution of entertainment within developing countries does not have to violate the doctrine of aesthetic nondiscrimination or push for protection of works only with a particular ideological view – I am simply arguing for an expansion in circulation of both domestic and international works, writ large through a substantial reduction in copyright protection. World Bank, supra note 2. A few of the more than 100 countries on the World Bank list of middle-income economies are Albania, Belarus, Bolivia, Botswana, China, Colombia, Cuba, Ghana, Kenya, Kosovo, India, Indonesia, Malaysia, Mexico, Mongolia, Nigeria, Peru, Russia, South Africa, Thailand, Turkey, and Vietnam.

Middle-Income Countries on Copyright’s Arc

5

middle-income countries. Moderate, not extreme, copyright has a real chance not only to spur middle-income artists to create but also to benefit the general public by inspiring new artists to imagine the works that will be instrumental in building an inclusive vision of national identity – a vision that increases the odds that individuals will reach across their ethnic, tribal, or family boundaries to oppose corruption and improve the lives of all citizens. Instilling a belief in human rights and strengthening the bonds of citizenship are valuable for both developing and middle-income countries, but developing countries do not have enough homegrown artists working in artistic mediums reliant on copyright to be motivated by a copyright regime to create. Copyright will not inspire citizens at the brink of starvation or facing physical conflict to create TV shows, films, and videogames. When a country is poor, the best copyright can do is to get out of the way so that international works can step into the void and effectively promote universal human rights. As a country reaches the middle-income stage, however, copyright can spur an aesthetic resurgence that promotes the twin goals of human rights and an inclusive sense of the public good. Copyright protection is critical in middle-income countries because no one – no foreign artist and no multinational corporation – can craft another country’s identity. Only local artists will be motivated to imagine works that forge a nation from many peoples. As Kalista Sy, the writer of a television series Mistress of a Married Man, states, “It’s for Senegalese people first, then for the world.”11 It was at a similar stage in Europe’s historical trajectory, during the early modern period, that Europeans adopted copyright and used it, with the printing press, to develop the nation state.12 Even though such monopoly protection was established in part to hone the state’s ability to censor certain works by denying the privilege to print, it freed artists from patrons by providing them an alternative source of income. Copyright’s ability to allow artists to switch their allegiance away from patrons and toward a larger audience enables them to imagine national unity through building tolerance. At this stage of a country’s development, copyright also incentivizes intellectuals to support the rule of law and good governance to promote the continued development of markets, which enables them to speak to a wider audience and prevents a return to a feudal system. In essence, copyright is at its most valuable because it is in a position to benefit more of the general population – not simply a small subset of individuals desiring to maintain an unjust society, as is currently the case in some developing countries, or a small

11

12

Julie Turkewitz, Bold Women. Scandalized Viewers. It’s “Sex and the City,” Senegal Style., N.Y. Times, Aug. 22, 2019, https://www.nytimes.com/2019/08/22/world/africa/senegal-mistressof-a-married-man.html?smid=nytcore-ios-share. Senegal is classified as a middle-income country by the World Bank. On print capitalism and the nation, see Benedict Anderson, Imagined Communities (1991).

6

Introduction

group of elite artists and content providers with vested economic interests, as we currently see in developed countries.13

developed countries on copyright’s arc The most prominent existing criticism leveled against copyright in developed countries is that it excessively restricts artists’ access to material that is integral to their ability to create. This book takes a broader view, arguing that copyright law should be notably cut back in developed countries in order to dampen overconsumption of commercial art and to encourage the average citizen to create. While copyright is in theory supposed to incentivize everyone to create, the financial inducements provided by copyright to corporate content providers are so great that Hollywood has flooded developed societies with commercial art and advertisements publicizing it, and this deluge encourages the vast majority of individuals to consume art, rather than create it. While digital technologies and the internet are tools that could allow anyone to create in certain media, the fact is that only a fraction of the population has been empowered by this opportunity. The majority of Americans do not create; instead, they use the internet to consume more and more entertainment that is more hyped, more polished, and, thanks to research into hook techniques, more addictive than ever before. For example, Hollywood is increasingly using a host of medical technologies, such as functional magnetic resonance imaging machines, to monitor how our brains react to entertainment in a quest to make it irresistible. Dave Poltrack, who retired in 2019 as CBS Corporation’s chief research officer, believes that “we should all feel a little paranoid and a little manipulated by all of this.”14 Excessive copyright protection has turned the last refuge of humanity – art – into a slick corporate weapon that Hollywood wields to control the majority of our waking hours in the name of profit. Americans consume on average 9 hours and 30 minutes a day of entertainment.15 This figure does not even include time spent using social media. 13

14

15

Furthermore, the risks of overconsumption will be alleviated by a host of factors that are largely absent in developed countries. For example, while individuals will have more income to spend, it is unlikely that they will be able to buy vast amounts of copyrighted artwork, nor will most have the luxury of substantial amounts of free time in which to consume. Jessica Toonkel, TV Networks Open Labs to Read the Minds of Viewers, Reuters (Nov. 4, 2015, 10:14 AM), http://www.reuters.com/article/us-tv-neuroscience-research-insight/tv-networksopen-labs-to-read-the-minds-of-viewers-idUSKCN0ST0IS20151104. Adding social media, which often includes corporate entertainment, brings the daily average to 11 hours and 27 minutes. I used Nielsen’s Total Audience Report data and then subtracted GlobalWebIndex’s statistics on social media to get to 9 hours and 30 minutes. The Nielsen Company, The Nielsen Total Audience Report Q1 2019 2 (2019) and GlobalWebIndex, Social: GlobalWebIndex’s Flagship Report on the Latest Trends in Social Media 8 (2019).

Equality, Justice, and the Function of Law

7

The pleasures of addiction are no substitute for the joys of creating. Every individual needs to create something on his or her own. The actual object or idea does not necessarily matter; rather, the process of creation is critical. Appreciably reducing copyright’s protections would diminish the overconsumption of commercial art in developed countries and encourage more of the public to begin to create art for themselves. More critically, we would be building a democracy of people who make rather than people who merely sample, a society that creates as well as clicks. Just as attempting to build national unity can go disastrously too far into nationalism, so can copyright’s monopolistic protection. With the transition from middle-income to developed country, copyright’s vision of encouraging artists to communicate transforms into an incentive for large corporations to control. Thus the monopoly protection copyright provides in developed countries harkens back to the days of patronage in its narrow focus on who benefits; it is a tool enabling a small group of multinationals to increase their profits at all costs through manufacturing quasi-addictive content.16 Copyright no longer serves the positive function of trying to inspire individuals to see themselves as citizens but rather effectively imprisons them in front of screens.

equality, justice, and the function of law Georges Clemenceau once sketched an arc of culture, averring that “America is the only nation in history which miraculously has gone directly from barbarism to degeneration without the usual interval of civilization.”17 While I am not remotely suggesting that any society is either barbaric or degenerate, all societies are forever fated to be vigilant against capture and to advocate for those who cannot advocate for themselves. Law has been given the challenge to be both equal and just. This is a monumental task that will never occur if the law is written for the benefit of corporations. The law will also fail at justice and equality if it treats us all the same.18 Life is gloriously complex and fluid. Copyright’s arc addresses this richness by adapting to the needs of different societies at different stages, and I hope it will prompt further thinking about how to create pluralistic intellectual property regimes to better serve human flourishing. After all, the arc I describe may require further refinement to take into account the diverse range of human experiences and situations. As Jean-Jacques Rousseau stated, “Good laws lead to the making of better ones; bad ones bring about worse. As soon as any man says of the affairs of the State ‘What 16

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This content, though quasi-addictive, can convey liberal values or even annoy the addicted consumer with the preponderance of liberal values conveyed. Quotation attributed to Georges Clemenceau in Hans Bendix, Merry Christmas, America!, Sat. Rev. Lit., Dec. 1, 1945, at 9. See generally Peter Landau, “Aequitas” in the “Corpus Iuris Canonici,” 20 Syracuse J. Int’l L. & Com. 95 (1994).

8

Introduction

does it matter to me?’ the State may be given up for lost.”19 This book aims to show how extreme copyright across the globe is diminishing how people interact with each other. It argues that revisions in copyright can defend human rights, promote inclusiveness, and encourage creativity by the general public, not just an elite few. We must have reasons to want to change and a vision of what change could look like in order for any change to be possible. Power is inevitable but also warps human interaction. No one law, nor law in general, can force us to be kind to each other or ensure that we converse as political equals. Yet law can make it more or less likely that such interactions occur. Copyright’s arc would strip away the current disincentives to such communication – for example, lack of access to art in developing countries and too much access to corporate art in developed countries. It would help set the conditions for humans, social creatures and creators, to do what comes naturally: aspire to connections, remedying each other’s lack, and do so as equals, in conversation and through art.

19

Jean-Jacques Rousseau, On the Social Contract 64 (G.D.H. Cole trans., Dover Publications 2003) (1762).

1 Problems of Global Copyright

True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures – unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state. —John W. Davis1

John W. Davis reminds us of the immense importance of getting the law right so that others can make their contributions to society. But, just as good doctors or teachers are careful to tailor their work to each particular patient or pupil, we need to tailor copyright law to the needs of societies. If we continue to assume that copyright should function uniformly, then copyright law will continue to do harm to all those who are not the equivalent of the standard patient or pupil. In truth, the perversity of the current global copyright regime is mind-boggling. Imagine the principal law governing health care reducing overall health – even for the rich. Imagine the principal law regulating education actually making kids less intelligent on average. However, if we acknowledge that copyright can play numerous roles and that its effects depend on social variations, then we can turn it into a force for good. Currently, there is one reality to copyright law across the globe – extreme protection. Of course, how, and to what extent, copyright shields works of authorship varies from one country to another, yet this variation rests on top of excessive protection.2 Even more astonishing, in the face of such uniformity there are two 1

2

John W. Davis, Address, New York, N.Y. (Mar. 16, 1946), in 1 Record of the Association of the Bar of the City of New York 101, 102 (1946). Shubha Ghosh, A Roadmap for TRIPS: Copyright and Film in Colonial and Independent India, 1 Queen Mary J. Intell. Prop. 146, 162 (2011) (positing the “provocative thought that there may have been more freedom to operate and to create intellectual property tailored to local circumstances under the British Raj than under the World Trade Organization”).

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Problems of Global Copyright

main theoretical justifications for copyright: a utilitarian perspective, found in common law countries such as the United States, that balances incentivizing artists to create versus maximizing the distribution of art, and an authorial rights conception, based in natural rights, prevalent in much of the rest of the world.3 Both theories apparently lead to the same practical outcome, and both are applied not only to similarly situated countries (e.g., the United Kingdom and Germany) but also to countries that are on opposite ends of the development spectrum (such as Singapore and Papua New Guinea). Of course, what led to strikingly similar levels of copyright protection, under both theories and under all economic conditions, was in fact money – corporate lobbying applied to governments. We are allowing the greed of a few to dictate how the law treats one of the most important aspects of our humanity: our relationship to art. We give uncomplicated sources of policy – moneyed interests – priority over complex systems that include our collective cultural and social bonds. The results are ruinous. We must question Big Copyright’s narrative that uniform global copyright policy will bring consistent, positive results.4 Life is not straightforward. Few stories that are clear-cut or simple are believable, because we expect caveats, complications, differing contexts, and unforeseen consequences. Given the importance and complexity of art, the reality of extreme copyright across the world cannot be so neat. In fact, a relatively uniform law across the globe leads to different outcomes that clamor for reform. This chapter sets up a more extended argument about the necessity of global variation by briefly explaining how we got to extreme copyright, giving a few examples of its severity, and summarizing the insights of others as to how the current laws do harm.

corporate capture Hannah Arendt believed that “power can be thought of as the never-ending, selffeeding motor of all political action that corresponds to the legendary unending accumulation of money that begets money.”5 If societies do not take deliberate steps to prevent rent seeking – the unproductive use of lobbying dollars to secure rents – actors will pursue such a strategy.6 Such endless quest for more power is a longknown enemy of the public good. Citizens know the corrosive effects that occur when companies seek money above all else in many fields, including social media 3

4

5 6

While the scope of my argument applies equally to all developed countries, for convenience’s sake I will sometimes refer only to the United States. Throughout this book I use the terms Big Copyright, Hollywood, entertainment companies, and entertainment multinationals synonymously. Hannah Arendt, Origins of Totalitarianism 137 (Houghton Mifflin Harcourt 1976) (1951). Ray Fisman & Miriam A. Golden, Corruption: What Everyone Needs to Know 16 (2017).

Corporate Capture

11

and the energy sector, but they largely do not appreciate how traditional entertainment companies have distorted copyright laws globally. Sometimes corporate entertainment bosses are confident enough in their lobbying prowess that they publicly state their lack of interest in society’s benefit. For example, Greg Frazier, a vice president at the Motion Picture Association of America (MPAA), sneered at Creative Commons supporters for “‘talking about democratizing culture, which is not one of our interests. It really isn’t my interest.’”7 During the US 2016 election cycle, “the television, movie and music industry made $86.4 million in political contributions.”8 As you can probably guess, the informal coalition of academics, libraries, and nonprofits who oppose extreme copyright did not give politicians anything close to $86.4 million as a counterweight.9 Besides their size, what makes Hollywood’s donations so powerful is their consistency; politicians can rely on them during each election cycle. During the 2012 and 2014 cycles, 18 of the 26 sitting members of the House Judiciary Subcommittee on Intellectual Property received donations from the MPAA, Disney, and the Recording Industry Association of America (RIAA).10 An ordinary citizen could be forgiven for assuming that such donations would require a congressperson to recuse him- or herself from sitting on the committee, but this is not the case. Entertainment corporations are confident because they have millions to spend on political contributions and extensive lobbying efforts.11 In 2018, the Internet & Television Association, a trade group concentrating on television and broadband, 7

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William Patry, How to Fix Copyright 13 (2011) (citing Ernesto Van der Sar, MPAA: “Democratizing Culture Is Not in Our Interest,” TorrentFreak (Apr. 20, 2011), http:// torrentfreak.com/mpaa-democratizing-culture-is-not-in-our-interest-110420). Will Lennon, TV/Movies/Music: Background, OpenSecrets.org: Center for Responsive Politics (last updated Oct. 2018), https://www.opensecrets.org/industries/background.php? cycle=2020&ind=B02. For a nuanced analysis of universities’ complicated relationship to expanding IP protection, see Jacob H. Rooksby, A Fresh Look at Copyright on Campus, 81 Missouri L. Rev. 769 (2016) and Jacob H. Rooksby, The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property and Why It Matters (2016). Derek Khanna, Guarding against Abuse: Restoring Constitutional Copyright, 20 (R Street, R Street Policy Study No. 19, Apr. 2014), http://www.rstreet.org/wp-content/ uploads/2014/04/RSTREET20.pdf. Christopher Dodd, Valenti’s successor, admitted that the studios themselves are all part of giant corporations, whose own interests don’t always jibe, in the sense that Sony produces devices and also content, through Columbia Pictures, while Comcast owns cable-television systems and also makes movies through Universal. He rejected casting the current conflict as one between “old” media and “new,” and noted that a company like Pixar uses cutting-edge digital technology to produce content with oldfashioned first-rate storytelling at its heart. Todd S. Purdum, Getting Reel, Vanity Fair, Apr. 13, 2012, https://www.vanityfair.com/news/ 2012/04/chris-dodd-sopa-pippa-mpaa.

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Problems of Global Copyright

spent $13,240,000, while the National Association of Broadcasters burned through $14,170,000.12 Comcast, which owns NBCUniversal, used $15,072,000 to lobby politicians in the same year. Comcast spent more than $8 million of that amount hiring 39 lobbying groups to do its bidding.13 Big Copyright does not give politicians cash simply when they are in office but also after they retire from public service. The only thing that changes is that the former politicians get to keep the money instead of spending it on campaigning. Hollywood does this by providing the loyal expoliticians with generously paid lobbying jobs so that they can arrange to give money to the next generation of politicians in need of campaign contributions.14 Big Copyright also capitalizes on the status of its celebrities. Ian Hargreaves led a review of intellectual property in the United Kingdom commissioned by the then prime minister. The group’s finding was: “In the case of IP policy and specifically copyright policy, . . . there is no doubt that the persuasive powers of celebrities” has “distorted policy outcomes.”15 As Ronald Brownstein argues, Hollywood executives know that politicians crave numerous things from movie stars beyond campaign contributions – from basking in the stars’ glory to increase their own fame, to simply sharing “the intoxicating company of the famous and beautiful.”16 Even the lobbyists and their organizations appear to have cachet. Vanity Fair has called a former head of the MPAA, Jack Valenti, “Washington’s highest-paid lobbyist for its sexiest trade group.”17 The newest front in Big Copyright’s arsenal of advocacy tools is so preposterous that one is almost tempted to applaud their creativity and ambition.18 Regarding the EU Copyright Directive, Cory Doctorow states that the EU “Parliament gave public money to a corporation that stands to make millions from a piece of legislation, and then asked that corporation to make a video that used false statements and hysterical language to discredit the opposition to the law.”19 Doctorow emphasizes the 12

13 14

15

16

17 18

19

Joe Perticone, The 20 Companies and Groups That Spend the Most Money to Influence Lawmakers, Business Insider, Mar. 11, 2019, https://www.businessinsider.com/lobbyinggroups-spent-most-money-washington-dc-2018-2019-3. Id. Timothy B. Lee, How the Revolving Door Lets Hollywood Shape Obama’s Trade Agenda, Vox (Apr. 22, 2014, 8:30 AM), https://www.vox.com/2014/4/22/5636466/hollywood-just-hired-anotherwhite-house-trade-official. Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth 93 (2011). Ronald Brownstein, The Power and the Glitter: The Hollywood-Washington Connection 4–6 (1990). Purdum, supra note 11. Such abuse goes beyond lobbying for more generous IP protection to also include exploiting the intersection of IP and other areas of law, such as tax. See generally Jeffrey A. Maine & Xuan-Thao Nguyen, The Intellectual Property Holding Company: Tax Use and Abuse from Victoria’s Secret to Apple (2017). Cory Doctorow, The EU Hired a Company That Had Been Lobbying for the Copyright Directive to Make a (Completely Batshit) Video to Sell the Copyright Directive, Boing Boing (Mar. 7, 2019, 5:58 AM), https://boingboing.net/2019/03/07/govt-paying-lobbyists.html.

How Hollywood Came to Wield Its Power Internationally

13

absurdity of this scenario that goes beyond lobbying: “this is public officials paying lobbyists to sway public opinion to win a law that will vastly enrich the corporation the lobbyists represent.”20 Doctorow continues, “If the Directive passes, it will be an example of the EU willfully ignoring both public will and the best expert advice to serve the narrow interests of a handful of giant media companies, creating a policy that will devastate Europe’s hopes for developing its own tech sector, while dooming artists to permanent bondage to a handful of abusive media companies.”21 The directive passed in 2019.

how hollywood came to wield its power internationally Legislatures have largely ceded copyright policy to special interest groups – Hollywood. Such relinquishment of the public’s interest regarding copyright is not a new phenomenon; lawmakers abdicated the common good back when copyright was largely thought of as an area of law regulating behavior between entertainment corporations. As Jessica Litman states, “By the 1920s, the process was sufficiently entrenched that whenever a member of Congress came up with a legislative proposal without going through the cumbersome prelegislative process of multiparty negotiation, the affected industries united to block the bill.”22 She argues, “Copyright bills passed only after private stakeholders agreed with one another on their substantive provisions. The pattern has continued to this day.”23 The obvious problem is that those left out of this process – the public – have no say or standing. Without any party pushing back against Hollywood’s demands, there has instead been a consistent ratcheting up of copyright protection. As Paul Goldstein points out, “Representatives and senators may regularly invoke the principle that copyright owners bear the burden of persuading Congress of the need to bring new rights within the sweep of copyright, but Congress has never once required authors or publishers to demonstrate that, in fact, they need the new right as an incentive to produce literary and artistic works.”24 Hollywood took this approach of excluding other stakeholders and applied it globally long ago. The strategy had at least two tactics, which mirrored and reinforced each other. The first, as Litman explains, was to encourage Congress “to beef up domestic copyright law at home, and thus ensure that people in other countries paid for any use of copyrighted works abroad.”25 Even though copyright 20 21 22 23 24

25

Id. Id. Jessica Litman, Digital Copyright 23 (2006). Id. Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox 141 (2003). See also Eric E. Johnson, Intellectual Property and the Incentive Fallacy 39 Florida State University L. Rev. 623 (2012). Litman, supra note 22, at 81.

14

Problems of Global Copyright

laws are territorial – for example, US copyright law ends at US borders – “supporters of expanded copyright protection argued that by enacting stronger copyright laws, Congress would set a good example for our trading partners, who could then be persuaded to do the same.”26 Of course, such “persuasion” would be accompanied by threats. Litman argues that Hollywood won over Congress by reframing the issue: “Proponents of enhanced protection changed the story of copyright from a story about authors and the public collaborating on a bargain to promote the progress of learning, into a story about Americans trying to protect their property from foreigners trying to steal it.”27 As her analysis shows, “That story sold. It offered an illusion that, simply by increasing the scope and strength and duration of US copyright protection, Congress could generate new wealth for America without detriment or even inconvenience to any Americans. That recasting of the copyright story persuaded Congress to ‘improve’ copyright protection and cut back on limitations and exceptions.”28 While the first strategy was to increase domestic copyright to spur increases in protection abroad, the second strategy was the reverse – to press for international increases, and stronger international enforcement, in order to strengthen domestic copyright laws. In other words, Congress could backdoor increases in domestic copyright by first negotiating international agreements that made copyright even more extreme and then telling their constituents that such new laws needed to be passed because we had already signed off on them. To understand how Hollywood was able to do this requires taking a quick historical detour.29 Up to the early 1960s, the US Department of State was in charge of trade diplomacy.30 Domestic companies in numerous sectors were frustrated that the State Department would, at times, give foreign countries trade concessions to further the US public’s benefit in other foreign policy areas, such as national security. Not used to having their interests come second, US corporations advocated for the establishment of a special representative for trade negotiations, later to become the Office of the US Trade Representative (USTR), which would be in charge of all trade negotiations and could not provide trade concessions in exchange for cooperation in other foreign areas of strategic interest. With the passage of the 1962 Trade Expansion Act (TEA), corporations got their wish.31 Intellectual copyright laws were not an initial focus of the USTR. Entertainment companies became increasingly frustrated with the fact that intellectual copyright 26 27 28 29 30

31

Id. Id. Id. This proposal is not anti-international trade in general. History of the United States Trade Representative, Office of the United States Trade Representative, https://ustr.gov/about-us/history (last visited Aug. 18, 2019). Id.

How Hollywood Came to Wield Its Power Internationally

15

treaties and the UN World Intellectual Property Organization (WIPO) did not have robust enforcement mechanisms at their disposal in case of noncompliance by signatory states. Noting how US corporations pushed for trade deals affecting them to go through a new organization (the USTR), entertainment corporations argued that copyright, and IP in general, should be brought under the umbrella of international trade mechanisms and made central to the USTR’s mission. They desired this arrangement because international trade agreements had teeth – i.e., sanctions could be employed against other countries. Susan Sell argues that since the 1970s Hollywood has been lobbying government in general and USTR representatives in particular to get them to do Hollywood’s bidding.32 To make matters worse, Big Copyright quickly learned to take advantage of the fact that the USTR is “exempt from the Administrative Procedure Act and functionally exempt from the bulk of the Federal Advisory Committee Act.”33 Margot Kaminski argues that the existing trade regime’s institutional design enables negotiators to ignore the public good and to paraphrase US statutes when drafting international agreements; as a result, the USTR is vulnerable to capture by Big Copyright.34 The USTR is tasked with exporting US IP law, but its ability to paraphrase the law facilitates the introduction of subtle but significant distortions. This is a dangerous situation, given that Hollywood’s representatives get to sit on the USTR IP advisory committee and that details of trade negotiations are withheld from the public and the press. In fact, members of Congress were prohibited from seeing any drafts of the Trans-Pacific Partnership (TPP) during the first three years of its negotiation.35 As a result of these institutional features, the trade policy-making regime lacks transparency, lacks accountability, and lacks input of opposing views; it is systemically lopsided in favor of vested interests. Kaminski argues, “This subset of IP stakeholders, with access to current information and the ability to discuss negotiating proposals with US negotiators, is able to nudge the law in free trade agreements toward the kind of IP law they would prefer existed domestically.”36 For example, USTR representatives “change unfavorable domestic rules into more pliable international standards, codify favorable domestic judicial interpretations as international rules, 32

33

34

35

36

Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights 65–95 (2003). Margot E. Kaminski, The Capture of International Intellectual Property Law through the US Trade Regime, 87 S. Cal. L. Rev. 977, 977–78 (2014). Id. at 978. Susy Frankel argues that Vienna Convention on the Law of Treaties rules that govern how to interpret international treaties can help support diverse groups and developing countries when analyzing international IP agreements. See generally Susy Frankel, Test Tubes for Global Intellectual Property Issues: Small Market Economies (2015). Eric Bradner, How Secretive Is the Trans-Pacific Partnership?, CNN (June 12, 2015, 11:11 AM), http://www.cnn.com/2015/06/11/politics/trade-deal-secrecy-tpp/index.html. See also James Hirsen, Hollywood Has Become Lobbying Juggernaut, Newsmax (Jan. 6, 2014, 8:37 AM), https:// www.newsmax.com/hirsen/hollywood-lobby-sopa-tpp/2014/01/06/id/545405. Kaminski, supra note 33, at 980.

16

Problems of Global Copyright

and omit parts of domestic law that balance IP protection against other values.”37 Kaminski’s analysis shows that the combination of the USTR’s practice of “regulatory paraphrasing” and its closed, asymmetrical modus operandi has given Hollywood “disproportionate input into the trade negotiating process.”38 Moreover, these opportunities for capture are in addition to the usual tools Hollywood has used to capture IP policy: “There is substantial evidence that USTR agency staff receive revolving-door incentives from industry, taking IP industry jobs after USTR employment and coming from IP industry to the USTR.”39 Hollywood’s international strategy has been wildly successful. International copyright is now squarely within the trade regime, and Hollywood does not hesitate to urge the US government to initiate trade sanctions against and withhold trade concessions from foreign countries that do not support Hollywood’s exacting demands.40 The USTR even has the audacity to grade foreign nations on how well they are pleasing US-based entertainment corporations. This annual “report card” is called the Special 301 Report.41

contours of extreme international copyright Given the extent of Hollywood’s capture of legislators and the USTR, we are a long way from the moderate protection provided by the first copyright law in the United States – the Copyright Act of 1790, which provided authors with 14 years of protection, with an option of another 14 years if the author was still living at the conclusion of the first term (tellingly, only 11 percent of authors eligible for the extra 14-year term between 1883 and 1964 took advantage of it).42 Fast-forward to the present, and the leading multilateral agreement regulating IP laws, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), mandates a minimum term of the life of the author plus 50 years after her death.43 While the 1790 Act protected only against reproductions of books, maps, and charts, TRIPS demands that signatory countries provide protection to “anything basically reduced to a tangible form.”44 37 38 39 40

41

42

43

44

Id. at 978. Id. at 980. Id. at 988. Peter Drahos, Developing Countries and International Intellectual Property Standard-Setting (Commission on Intellectual Property Rights, Study Paper No. 8, 2001). Special 301, Office of the United States Trade Representative, https://ustr.gov/issueareas/intellectual-property/Special-301 (last visited Jan. 28, 2020). Copyright Act of 1790, Copyright.gov, https://www.copyright.gov/about/1790-copyright-act .html (last visited Jan. 28, 2020) and William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 212 (2003). Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm. Lawrence Lessig, The Creative Commons, 65 Mont. L. Rev. 1, 5 (2004).

Contours of Extreme International Copyright

17

Previously in the United States, creators had to register their works with the Copyright Office in order to obtain copyright protection, something most authors did not bother doing. In the United States between 1790 and 1800, only 3 percent of authors registered for protection.45 Now any creation that is minimally creative (and captured in a tangible medium of expression) is protected automatically without the need for the author to take any action whatsoever, even if the author does not want copyright protection.46 Adopted in 1994 by the General Agreement on Tariffs and Trade (GATT) – later to become the World Trade Organization (WTO) – TRIPS incorporates the Berne Convention and other treaties’ protection standards, along with providing new minimum standards of protection. Importantly, TRIPS enables countries to seek enforcement of the IP provisions through the WTO’s dispute settlement process, which allows for a successful complainant to a WTO panel to initiate sanctions against the noncompliant country. Daniel Gervais argues, “The reality is that the ability of governments to take measures to adapt intellectual property and other rules to their own situation and changing technological dynamics is indeed increasingly constrained by norms and standards contained in trade agreements. First among them for most nations is the TRIPS Agreement.”47 Gervais continues, “The rule that perhaps most directly constrains the ability of policy makers to craft a more properly delineated copyright right – or in designing new exceptions and limitations – is known as the three-step test.”48 He states, Although it exists in various versions, the test, as expressed in the WTO TRIPS Agreement, provides that WTO members (that is, most countries around the world) must confine limitations or exceptions to exclusive rights to (1) certain special cases which (2) do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the right holder. As one can readily see, this looks like language invented by and for lawyers.49

45

46

William J. Maher, Copyright Term, Retrospective Extension, and the Copyright Law of 1790 in Historical Context, 49 J. Copyright Soc’y U.S.A. 1021, 1023–24 (2002). See generally Michael W. Carroll, A Realist Approach to Copyright Law’s Formalities, 28 Berkeley Tech. L.J. 1511, 1519 (2013). Carroll states, WIPO’s Development Agenda supplies reasons for renewed attention to the beneficial functions that public copyright formalities perform. Specifically, with regard to registration, these include providing public means for: (1) asserting claims of authorship and ownership, (2) identifying works of authorship, (3) delimiting the public domain by supplying information relevant to the expiration of copyright, and (4) mapping creative activity within a territory.

47

48 49

Daniel J. Gervais, (Re)Structuring Copyright: A Comprehensive Path to International Copyright Reform 59 (2017). Id. Id.

18

Problems of Global Copyright

Big Copyright did not rest on its laurels after TRIPS.50 In fact, a generic term for all new negotiations is the moniker TRIPS-plus, international instruments that either enhance the IP provisions under TRIPS or take away options provided by TRIPS. While countries were “encouraged” to become signatories to a few multilateral agreements quickly after TRIPs, including the 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances and Phonograms Treaty (WPPT), the use of bilateral free-trade agreements to push for more IP protection has increased. While some see this as another mechanism to obtain more IP protection, others believe the proliferation of bilateral trade deals has “added new voices to the debate on intellectual property norm setting and considerably changed the landscape compared to the previous decades.”51 There have been some encouraging signs, such as the United States abandoning the TPP (though other countries have pushed it forward in its new form: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership [CPTPP]). Nevertheless, Big Copyright continues to strive for more protection, and there are few signs that the existing extreme protection will be paired back.52 There is historical evidence suggesting that, without the pressure, developing countries would not maintain such extreme copyright. It was particularly galling for newly independent countries to contemplate being forced to pay for cultural materials assembled out of the exploitation of colonialism itself. Goldstein states, “Nations newly independent of European colonial powers – India was the most vocal – chafed at being held to the standards of treaties to which their former masters had committed them. They eventually threatened to defect from both Berne and the Universal Copyright Convention.”53 He provides another example: The preamble to recommendations adopted at a 1963 African Study Meeting on Copyright in Brazzaville, Congo, declared that “international copyright conventions are designed, in their present form, to meet the needs of countries which are exporters of intellectual works. These conventions, if they are to be generally and universally applied, require review and reexamination in the light of the specific needs of the African continent.” The insurgents shrewdly focused their demands on the most compelling social claim: unfettered use of copyrighted works for educational and scholarly purposes.54

50

51

52

53 54

For a more optimistic perspective, see Doris Estelle Long, Deviant Globalization and the Rise of Diverse Interests in the Multilateral Protection of Intellectual Property, in Diversity in Intellectual Property: Identities, Interests, and Intersections 58 (Irene Calboli & Srividhya Ragavan eds., 2015). See also Ghosh, supra note 2. Irene Calboli & Srividhya Ragavan, Introduction: Recognizing Diversity in Intellectual Property, in Diversity in Intellectual Property: Identities, Interests, and Intersections 5 (Irene Calboli & Srividhya Ragavan eds., 2015). What Is the CPTPP?, Government of Canada (last updated Aug. 8, 2019), https://www .international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/ index.aspx?lang=eng. Goldstein, supra note 24, at 153–54. Id.

Downloaded from https://www.cambridge.org/core. University of New England, on 06 Nov 2020 at 07:45:01, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108676298.002

Contours of Extreme International Copyright

19

Further, besides the recent Marrakesh agreement setting “mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled,” the most famous example of attempting to provide developing countries with some flexibility in lowering their copyright standards – the Stockholm Protocol Regarding Developing Countries – failed.55 What does this mean for culture? Almost everything created now is locked down for a ridiculously long time. Copyright has gotten so extreme, Timothy Lee notes, “even some content creators aren’t keen on ever-longer copyright terms.”56 Quoting an Authors Guild spokeswoman, Lee writes, “The Authors Guild, for example, ‘does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works.’”57 Furthermore, copyright’s reach goes beyond its own historical and subject boundaries to protect works by restricting the use of certain technology. For example, the 1996 WCT, which entered into force in 2002, mandates that contracting nations “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention.”58 Plus, penalties for copyright infringement are draconian – for example, the maximum statutory damage award of $150,000 in the United States far exceeds financial penalties for illicit action that can kill others, such as drunk driving. Such a penalty is not simply unjust relative to other penalties the law provides; it is an effective means of incentivizing entertainment multinationals while intimidating individual artists, one of many ways that extreme copyright restricts free speech and hurts the vibrancy of cultures.59 As Lawrence Lessig argues, “in a world that threatens $150,000 for a single willful infringement of a copyright, . . . the astonishingly broad regulations that pass under the name ‘copyright’ silence speech and

55

56

57 58

59

Id. at 154–55 and Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, WIPO, https://www.wipo.int/treaties/en/ ip/marrakesh (last visited Aug. 30, 2019). For efforts of the Access to Knowledge (A2K) movement, see Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L.J. 804 (2008). Timothy B. Lee, Why Mickey Mouse’s 1998 Copyright Extension Probably Won’t Happen Again, Ars Technica (Jan. 8, 2018, 8:00 AM), https://arstechnica.com/tech-policy/2018/01/ hollywood-says-its-not-planning-another-copyright-extension-push. Id. WIPO Copyright Treaty art. 11, Dec. 20, 1996, WIPO, https://www.wipo.int/treaties/en/text.jsp? file_id=295166. Within the US context, see also Lydia Pallas Loren, Deterring Abuse of the Copyright Takedown Regime by Taking Misrepresentation Claims Seriously, 46 Wake Forest L. Rev. 745 (2011). See generally Mark Bartholomew & John Tehranian, An Intersystemic View of Intellectual Property and Free Speech, 81 George Washington L. Rev. 1 (2013).

20

Problems of Global Copyright

creativity. And in that world, it takes a studied blindness for people to continue to believe they live in a culture that is free.”60 Disincentives against expression go beyond catastrophic damage awards. Extreme copyright limits artistic freedom through overly restrictive practices against one artist borrowing from other artists, a process that is widely acknowledged as critical to the creative method.61 This occurs in at least two ways. First, there is a dearth of material in the public domain to sample from. Second, the fair use doctrine, which touches on borrowing from works currently under copyright, does not clearly articulate what constitutes an actual infringement. The adage is: One does not know a use is fair until after a courtroom ruling has said as much. Artists are reticent to borrow when the threat of a lawsuit hangs over them.62 Art is an important building block of culture. Copyright harms society when it stifles the free speech of individual artists by restricting their ability to build from cultural memes. The more copyright limits and discourages artists, the more it empowers entertainment corporations to coin our vocabulary, frame our perceptions and aspirations, and shape our values.63 Copyright reform matters because, more than ever before, we are allowing entities focused solely on profit to define, inadvertently or purposefully, what we should pay attention to personally and politically.64 If you capture Congress, there is no existential need to provide convincing normative justifications for your actions. As Litman notes, One can greatly overstate the influence that underlying principles can exercise over the enactment and interpretation of the nitty-gritty provisions of substantive law. 60 61

62

63

64

Lawrence Lessig, Free Culture: The Nature and Future of Creativity 187 (2004). See generally James Boyle, The Public Domain: Enclosing the Commons of the Mind (2010) and Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2001). See generally Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 Cardozo Arts & Entertainment L.J. 391 (2005); Lydia Pallas Loren, Fair Use: An Affirmative Defense, 90 Washington L. Rev. 685 (2015); Patricia Aufderheide & Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (2011); and Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549 (2008). See generally Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 Tex. L. Rev. 1853 (1991); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent. L.J. 215 (1996); Neil W. Netanel, Copyright and the First Amendment; What Eldred Misses – And Portends, in Copyright and Free Speech: Comparative and International Analyses (Jonathan Griffiths & Uma Suthersanen eds., 2005); and Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006). See generally Shubha Ghosh, Deprivatizing Copyright, 54 Case W. Res. L. Rev. 387 (2003) and Carys J. Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (2011).

What Art Is

21

In the ongoing negotiations among industry representatives, normative arguments about the nature of copyright show up as rhetorical flourishes, but, typically, change nobody’s mind.65

The opposite is often the case for those on the outside looking in. Reformers must use every available tool, not only pointing out the capture but also developing novel strands of intellectual critique and new values or considerations that should be weighed when setting copyright policy.66 We need to move beyond talk of the negative externalities of existing laws to restructuring them from the start with social justice, equality, human rights, and inclusiveness in mind.67 Addressing the richness in IP theories, William Fisher states, “The sought-after response [should] not be, ‘I can’t see any holes in the argument,’ but rather, ‘That rings true to me.’”68 This is the spirit of my proposal of copyright’s arc. While I agree with existing critiques of copyright, my argument is that we need to expand the realm of what is important when we consider the appropriate extent of copyright protection.

what art is Copyright does not protect all forms of art. At the same time, it protects more than art, such as emails and different forms of software.69 As mentioned, copyright provides exclusive rights to original works of authorship.70 This particular formulation comes with a two-part definition of originality. The work has to be original to the author (not copied from another), and it has to be minimally creative (so simply drawing a circle or writing a short phrase would not qualify). I am interested in art in a less legalistic sense than the one relevant to copyright, and I take a broad view of what art is.71 For example, US federal copyright law does 65 66

67

68 69

70 71

Litman, supra note 22, at 77. See generally William Fisher, Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property 168 (Stephen Munzer ed., 2001); Carys J. Craig, Critical Copyright Law and the Politics of “IP,” in Research Handbook on Critical Legal Theory (Emilios Christodoulidis et al. eds., 2019); Bill Ivey, Arts, Inc.: How Greed and Neglect Have Destroyed Our Cultural Rights (2008); and K. J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent. L.J. 339 (1999). See generally Lateef Mtima, Copyright Social Utility and Social Justice Interdependence: A Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship, 112 W. Va. L. Rev. 97 (2009). Fisher, supra note 66, at 199. For a fascinating legal analysis of permissive certificates, instructions for creating art, and how they challenge the nature of art, see Peter Karol, Permissive Certificates: Collectors of Art as Collectors of Permissions, 94 Washington L. Rev. 49 (2019). 17 US Code § 102. This book deals only with artwork. I realize that there are many artistic aspects of code but exclude it from the scope of my argument. For a skeptical analysis of the need to provide copyright protection to software, see Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970). For a more recent re-evaluation of the stance, see Pamela Samuelson, The Uneasy Case for Software Copyrights Revisited, 79 Geo. Wash. L. Rev. 1746 (2010).

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Problems of Global Copyright

not apply to improvised jazz because the expression (the music) is not fixed in a tangible medium – i.e., the work is not recorded. My definition of art is not tied to any legal conception of what artistic expression copyright protects, nor is it tied to common art forms, such as film, novels, and sculpture. I believe that the essence of art – what makes a work original and creative – resides in the attitude and experience of the creator. First, art entails individuals having substantial discretion. For example, a bricklayer who is given discretion to lay bricks in any pattern that she desires, meets this first requirement, as does a law student who, during a final exam, is free to express her answer in essay form. Yet more is required. A second component of art is conscious consideration of the aesthetics of what one is creating. For example, if I scoop up dirt with a shovel and throw it on a pile, I could be doing so for at least two reasons. My purpose could be utilitarian – to dig a hole to plant flowers – or I could be digging to make a point – for example, to communicate the banality or hardship of life or the inevitability of death. If my purpose is expression, and if I am thinking about where to dislodge and throw dirt with an eye to how it would help communicate my message, then I am creating art. Whether or not there is an objective standard of beauty, the individual performing the act of digging is the only person who can definitively state whether the act is one of artistic creation or utility (of course, the act could be both expressive and useful). Under this conception of art, a tremendous amount of human activity could be reframed and experienced as artistic creation if the actor alters her purpose. Continuing the example, if the ditch digger imagines how she can dig the ditch to communicate beauty or a particular message and acts on these thoughts, she is creating art as long as she has the discretion to follow through. This may seem like a parlor trick. It might be, but in an optimistic, inspirational way in the sense that life, in part, is what we make of it. Given the mundane challenges of existence – paying our bills, keeping our jobs, taking care of our children or parents – thinking of our actions in a different light can help. Experiencing activities as aesthetic and bringing something expressive into existence – creating art – exercises the imagination, gives us pleasure, and adds dimension to our lives. This is not to claim that the ditch digger would not enjoy digging a ditch for other reasons. She might appreciate the physical exercise, the calm of the routine, or the sense of accomplishment, without the added joy that artistic creation generates. What is this fulfillment from creation? There are many possible joys, such as reaching others to inspire or challenge them, rebelling against death by leaving our mark on the world, or molding the world to make it more beautiful for others. Creativity and beauty can also be found in helping others, solving mundane problems, and pursing philosophy or science. Art, defined in this way, encompasses not only the classical fine arts and modern forms such as TV but also activities traditionally considered hobbies or crafts, such as gardening or scrapbooking, singing in a family or community choir, and raising a

What Art Is

23

barn. Waving a stick is art if you are conducting an orchestra or otherwise communicating expressively. It would be wonderful if all of us could have jobs that not only allowed but encouraged us to create. Unfortunately, many of us do not. It may sound naive or callous to suggest that those who toil during the day should find time and energy afterward to create. Yet this is exactly what we should aim for – not necessarily every day, but whenever we can squeeze art in – so that, over time, creating becomes central to our lives, no matter where we fall in relationship to economic development.

2 Reducing Copyright in Developing Countries

Because a knowledge of letters is entirely indispensable to a country, it is certain that they should not be indiscriminately taught to everyone. A body which had eyes all over it would be monstrous, and in like fashion so would be a state if all its subjects were learned; one would find little obedience and an excess of pride and presumption. The commerce of letters would drive out that of goods, from which the wealth of the state is derived. —Cardinal Richelieu1

In the spirit of Richelieu, entertainment multinationals seek to increase their wealth by subduing the prospects of the poor in developing countries. Their misguided quest for ever more profit leads them to lobby Congress to exert pressure on poor countries to enact and maintain extreme copyright laws.2 As a result, excessive copyright protections in developing countries suppress education and the adoption of human rights because they make it more expensive to access knowledge and entertainment.3 1

Cardinal Richelieu, The Political Testament of Cardinal Richelieu 14–15 (Henry Bertram Hill trans., University of Wisconsin Press 1961) (1687). Richelieu continues: It would ruin agriculture, the true nourishment of the people, and in time would dry up the source of the soldiery, whose ranks flow more from the crudities of ignorance than from the refinements of knowledge. It would, indeed, fill France with quibblers more suited to the ruination of good families and the upsetting of public order than to doing any good for the country. If learning were profaned by extending it to all kinds of people one would see far more men capable of raising doubts than of resolving them, and many would be better able to oppose the truth than to defend it. It is for this reason that statesmen in a well-run country would wish to have as teachers more masters of mechanic arts than of liberal arts.

2 3

Id. at 15. Throughout this book I will use developing countries and poor countries synonymously. This chapter is based on one of my previously published articles. See generally Martin Skladany, The Revolutionary Influence of Low Enlightenment: Weakening Copyright in Developing Countries to Improve Respect for Human Rights and the Rule of Law, 95 J. Pat. & Trademark Off. Soc’y 285 (2013).

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25

Of course, Big Copyright is not wholly to blame for this subjugation of the poor. Numerous developing country leaders appear to share Richelieu’s sentiment, though they probably have not thought about copyright’s hand in upholding the social order. While Hollywood cares only about its bottom line, dictators are also concerned about preserving the public’s obedience. Keeping the poor uninformed and cut off from the world minimizes the chances that they will aspire to better forms of governance, speak up about the corrupt policies of the political elite, and foment resistance. The corrupt rulers of many developing countries benefit from the status quo, and excessive copyright helps them maintain it. We need to confront Big Copyright and corrupt rulers to encourage them to alter their course on copyright in developing countries.4 A significant weakening of copyright in developing countries would allow for greater circulation of artwork from around the world into developing countries, and, over the long run, exposure to progressive messages would inspire respect for human rights, freedom, equality, and the rule of law.5 A freer flow of Hollywood products is worth exploring because there are so few tools that effectively promote these values that are fundamentally important to development, which, in the view of Joseph Stiglitz, “encompasses not just resources and capital but a transformation of society.”6 After all, the Eastern European Communist era “teaches that nothing is more potent than exposing people to the prosperity and freedoms of the world around them.”7

the forgotten value of entertainment within the law Diverse groups – from access-to-medicine advocates to farmers resisting the licensing of seeds by multinational corporations and to individuals promoting free 4

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Given, for example, the difficulty of finding certain statistics on developing countries, this chapter draws examples from the World Bank’s low-income economies (e.g., Afghanistan and Somalia) and middle-income economies (e.g., Brazil and China) lending groups. My use of the term developing countries will be limited to the 31 countries classified as low income by the World Bank, even though my argument could apply to some lower-middle-income countries. Also, while these 31 developing countries are vastly different, they all share the two central concerns of this chapter – systemic corruption and abuse of human rights. World Bank Country and Lending Groups, World Bank, http://data.worldbank.org/about/country-classifications/ country-and-lending-groups#IDA (last visited June 25, 2019). I am not taking a position as to whether copyright on goods besides artwork is harmful or beneficial to developing countries. Further, my argument to dramatically reduce copyright in developing countries does not touch on other IP rights such as patents and trademarks. Joseph E. Stiglitz, Globalization and Its Discontents 242 (2002). See also Martin Skladany, Buying Our Way Out of Corruption: Performance-Based Incentive Bonuses for Developing Country Politicians and Bureaucrats, 12 Yale Human Rights & Dev. L.J. 160 (2009). Finally, this is not to say that other factors – for example, sound macroeconomic policy – are not also significant to a developing country’s prospects of development. See generally Greg Mills, Why Africa Is Poor (2010). Change in North Korea, Economist, Feb. 9, 2013, at 11.

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software and open licensing under Creative Commons – have banded together to critique current intellectual property laws.8 Their efforts span many areas of IP and touch on the needs of different countries. In 2004, the Access to Knowledge (A2K) movement pressed WIPO to be more responsive to how IP issues affect developing countries. Toward this end many scientists, academics, and nonprofits signed the Geneva Declaration on the Future of the World Intellectual Property Organization, an important precept of which was focusing “more on the needs of developing countries” and also viewing “IP as one of many tools for development – not as an end in itself.”9 The A2K movement quickly followed with a draft Treaty on Access to Knowledge and the Adelphi Charter on Creativity, Innovation and Intellectual Property.10 Activists successfully encouraged WIPO in 2007 to formally establish the WIPO Development Agenda and the Committee on Development and Intellectual Property (CDIP). A notable success was celebrated in 2013, when the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was adopted.11 A major current effort involves having WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) “negotiating international legal instrument(s)” on traditional knowledge (TK), including genetic resources and traditional cultural expressions.12 A proposed WIPO Treaty on Traditional Knowledge “is generating

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12

See generally Access to Knowledge in the Age of Intellectual Property (Gaëlle Krikorian & Amy Kapczynski eds., 2010); Craig Borowiak, Farmers’ Rights: Intellectual Property Regimes and the Struggle over Seeds, 32 Pol. & Soc’y 511 (2004); A Matter of Life and Death: The Role of Patents in Access to Essential Medicines, Me´decins sans Frontie`res (Nov. 9, 2001), https://www.msf.org/matter-life-and-death-role-patents-access-essential-medicines; GNU Operating System, http://www.gnu.org (last visited June 25, 2019); Richard M. Stallman, Free Software, Free Society: Selected Essays of Richard M. Stallman (2002); and Creative Commons, http://creativecommons.org (last visited June 25, 2019). Geneva Declaration on the Future of the World Intellectual Property Organization, Consumer Project on Technology, http://www.cptech.org/ip/wipo/genevadeclaration.html (last visited Jan. 28, 2020). (“On October 4, 2004, the General Assembly of the World Intellectual Property Organization agreed to adopt a proposal offered by Argentina and Brazil, the ‘Proposal for the Establishment of a Development Agenda for WIPO.’”) See also Geneva Declaration on the Future of the World Intellectual Property Organization (Mar. 4, 2005), http://cptech .org/ip/wipo/futureofwipodeclaration.pdf (last visited Jan. 28, 2020) [hereinafter Geneva Declaration]. Treaty on Access to Knowledge (May 9, 2005, draft), http://www.cptech.org/a2k/a2k_ treaty_may9.pdf [hereinafter A2K Treaty] and The RSA Adelphi Charter on Creativity, Innovation and Intellectual Property (Oct. 13, 2005), in Promoting Innovation and Rewarding Creativity: A Balanced Intellectual Property Framework for the Digital Age 4 (Royal Society of Arts ed., 2006) [hereinafter Adelphi Charter]. See generally Danielle M. Conway, The Miracle at Marrakesh: Doing Justice for the Blind and Visually Impaired while Changing the Culture of Norm Setting at WIPO, in Diversity in Intellectual Property: Identities, Interests, and Intersections 35 (Irene Calboli & Srividhya Ragavan eds., 2015). Traditional Knowledge, WIPO, https://www.wipo.int/tk/en (last visited Sept. 17, 2019).

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27

much debate, especially around the issue of the extent to which protecting TK would take away from the public domain.”13 All these efforts should be celebrated, as should Lea Shaver and Caterina Sganga’s vision “that states recognizing the right to take part in cultural life have a legal obligation to ensure that their intellectual property frameworks do not provide excessive protections at the expense of cultural participation.”14 While I applaud these efforts and recognize that there are many groups with varying positions, I am concerned that the value of significantly weakening copyright law so as to maximize the flow of international artwork into developing countries for the benefit of the poor has been relatively neglected. The necessity of access has been fully grasped in patent law with the calls for wider distribution of lifesaving drugs and in copyright law with efforts to increase access to educational materials. Yet the need is arguably as great with entertainment, for freely accessible artwork has the ability, over the long term, to alter how individuals think about human rights, freedom, the rule of law, democracy, and equality and hence to improve how countries fundamentally operate.15 Developing country artwork can provide all these benefits to citizens but often fails in part because there is simply not enough locally produced artwork in certain artistic mediums in some developing countries, and certain artwork created for a large audience cannot reach it. For example, back in the early 2000s, “[m]ore than 40 percent of India [was] media-dark, so TV- and radio-based messages [were] inappropriate methods to reach” a large segment of the population.16 Further, the high production value of US television shows and movies makes them more appealing than local productions. This is not to say that artwork from developing countries is bad; that developing countries do not vary greatly in what messages they convey through their artwork; that all developing countries have identical needs for more progressive artwork; or that all developing country cultural, social, and 13

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Michael Gollin et al., Intellectual Property Social Justice in Action: Public Interest Intellectual Property Advisors, in Intellectual Property, Entrepreneurship and Social Justice 163, 172 (Lateef Mtima ed., 2015). Lea Shaver & Caterina Sganga, The Right to Take Part in Cultural Life: On Copyright and Human Rights, 27 Wis. Int’l L.J. 637, 640 (2010). For other original visions, see Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 1039 (2007) and Margaret Chon, Recasting Intellectual Property in Light of the U.N. Sustainable Development Goals: Toward Global Knowledge Governance, 34 Am. U. Int’l L. Rev. 763–85 (2019). See also The Development Agenda: Global Intellectual Property and Developing Countries (Neil Weinstock Netanel ed., 2008) and Access to Knowledge in Africa: The Role of Copyright (Chris Armstrong et al. eds., 2011). Subsidiary copyright criticisms are similar to critiques of copyright within developed countries and center around how extreme copyright’s scope, breadth, and length have become, to the detriment, for example, of artists being able to borrow from existing works. A Matter of Life and Death, supra note 8, at 1. While this figure has been reduced since the publication of Prahalad’s book, it has not completely disappeared. C.K. Prahalad, The Fortune at the Bottom of the Pyramid 40 (2005).

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political practices are worse than those in developed countries – after all, women hold 61.3 percent of parliamentary seats in South Africa, 53.2 percent in Cuba, and 53.1 percent in Bolivia.17 Rather, it is to suggest that the liberal messages of much of middle-income and developed country art can inspire individuals in developing countries. Beyond the fact that most individuals in poor countries are struggling to survive and hence have little time or resources to devote to creating, “poverty makes it very difficult to think and act in ways that bring about the creative advances meaningful IP participation requires.”18 Stephanie Plamondon Bair states: “A large and growing body of psychological research shows that poverty changes the decision-making of those experiencing it,” in a way that makes intellectual property an “inherently limited . . . mechanism for escaping poverty.”19 Hence, excessive copyright does not do what it is supposed to do in developing countries – provide meaningful incentives to innovate. It has diminished incentive effects on the vast majority of individuals and hence turns into a tool of increased inequality, given that the only individuals in developing countries likely to be motivated by copyright are the elite.

education entertainment Education entertainment is artwork specifically created to change individuals’ behaviors by incorporating educational storylines into entertainment. Education entertainment has typical characters, plots, and settings. Its distinctive feature is that the creators are deliberately attempting to highlight messages with social value. Education entertainment has its roots in psychological social learning theory that believes artwork can educate while simultaneously entertaining.20 Education entertainment is in contrast to “behavior change campaigns” that do not situate important social messages into entertainment but rather explicitly convey the message as a public service announcement. Behavior change campaigns can be effective when done cleverly and with skill, such as in Colmar, France, where I stumbled across the following message spray-painted onto the pavement of a reserved parking spot: “If you take my spot, then take my handicap also.”21 But this is the exception to the rule, as the World Bank notes that most behavior change

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Alex Thornton, These Countries Have the Most Women in Parliament, World Economic Forum (Feb. 12, 2019), https://www.weforum.org/agenda/2019/02/chart-of-the-day-these-coun tries-have-the-most-women-in-parliament (the figures are as of Dec. 1, 2018). Stephanie Plamondon Bair, Impoverished IP , SSRN (Apr. 3, 2019), https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3365290. Id. See generally Albert Bandura, Social Learning Theory (1971). More recently, the number of theories attempting to articulate the social phenomena has multiplied. I do not take a stance on a particular theoretical justification, but I want to convey the encouraging findings. “Vous prenez ma place, prenez aussi mon handicap.”

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campaigns “are unconvincing, lack inspiring narratives, and are communicated through outmoded and uninteresting outlets such as billboards and leaflets.”22 By contrast, the World Bank believes education entertainment “is an unprecedented opportunity . . . to change the lives of billions of people.”23 The World Bank states, “Unlike traditional behavior-change campaigns that convey abstract concepts and can become repetitive quickly, educational narratives are easier to follow and remember than abstract information.”24 It believes that viewers learn by identifying with the characters and noticing their behavior: “Characters in mass media have the power to be role models, inspire audiences to engage in new thinking about ‘what is possible’, and change the perception of what is ‘normal’ and socially acceptable behavior.”25 While I share the World Bank’s optimism about education entertainment, there are few rigorous studies performed in developing countries, though the results are promising. The World Bank says that the evidence is most “thin” in regard to how “to advise the scale up of entertainment media as a development tool across different sectors.”26 It notes, “There is a lot to learn about the best way to maximize the impact and minimize unintended consequences of entertainment media, a powerful tool that is largely untapped for development.”27

beyond education entertainment Henry Brooks Adams once averred, “The difference is slight, to the influence of an author, whether he is read by five hundred readers, or by five hundred thousand; if he can select the five hundred, he reaches the five hundred thousand.”28 This logic does not work in developing countries because the elite – within government, the community, and family – too often are oppressing, or benefiting from the oppression of, the poor. Thus artworks need to reach the 500,000, not just the 500.29 While scholars have long studied prejudice, relatively recent empirical studies begun to emerge with encouraging results.30 One study by Robert Jensen and Emily Oster examined the impact of introducing cable television on the status of women in rural India. During a three-year period (2001–2003), cable television was introduced 22

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Entertainment Education, The World Bank (last updated Apr. 5, 2018), https://www.worldbank .org/en/research/dime/brief/edu-tainment. Id. Id. Id. Id. Id. Henry Brooks Adams, The Education of Henry Adams 259 (Houghton Mifflin, 1918) (1907). The same point can be made for the developed countries that have historically encouraged the imposition of extreme copyright and also benefit from the exploitation of developing countries and the propping up of dictatorships in a Cold War context. As discussed later, I believe this choice to have been misguided. See generally Hadley Cantril & Gordon W. Allport, The Psychology of Radio (1935).

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into 21 of the 180 sample villages spread over five Indian states.31 Each year researchers surveyed women in the villages to compare “changes in gender attitudes and behaviors between survey rounds across villages based on whether (and when) they added cable television.”32 The study found that cable television has significant positive effects on the status of women. Once cable television is brought into a village, “there are significant changes in gender attitudes: women are less likely to report that it is acceptable for a husband to beat his wife, and less likely to express a preference for sons.”33 Jensen and Oster also found that “[b]ehaviors traditionally associated with women’s status also change: women report increased autonomy (for example, the ability to go out without permission and to participate in household decisionmaking) and lower fertility.”34 The magnitude of the effects is “quite large,” and the “effects happen quickly, with observable impacts in the first year following cable introduction.”35 Remarkably, the Tamil Nadu government began “a program to provide free color televisions to 7.5 million households with the goal of ensuring every household has one.”36 This study did not differentiate between the effects of developing, middle-income, and developed country artwork because both domestic and international programs were shown over the course of the study.37 While follow-on studies attempting to examine the different consequences of exposure to developing, middle-income, and developed country artwork would be quite informative, Jensen and Oster’s results are especially hopeful. The message is that more content from everywhere is needed. The jump to the need to reduce copyright to enable distribution is a short one. Given the international development community’s newfound interest in education entertainment, they might appreciate not only that all content, not just tailored-made material, can help the oppressed but also that copyright needs to get out of the way. The field is new. Few studies have looked at the effects on individuals of introducing entertainment to media-dark regions or increasing the amount of 31

32 33 34 35 36 37

Robert Jensen & Emily Oster, The Power of TV: Cable Television and Women’s Status in India, 124 Q.J. Econ. 1057, 1059 (2009). Id. Id. Id. Id. Id. at 1060. Id. at 1062. Demetrios Papademetriou, head of the Migration Policy Institute in Washington, DC, argues that [in] such “knowledge transfers, the social and political remittances” are very important. He and other migration watchers are turning their attention from the flow of money to the flow of ideas. It is hard to prove anything, but there are cases where large-scale return migration has coincided with (and perhaps boosted) political and economic change. The Aid Workers Who Really Help, Economist, Oct. 10, 2009, at 62.

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exposure to media in developing countries in general relative to work on media exposure within developed countries. As Elizabeth Levy Paluck states, as of the late 2000s, “In the entire literature, only 10 field experiments have been conducted on media’s impact on prejudice – all involving television programs played in classroom settings for North American children.”38 Consequently, it is unknown how unlimited the potential for inspiration is – for example, how it will motivate individuals. One study intimates that the reach might be vast. Eliana La Ferrara, Alberto Chong, and Suzanne Duryea studied the effects on fertility of telenovelas (soap operas) aired on the Brazilian channel Rede Globo: In Brazil, a Catholic country, the state has carefully stayed away from encouraging family planning. However, television is very popular . . .. From the 1970s through the 1990s, access to the Rede Globo channel expanded dramatically, and with it the viewership of the telenovelas. At the telenovelas’ peak popularity in the 1980s, the characters in the soaps tended to be very different from the average Brazilian in terms of both class and social attitudes: Whereas the average Brazilian woman had almost six children in 1970, in the soap operas most female characters under the age of fifty had none, and the rest had one. Right after soaps became available in an area, the number of births would drop sharply; moreover, women who had children in those areas named their children after the main characters in the soap.39

In a review of the field as of 2016, Eliana La Ferrara states, “mass media have the power to convey not only political information, but also values and modes of behavior that generate profound changes in development outcomes. These outcomes include family preferences and health, education and occupational choice, gender norms and social capital.”40 La Ferrara believes education entertainment can be “an effective way of reaching a vast number of people at relatively low cost,” yet “many examples of [positive] impact come from commercial television or radio programs that do not have explicit educational purposes.”41 I do not mean to imply that all developing country elite would be convinced to govern well or that prejudice would be erased if they are introduced to progressive messages in artwork. Studies show that exposure to entertainment from around the world changes the minds of the oppressed in developing countries, not necessarily the oppressors. Yet evidence is emerging that entertainment can change the 38

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Elizabeth Levy Paluck, Reducing Intergroup Prejudice and Conflict Using the Media: A Field Experiment in Rwanda, 96 J. Personality & Soc. Psychol. 574, 576 (2009). Abhijit V. Banerjee & Esther Duflo, Poor Economics: A Radical Rethinking of the Way to Fight Global Poverty 118 (2011) (citing Eliana La Ferrara, Alberto Chong, & Suzanne Duryea, Soap Operas and Fertility: Evidence from Brazil (Bureau for Research & Economic Analysis of Development, Working Paper No. 172, 2008)). Eliana La Ferrara, Mass Media and Social Change: Can We Use Television to Fight Poverty?, 14 J. European Eco. Assoc. 791, 827 (2016). Id.

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behavior of the oppressors for the good, even if it cannot immediately alter their values.42 In the next chapter, I present encouraging research that even if the oppressors’ values do not change, their perception of what is socially acceptable can change, as can their actions. Regardless of whether the oppressors change their values, the amount of good that copyright reform could accomplish by getting the oppressed to believe in themselves is inestimable. While I support the creation of bespoke education entertainment, my argument is that we need to appreciate how copyright reform can unleash all entertainment for the same purpose – to inspire the poor and increase belief in human rights.

why good for developing countries Certainly, the citizens of developing countries recognize the value of connection and information and seek access to global media whenever possible – though only half the world’s population is online.43 In developing countries, some poor households have televisions: We asked Oucha Mbarbk, a man we met in a remote village in Morocco, what he would do if he had more money. He said he would buy more food. Then we asked him what he would do if he had even more money. He said he would buy bettertasting food. We were starting to feel very bad for him and his family, when we noticed a television, a parabolic antenna, and a DVD player in the room where we were sitting. We asked him why he had bought all these things if he felt the family did not have enough to eat. He laughed, and said, “Oh, but television is more important than food!”44

It is not unrealistic to think that international artwork could positively influence developing country perceptions over the long run. Friedrich Schiller believed that only art and aesthetic education could enable us to attain our humanity.45 The English tradition links art with liberal ideals that result in individual and social wellbeing, while Marxist theory holds that art plays a role in the political transformation of society.46 Even accidental and ephemeral experiences with international artwork have caused profound changes for individuals. For example: A North Korean maritime official was on a boat on the Yellow Sea in the mid-1990s when the radio accidentally picked up a South Korean broadcast. The program was a situation comedy that featured two young women fighting over a parking space at 42 43

44 45

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See generally Paluck, supra note 38. The Second Half of Humanity Is Joining the Internet, Economist, June 8, 2019, https://www .economist.com/leaders/2019/06/08/the-second-half-of-humanity-is-joining-the-internet. Banerjee & Duflo, supra note 39, at 36. Friedrich Schiller, On the Aesthetic Education of Man (Reginald Snell trans., Dover Books on W. Phil. 2004) (1794). See F.R. Leavis, Valuation in Criticism and Other Essays (G. Singh ed., 1986).

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an apartment complex. He couldn’t grasp the concept of a place with so many cars that there was no room to park them. Although he was in his late thirties and fairly high-ranking, he had never known anyone who owned a private car – and certainly not young women. He assumed the radio program was a parody, but after a few days of mulling it over, it struck him that yes, there must be that many cars in South Korea. He defected a few years later.47

The power of this one-off exposure to a better life illustrates how a large number of individuals were apparently inspired to emigrate by television shows like Dallas and Dynasty. Millions emigrate from developing countries because they believe that life can be better somewhere else.48 For some of these individuals, this belief stems at least partially from their exposure to foreign copyrighted works that convey freedom and opportunity.49 Artwork encouraging such dramatic changes can touch almost any social practice. The number of practical ways to change values is limited. Moreover, improving respect for human rights, freedom, equality, and justice requires enlightened leadership. For example, raising a child is one of the most powerful ways to instill values, yet parents who are not respectful of certain human rights make the family environment an unlikely place to engender belief in humanism. While kids can alter their parents’ views, widespread change cannot be anticipated on that basis. Formal education for youth is a powerful tool against repressive viewpoints, yet it cannot be expected to do all the work in getting people to appreciate, for example, freedom for all members of society. It generally targets a subset of the population (youth), requires many thousands or hundreds of thousands of enlightened teachers to demonstrate the value of concepts like human rights, and can take years or generations to bear fruit. These are not criticisms of education as a means of instilling respect for freedom, human rights, and justice, but rather acknowledgments of how difficult the task is and how implementing only one policy on its own will likely be inadequate. Another force for change is the work of civic organizations, yet in many developing countries such institutions are actively repressed and must fight for survival on the margins of society. They are also not immune from propagating illiberal values. Moreover, while governments themselves can theoretically “promote access to knowledge in many different ways besides IP laws – through regulation and deregulation, through government procurement policies that 47 48

49

Barbara Demick, Nothing to Envy: Ordinary Lives in North Korea 215 (2009). While we cannot be certain of the exact number of individuals who fit this case, the International Organization for Migration estimates that 214 million individuals live outside their country of birth. Migration Facts and Figures, International Organization for Migration (Mar. 10, 2015), https://www.iom.int/infographics/migration-facts-and-figures. Others estimate the number to be over 300 million individuals. This is not to claim that democracy is perfect, but (in the spirit of Churchill) it is the best system that we have found.

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encourage private actors to produce knowledge and information goods, and through the government’s own provisioning of information, knowledge and education” – developing country governments often either do not have the capacity to implement sophisticated programs effectively or do not have the best interests of their citizens at heart.50 The remaining realistic source of hope is giving developing country individuals greater access to international artwork to broaden understanding of the practical and ethical need for liberal values. Such a policy is easier to implement than getting hundreds of thousands of teachers to agree to teach liberal precepts, and it targets adults as well as youth. Ideally, a policy of near open access to international artwork would be implemented simultaneously with educational and other policies, yet even on its own it can be a positive transformative force. Further, international artwork can more easily evade the censors that restrict a developing country’s civil society organizations and media, in part because of electronic storage and transmission and in part because such artwork expresses the values of human rights, equality, and freedom, whether explicitly or in the background, without directly criticizing the failures of the developing country’s regime. By contrast, homegrown artists who openly champion reform are often prevented from reaching the local audience. For example, a recently written book about John Githongo, a Kenyan whistle-blower, “although not officially banned” in Kenya, is difficult to find at Kenyan booksellers because “many fear the consequences of selling a book that exposes corruption in the Kenyan government.”51 Any tool we can muster to improve governance should be considered, given, as Ngozi Okonjo-Iweala states, “In most developing countries and particularly in Africa, institutions are weak or nonexistent, which allows corruption to thrive. Fighting corruption must be about having the courage and staying power to build those necessary institutions, processes, and systems that take a long time to implement.”52 Given that so much is riding on expanding access to international artwork in developing countries, we have to ask ourselves if such artwork is actually better at promoting liberal values than its counterpart in developing countries. It is less likely that a country that teaches 11 percent of its girls to read, like Niger, will create art and entertainment that empowers women by portraying strong, independent female protagonists, as in the US television series Veronica Mars.53 Niger is far from unique – the female literacy rate is 16 percent in South Sudan and 24 percent in 50

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Jack Balkin, What Is Access to Knowledge?, Balkinization (Apr. 21, 2006, 7:05 PM), http:// balkin.blogspot.com/2006/04/what-is-access-to-knowledge.html. Rebecca Hamilton, Podcast: It’s Our Turn to Read, Rebecca Hamilton (June 15, 2009), http:// bechamilton.com/?p=769. Hamilton describes a “civil society response to the ‘informal ban’ of Michela Wrong’s book It’s Our Turn to Eat: The Story of a Kenyan Whistleblower.” Ngozi Okonjo-Iweala, Fighting Corruption Is Dangerous 125–28 (2018). The World Factbook. Africa: Niger, US Central Intelligence Agency, https://www.cia.gov/ library/publications/the-world-factbook/geos/ng.html (last visited June 25, 2019).

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Afghanistan.54 Furthermore, the male literacy rate in these three countries is 16 to 27 percent higher than the female literacy rate.55 In Yemen, the literacy rate among men is over 30 percent higher than the rate among women.56 There is no difference between the male and female literacy rates in Canada, Germany, and Singapore, which all have a literate population that exceeds 99 percent.57 While a lack of disparity between female and male literacy rates does not guarantee enlightened equality, significant disparities do not augur well. The power of copyrighted works that espouse liberal values is also felt and can make a positive contribution in middle-income and developed countries. Mainstream television shows in developed countries have featured characters whose traits and behaviors are not widely accepted by the public yet should be. The very popularity of such shows testifies to their ability to gain acceptance for marginalized groups. While viewers know that television characters are fictional, an intimate and ongoing engagement with fictional lives gives them a chance to empathize with people they might avoid, consider strange, or rarely encounter in real life. Over time, it would be surprising if no viewers came to realize that their prejudices toward certain individuals – such as the LGBTQ+ community or working moms – were unfounded.58 Additionally, middle-income and developed country artwork has often become more liberal over time. Even many characters on television shows positively evolve – for example, Major Margaret Houlihan on M*A*S*H was transformed over 11 seasons from a woman whose life revolved around men into a more threedimensional feminist determined to pursue her career. International artwork can have positive effects on individuals across the world. It can transform perceptions and promote liberal values in different ways, most notably by disavowing prejudice, conveying information, fighting tyranny, and inspiring idea creation.

Disavowing Prejudice Tolstoy felt not only that artwork needs to convey the value of equality and unity but that the purpose of art is communication or discussion of such ethical and religious 54

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The World Factbook. Africa: South Sudan, US Central Intelligence Agency, https://www .cia.gov/library/publications/the-world-factbook/geos/od.html (last visited June 25, 2019); The World Factbook, Afghanistan, US Central Intelligence Agency, https://www.cia.gov/ library/publications/the-world-factbook/geos/af.html (last visited June 25, 2019). The World Factbook, supra notes 50 and 51. The World Factbook. Middle East: Yemen, US Central Intelligence Agency, https://www .cia.gov/library/publications/the-world-factbook/geos/ym.html (last visited June 25, 2019). See generally The World Factbook, US Central Intelligence Agency, https://www.cia.gov/ library/publications/the-world-factbook/ (last visited June 25, 2019). For example, the portrayal of homosexual characters on the television show Will & Grace likely positively influenced some people’s perceptions of homosexuality. Will & Grace (NBC television broadcast 1998–2006 & 2017–2019).

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considerations.59 While art can play many positive roles simultaneously, it is clear that art can cause people to question their prejudices. Over time, doubts can lead individuals to repudiate intolerance.60 This acceptance of others occurs because of at least four factors. First, art can help individuals who hold prejudices come to terms intellectually with the fact that discrimination against and maltreatment of others cannot be intellectually justified. This is because art involves “the reader himself in the moral life, inviting him to put his own motives under examination.”61 There are no philosophical guidelines for how to ethically oppress others because the entire enterprise is repugnant, while discourse on how we should act properly is full of ideas like treating others as we would like to be treated, respecting others as ends in themselves rather than using them as means to an end, protecting individual autonomy and scope for action, etc. Second, increased exposure to artwork that either explicitly or subtly conveys liberal values can lead those with prejudiced beliefs to begin to sympathize with the oppressed on an emotional level.62 Consuming art can cause individuals to see the world through the eyes of others, and hence the “aesthetic experience fosters mutual sympathy and understanding.”63 Third, whether on an intellectual or emotional basis, or both, art can help oppressors come to understand that neither the oppressed nor the oppressor can be free. Hegel viewed even the master in a master–slave relationship to be held captive and stunted by the structurally unjust relationship.64 Bakunin articulated a similar vision: “I am not myself free or human until or unless I recognize the freedom and humanity of all my fellowmen . . .. The freedom of other men, far from negating or limiting my freedom, is, on the contrary, its necessary premise and confirmation.”65 59 60 61

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Leo Tolstoy, What Is Art? (A. Maude trans., Ulan Press 2012) (1896). Stephen Davies, The Philosophy of Art 214 (2006). Lionel Trilling, The Liberal Imagination: Essays on Literature and Society 215 (1953). Collingwood had a similar yet more limited view, claiming that art enables selfknowledge for both individuals and societies. R.G. Collingwood, The Principles of Art (1938). For example, some developed country artwork engages in “behavior placement” – subtly incorporating good behavior like green-friendly practices into the background fabric of television shows or movies – because, as NBCUniversal Chief Executive Jeff Zucker pointed out, “People don’t want to be hit over the head with it.” Amy Chozick, What Your TV Is Telling You to Do: NBC Universal’s Shows Are Sending Viewers Signals to Recycle, Exercise and Eat Right. Why?, Wall St. J. (Apr. 7, 2010, 12:01 AM), http://online.wsj.com/article/ SB10001424052702304364904575166581279549318.html. See Monroe C. Beardsley, Aesthetics: Problems in the Philosophy of Criticism 575 (2d ed. 1981). Georg Wilhelm Friedrich Hegel, Phenomenology of Spirit 111 (A.V. Miller trans., Oxford University Press 1979) (1807). Mikhail Aleksandrovich Bakunin, Bakunin on Anarchism 237 (Sam Dolgoff ed. & trans., Black Rose Books 2002) (1871).

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Fourth, art can help raise the consciousness of oppressors by demonstrating the advantages of a more liberal culture and society. For example, a documentary video, the argument or plot of a fictional work, or subtle signs of prosperity in an image celebrating individual freedom can show or imply that establishing the rule of law and good governance can lead to sustained and robust economic growth. The wealthy in developing countries can begin to understand that they would be well positioned to benefit from such a transformation and to actively encourage it. Furthermore, despite their wealth, the rich in developing country cities cannot buy valued goods like clean air, which could be a major benefit of a well-governed country.

Conveying Information An important component of promoting cultural and social justice is education, whether formal or informal.66 Art can educate by dispelling myths and disseminating facts. This is critical because myths can have deadly consequences: “In Africa, the Andes, and elsewhere, people in isolated villages still believe that if a child has diarrhoea she should not be given water, because they believe that the system is trying to ‘expel water.’”67 Cultural superstitions can also contribute to oppression and the spread of disease: “Many people believe that sex with a virgin can cure AIDS.”68 Alarming examples like these remind us that we must use every weapon in our arsenal to increase the flow of information among the poor. Mistaken beliefs and misapprehension of facts can, over the long term, be reduced by opening developing countries to more international artwork, just as violations of human rights, equality, and justice can. Education through exposure to art can be instrumental in building people’s understanding of a society’s or country’s failings and can provide at least partial answers to how to address them. International artwork allows developing country individuals to learn tremendous amounts of information. With regard to international relations and public policy, it can teach them about the historical struggle of individuals in other countries and how successful or ineffective policies have been when attempted abroad. If freely accessible, it can reduce misinformation and ignorance that reinforces oppressive cultural and institutional practices. It can promote transparency and accountability and, in so doing, encourage the support of developing country artwork that does the same. Education nourishes the lifeblood of a nation. As Thomas Jefferson wrote, “I know no safe depository of the ultimate powers of the society, but the people 66

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Art can also educate individuals about certain approaches to or perspectives on learning. See Elliot W. Eisner, The Arts and the Creation of Mind (2002). Stephen C. Smith, Ending Global Poverty: A Guide to What Works 71 (2005). Id. at 33.

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themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”69 Fighting Tyranny in Developing Countries Oppression aims to mentally and physically beat down individuals into accepting their subjugation. As Hannah Arendt suggested, “Thought . . . is still possible, and no doubt actual, wherever men live under the conditions of political freedom. Unfortunately . . . no other human capacity is so vulnerable, and it is in fact far easier to act under conditions of tyranny than it is to think.”70 While some citizens may never succumb, those who do need to hear voices that counter the oppressors’ propaganda – voices that help them recall what was lost, fend off thundering dehumanization, see that their hardships are experienced by others, aspire to persevere, question deference to illegitimate authority, and strengthen their resolve to challenge injustice.71 The oppressed can find meaning in their fight against tyranny if messages of hope and resistance reach them. Ideally, we should encourage the spread of more international artwork in developing countries, but such a policy becomes arguably even more important in politically repressive countries where liberal policies are being suppressed by the full brunt of political power.72 Such scenarios are sadly not rare: there are 50 currently ruling dictators who “think nothing of hacking off criminals’ limbs, gassing innocent kids and even eating their rivals.”73 Freedom House in 2018 “recorded the 13th consecutive year of decline in global freedom.”74 While a neutral position (as opposed to aggressive maximal copyright promotion) or transparent advocacy for the significant reduction of copyright will be the best policy in democratic developing countries, we should actively encourage the spread of middle-income and developed country copyrighted material in every closed-off, 69

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Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in 15 The Writings of Thomas Jefferson 276 (Albert Ellery Bergh ed., 1905). Hannah Arendt, The Human Condition 324 (1958). Ellen Dissanayake, Homo Aestheticus: Where Art Comes from and Why 46 (1992) and Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education 10 (1997). Generally, the more repressive a developing country, the more urgent the need to increase the availability of international art there. Corey Charlton, Annual List Ranks the World’s Most Brutal and Notorious Regime Leaders, news corp Australia (Mar. 30, 2018, 11:05 AM), https://www.news.com.au/finance/work/ leaders/annual-list-ranks-the-worlds-most-brutal-and-notorious-regime-leaders/news-story/b5df3a fc9723862463f3813d3196398f (which takes Freedom House’s 2018 annual report that designates 49 countries as “not free” and equates such classification with dictatorship). See also Freedom House’s 2019 report, which designates 50 countries as “not free.” Freedom House, Freedom in the World 2019: Democracy in Retreat 5 (2019), https://freedomhouse.org/sites/default/ files/ABRIDGED_FH_FITW_2019_Report_FINAL.pdf. Freedom House, supra note 73, at 1.

Why Good for Developing Countries

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repressive developing country run by a dictator, regardless of the dictator’s wishes.75 The need for and effectiveness of such encouragement are indicated by the fact that repressive regimes are genuinely fearful of their citizens being exposed to liberal values and the hope they bring. Barbara Demick notes: The North Korean government accused the United States and South Korea of sending in books and DVDs as part of a covert action to topple the regime. DVD salesmen were arrested and sometimes executed for treason. Members of the Workers’ Party delivered lectures warning people against the dangers of foreign culture: “Our enemies are using these specially made materials to beautify the world of imperialism and to spread their utterly rotten, bourgeois lifestyles. If we allow ourselves to be affected by these unusual materials, our revolutionary mindset and class awareness will be paralyzed and our absolute idolization for the Marshal [Kim Il-sung] will disappear.”76

The North Korean government has reason to worry: the flow of information from China and from a thumb drive drop organized by Human Rights Foundation has already made the population more skeptical of its propaganda.77 The potential benefits of increasing the amount of international artwork available to developing country individuals are, of course, tempered if a despot refuses to let the artwork into the country. Yet most developing countries, besides North Korea, do not have the bureaucratic organization or focused resolve to stop the flow of entertainment. Most dictators are busy accumulating more personal wealth and reinforcing their support networks. Generally, dictators will consider using security officers to stamp out future opposition political candidates more readily than to silence critics who happen to be international artists. Yet particularly pointed criticism of dictators by well-known domestic artists might still invite intimidation, imprisonment, or torture. Furthermore, any artwork that speaks in general or veiled terms will almost always circulate without censorship – i.e., all international work since it is not tailored to the particular political circumstances of a developing country. Most developing countries are poor in part because the state does not function well. While dysfunction is detrimental to helping the poor get health care and education, it can provide breathing space for art to help inspire citizens to fight a tyrannical leader. Inspiring Idea Creation As Dostoevsky said, “Neither man nor nation can exist without a sublime idea.”78 Art has the power to stimulate creative thinking. It can open lines of inquiry that inspire 75

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For example, this could possibly entail “turn[ing] a blind eye to the smuggling networks and the traders” who import media and technology. Change in North Korea, supra note 7. Demick, supra note 47, at 214. See generally Suki Kim, Without You, There Is No Us: Undercover among the Sons of North Korea’s Elite (2015). Fyodor Dostoyevsky, The Diary of a Writer 540 (Boris Brasol trans., 1979) (1873–81).

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individuals to come up with new ideas and innovative practical proposals – discoveries they would not have made without it. Exposure to middle-income and developed country art can provide intellectual stimulus and build political support for freedom and democracy, which also help individuals generate new ideas: “The genius of a democratic people is not only shown by the great number of words they bring into use, but also by the nature of the ideas these new words represent.”79 This idea is similar to theories as to why cities are hotbeds of idea generation and business activity.80 Over time, exposure to art that directly or indirectly champions equality, freedom, and human rights will positively change some individuals’ perceptions on these fundamental issues. As William Easterly suggests, such recognition of liberal and democratic values “eventually leads to their realization; lack of recognition continues the subjugation of the poor.”81

piracy does not solve the problem In the eyes of developed country citizens, illegally obtained copyrighted artwork may not appear to cost much in many foreign countries – for example, pirated DVDs of Hollywood movies cost roughly $1 in China.82 Nevertheless, when 736 million people worldwide live on less than $1.90 per day (the World Bank’s definition of extreme poverty), barriers to legal distribution are enormous, and even illegal distribution remains expensive.83 Piracy helps lower cost barriers, yet piracy can do only so much due to at least three factors. First, buyers and sellers face legal risks. Second, distribution is difficult where citizens lack internet access, which is the case for over 62 percent of individuals in Africa and 48 percent in Asia.84 Finally, pirates also want to collect a profit.85 79

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2 Alexis de Tocqueville, Democracy in America 59 (Henry Reeve trans., Longmans, Green 1875) (1838). See Richard Florida, The Rise of the Creative Class: And How It’s Transforming Work, Leisure, Community, and Everyday Life (2004). William Easterly, Foreign Aid for Scoundrels, N.Y. Rev. Books (Nov. 25, 2010), http://www .nybooks.com/articles/archives/2010/nov/25/foreign-aid-scoundrels. Let Me Entertain You, Economist, Aug. 15, 2009 at 36. Press Release, World Bank, Decline of Global Extreme Poverty Continues but Has Slowed: World Bank, The World Bank (Sept. 19, 2018), http://www.worldbank.org/en/news/pressrelease/2018/09/19/decline-of-global-extreme-poverty-continues-but-has-slowed-world-bank; see also Shaohua Chen & Martin Ravallion, The Developing World Is Poorer Than We Thought, but No Less Successful in the Fight against Poverty 22 (World Bank Development Research Group, Policy Research Working Paper No. 4703, 2008). For internet penetration rates, see Internet Usage Statistics: The Internet Big Picture, Internet World Stats (2019), http://www.internetworldstats.com/stats.htm (last visited June 25, 2019). First, it is possible that the most salacious material is the most pirated, in which case the scope of making developed country art that touches on human rights, freedom, and equality more available through considerably reducing copyright is greater than initially assumed. Second, hesitancy to take part in piracy varies from individual to individual, but trends may also be

Piracy Does Not Solve the Problem

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Given that few but the elite in developing countries have money to buy entertainment, neither legal nor pirated entertainment is often readily available. Even though Apple’s iTunes store first opened in 2003, it is still inaccessible in dozens of developing countries.86 Michele Woods, the director of the copyright law division of WIPO, stated that diplomats from developing countries often ask her when Apple will bring the iTunes store to their countries.87 These diplomats, unlike many citizens in the countries they represent, have the means to pay for material on iTunes; nevertheless, even if their home countries have extreme copyright laws, multinationals like Apple either do not trust the laws will be enforced or do not think it makes economic sense to cater to poor countries. Such a dichotomy is all too common in developing countries. Unfortunately, just as for-profit enterprises from developed countries are at times unwilling to enter developing markets for fear of an arbitrarily enforced copyright regime, so are nonprofit organizations reticent to subject themselves to the vagaries of a very inconsistently applied legal regime. Nonprofits from developed nations generally follow the copyright laws in developing countries. The tragedy is that many leaders of nonprofits probably know they could reach more individuals if they disregarded the copyright laws, but they cannot assume the risk of getting sued, which could bankrupt the organization. Such risk aversion is completely understandable. Of course, nonprofits have little money to license, create, or buy content, so they most commonly stay out of the entertainment space entirely. Hence nonprofits largely concentrate on educational materials or on other important areas such as access to health care. Again, this is not wrong. But imagine the wealth of free entertainment nonprofits could distribute if a developing country dramatically reduces its copyright protection – for example, if copyright lasts for only a handful of years instead of the life of the author plus at least a half century after her death. Furthermore, nonprofits could concentrate their spending on getting the most marginalized in society access to the technology that enables interaction with educational material and entertainment. The optimal policy to respond to this situation is the significant weakening of copyright in developing countries. Practically speaking, this entails more than the United States and other developed countries simply ceasing to pressure developing countries to strengthen their copyright protection. Developed countries must firmly

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prevalent among, for example, certain age groups. Further, some individuals may not be willing to visit places that sell pirated materials or may suspect piracy websites of spreading computer viruses. Third, while such a profit is smaller, it does not reduce the cost of the pirated artwork to its marginal cost because it includes compensation for the pirate to agree to take on illegal activity. Availability of Apple Media Services, Apple (July 16, 2019), https://support.apple.com/en-us/ HT204411. Michele Woods, Art Law – Art and Cultural Industries: What Role for Intellectual Property and Copyright Law?, Presentation at The Association of American Law Schools Annual Meeting (Jan. 5, 2019).

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and openly pledge to not oppose the weakening of protection if a developing country desires to reduce copyright; this commitment includes graciously agreeing to any corresponding alterations to treaties involving copyright and explicitly pledging to not retaliate against the developing country. Further, developed countries should actively encourage developing countries to significantly curtail copyright. Given the systemic corruption and neglect of human rights that is prevalent in developing countries, numerous developing country politicians might oppose a policy of substantially reducing copyright because in the long run it could undermine some of the illiberal values that they espouse. This is unfortunate, yet there will also likely be developing country politicians who would advocate for a meaningful reduction in copyright. If the politicians who oppose the dissemination of more international artwork into their countries have been democratically elected, developed countries could go as far as offering enticements to convince such governments to allow open access. However, the general policy should be that no developed country will force a developing country to weaken its copyright regime if it is not interested in doing so, because such action would simply be the opposite of what the United States has been destructively doing for so long – pressuring developing countries to adopt overly restrictive copyright laws that developing countries agree to only out of fear of retaliation.88 What developing country individuals need is free, robust access to middle-income and developed country artwork if they choose to seek it out.

sequencing US anthropologist Hortense Powdermaker once stated that “South Sea natives who have been exposed to American movies classify them into two types, ‘kiss-kiss’ and ‘bang-bang.’”89 It is true that much of the mainstream entertainment from middleincome and developed countries is not terribly nuanced, but distinctions exist and may prove helpful. An argument can be made that developing countries would benefit more from a modest copyright regime than from none because of the difference in what would be released into the public domain. Whereas completely eliminating copyright would allow citizens to consume all TV shows and movies for free, a copyright regime of 14 years of protection would enable citizens to freely watch only content that is no longer protected. The exclusion from the public domain of artwork created in the last 14 years would make a difference in the freely available content and messages. 88

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See generally Peter Drahos & John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2002). Hortense Powdermaker, Hollywood, the Dream Factory: An Anthropologist Looks at the Movie-Makers 14 (1950).

Sequencing

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Some may feel that recently created artwork would be more effective in conveying liberal values. Movies and TV shows in middle-income and developed countries have become more progressive over time. Representation has become more realistic, inclusive, and enlightened. Mainstream content has championed long-neglected and deserving causes, such as equal protection for the LBGTQ+ community. Yet others may feel that movies and TV shows have become too edgy or violent, featuring complex antiheroes, such as Tony Soprano and Walter White, who take corruption as a given or sink into criminality. Still others may have concerns about the increase in sexually explicit language and sexual content. The issue of whether recent content and messages are good, bad, or simply neutral does not have to necessarily be fought and will not be argued here. Rather, the relevant issue is that a developing country that is more traditional or conservative might benefit from seeing older content before seeing the content of the last 20 or 30 years. This idea of sequencing the release of international artwork within developing countries is not novel to the field. Macroeconomists have long acknowledged that the success of macroeconomic reform is in part due to the order in which various policies are implemented. One potential concern is whether developing country citizens would watch older international content. Considering that citizens in developed countries continue to watch some of this vintage content, it seems likely that individuals in developing countries also would. Moreover, time delays in “hot” entertainment can exist in a digital world as well as an analog one. Anyone who had the opportunity to visit a Soviet country before 1991 experienced a time warp – the fashion of the day in Tirana was what was worn in New York a decade or more earlier. While the slack in internet adoption rates within developed countries has shrunk, high-speed internet connections in many developing countries are rare, as is the rate of internet connection across the country at any speed. Thus, while the elite in poor countries might be aware of contemporary entertainment coming out of developed countries, the average citizen would have to rely on other forms of access to entertainment. Also, substantial portions of some of the poorest developing countries are essentially media dark. Significantly reducing the copyright term in developing countries would allow not just national TV broadcasters to legally air Friends and Cheers for free, but also nonprofits to get content to individuals without reliable media access. This is not to claim that a policy of sequencing the release of entertainment through shortening the copyright term in developing countries would work perfectly. Some might still be offended by the less edgy content or object to an apparently paternalistic policy. Technological access to any entertainment could still be difficult for a large portion of individuals. Yet perfection cannot be the enemy of the good. Importantly and justifiably, sequencing would be hard to accept in regard to progressive content that champions equality for all as opposed to explicit content.

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Yet history shows that such sequencing might be advisable and has been explicitly strategized by numerous reform causes.90 We should not forget our aim: to allow for a multicultural world that respects every individual as an individual, with rights – a world that does not treat anyone as a subject of a government, clan, religion, or family.91

caveats We are used to thinking of modern culture as corrosive. Those on the right of the political spectrum aver that modern culture is degrading morally, while those on the left assert that media encourages consumerism and passivity among other misdeeds.92 Obviously, culture is a common concern across the political spectrum, but development scholars and human rights theorists need to be able to discuss culture without fear of politicization. Critiques from both aisles have some merit, but modern culture has certain positive attributes as well. Although art from middle-income and developed countries is often far from ideal in the values it espouses or in artistic quality, it needs to be measured against the practices and artistic messages that pervade developing countries. While some middle-income and developed country artwork is actually less liberal in the values it communicates than some developing country artwork, the balance still favorably points toward middle-income and developed country artwork being more liberal, varied, and factually correct overall.93 In most cases, modern artwork will be more helpful than harmful to those who consume it in developing countries.94 Further, presenting the complete spectrum of middle-income and developed country artwork, warts and all, will convey to developing country citizens how rich and varied a culture can be if it espouses freedom of expression. Indeed, since not even the best art will touch everyone, the most effective strategy is to allow access to all international artwork.

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See generally Debra C. Minkoff, The Sequencing of Social Movements, 62 Am. Soc. Rev. 779 (1997). I am not taking a stance on whether sequencing is preferred to opening up all developing, middle-income, and developed country artwork for free to everyone within developing countries. I believe both strategies would be marked improvements over current policies and could help countless individuals. See generally, e.g., John De Graaf, David Wann, & Thomas H. Naylor, Affluenza: The All-Consuming Epidemic (2001) (in association with Redefining Progress, a nonpartisan organization located in Oakland, CA) and Bill Donohue, Secular Sabotage: How Liberals Are Destroying Religion and Culture in America (2009). Furthermore, not all developed country individuals ascribe to all liberal values or disbelieve in superstition: “To this day, many Lapps earnestly believe that if you show the [Northern Lights] a white handkerchief or a sheet of white paper, they will come and take you away.” Id. at 32. Also, developed country citizens can likely benefit from being exposed to good art from developing countries.

Why Good for Developed Countries

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Certainly, there are problems confronting developing countries that will not magically dissolve by watching more movies. Also, copyright policy is not the only factor slowing down the adoption of liberal values, nor will the considerable reduction of copyright guarantee political transformation. Furthermore, increasing the amount of artwork from middle-income and developed countries in certain developing countries will not necessarily have a more positive effect than other policies or events, such as having a long-standing dictatorship fall to an enlightened, democratically elected government. I also do not take a Luddite position by arguing against the greater adoption of technology in developing countries. In fact, as Marshall McLuhan has argued, the medium can be more important than the message, in that the exportation of a medium has its own effects distinct from the messages conveyed.95 I favor dramatic increases in the availability of information technology in developing countries and am open to the proposition that such increases could be possibly as effective in getting people to appreciate equality, freedom, and clean, democratic governments.96 Of course, a significant increase in the accessibility of information technology in developing countries would also substantially foster the availability of international artwork in developing countries.

why good for developed countries Developed countries should favor considerably weakening copyright in developing countries for national security, economic, and altruistic reasons. Developed countries, and in particular the United States, face significant risks from foreign state and nonstate actors because of poverty and/or nonliberal cultural beliefs.97 Threats to developed countries include terrorism, war, piracy, failed states, the spread of infectious diseases, and environmental disasters. All of these hazards are aggravated by either poverty or cultural norms that are antithetical to freedom, equality of opportunity, and human rights. Over the past few years, it has become almost fashionable to make the argument that a certain policy should be supported on national security grounds. Many 95

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See generally Marshall McLuhan, Understanding Media: The Extensions of Man (MIT Press 1994) (1964). Given the neuroplasticity of brains, such programs might need to take heed of Nicholas Carr’s warning. Without taking a Luddite perspective, Carr believes that for educational purposes teachers need to be careful how they use technology so that it is not a distraction that decreases understanding. Nicholas Carr, The Shallows: What the Internet Is Doing to Our Brains (2010). I do not suggest that poverty and terrorism are linked. My reference to poverty refers to increased risks from infectious diseases, failed states, etc. In fact, there is sparse evidence suggesting either that the poorest countries breed more terrorists or that the average terrorist is poor. See generally Alan B. Krueger, What Makes a Terrorist: Economics and the Roots of Terrorism (2007). According to research, countries with few civil and political rights do turn out more terrorists than countries with more robust rights.

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arguments invoking national security may be well founded, given how complex our society is in terms of the number and types of actors and their differing motivations.98 If security concerns are legitimate, then it becomes important to prioritize the different perils we face. Further, it is critical to rank our responses based on their cost in reputation, blood, and treasure; their probability of success; and whether they are addressing root causes or simply bandaging or alleviating symptoms. In 2000, “[c]onvinced that the global spread of AIDS [was] reaching catastrophic dimensions, the Clinton administration [. . .] formally designated the disease” as a “threat to U.S. national security.”99 The US government ultimately responded with targeted measures including the $15 billion Emergency Plan for AIDS Relief and Department of Defense programs that provided condoms to the Angolan armed forces and “antiretroviral drugs to the South African Defense Forces in order to maintain” both armies’ combat readiness.100 The financial cost was not extraordinary, and the programs improved our reputation. Also, the probability of slowing the epidemic was relatively high. The main drawback of the policy was that it did not tackle poverty, the source of the epidemic; instead, it was aimed at alleviating symptoms.101 Not all responses to threats can confront the causes of what puts us in jeopardy, yet the reduction of copyright in developing countries is such a policy. Making substantially more international artwork available in developing countries has the potential, over time, to address two causes of our national security concerns: poverty and the disregard for freedom, equality of opportunity, and human rights in certain societies. We do not fear economically developed, liberal democracies for a reason.102 Further, democracies allow for more, although not perfect, transparency – they do not have famines, they publicize public health concerns more widely and efficiently, and they protect the environment better.103 If the United States is willing to expend so much blood and treasure to protect and attempt to advance a liberal world order, then we need to consider using a powerful tool to advance this goal: the significant reduction of copyright in developing countries.104 Such a policy is the essence of soft power.105 98 99

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My purpose is not to address each argument’s validity here. Barton Gellman, AIDS Is Declared Threat to Security: White House Fears Epidemic Could Destabilize World, Wash. Post, Apr. 30, 2000, at A01. Steve Radelet & Bilal Siddiqi, U.S. Pledges of Aid to Africa: Let’s Do the Numbers, Ctr. for Global Dev. Notes 3 (2005) and Laurie Garrett, HIV and National Security: Where Are the Links?, Council on Foreign Relations Rep. 15 (2005). With this observation I do not mean to demean the tragic suffering of those with AIDS. For a discussion of democratic peace, see generally Michael W. Doyle, Liberalism and World Politics, 80 Am. Pol. Sci. Rev. 1151 (1986). See Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (1981). Regardless of whether developed country governments are convinced that encouraging the reduction of copyright in developing countries is best for them, developing countries should not hesitate to unilaterally weaken copyright because of the benefits that would accrue to their citizens. See generally Joseph S. Nye, Jr., Soft Power: The Means to Success in World Politics (2004) and Joseph S. Nye, Jr., Bound to Lead: The Changing Nature of American Power (1990).

Why Good for Big Copyright and All Corporations

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Developing countries that respect the rule of law, equality, freedom, and human rights would likely foster sustained, vigorous economic growth, which would also benefit developed countries’ economies.106 Robert Cooper asks us to “[i]magine a poor country with a well-run legal system but not much else in the way of resources. Someone will somehow find an opportunity to make money. In the end, the country will probably grow rich.”107 Systemic corruption obliterates incentives to create wealth and perpetuates a dynamic in which it is “in most people’s interest to take action that directly or indirectly damages everyone else.”108 Businesses will likely not thrive without illicit connections, and hence individuals without such contacts have little opportunity or motivation to better their material lot.109 Political oppression similarly limits a country’s ability to grow its economy.110 Thus giving the poor in developing countries free access to art that conveys hope and resistance will ultimately allow developed countries to profit from better investment opportunities and more robust trade with the newly robust economies of developing countries.111 If developed countries do what is morally right – reform copyright to spur development – they will be rewarded economically. Washington can more easily be convinced to alter its stance on developing country copyright regimes if Hollywood stops lobbying it for increased protection. So, why should Big Copyright revise its views on the matter?

why good for big copyright and all corporations The interconnected reasons Big Copyright should alter its stance on copyright in developing countries are already familiar – selflessness, national security, and longterm profits. Just as states are not immune to calls for selflessness, Big Copyright may not be either. Some CEOs may jump at the chance to have a hand in potentially liberating – politically, economically, and/or socially – millions of individuals.112 Some 106

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See R. Glenn Hubbard & William Duggan, The Aid Trap: Hard Truths about Ending Poverty (2009). Robert Cooper, The Mystery of Development, Prospect Mag., Feb. 2006, at 34. Tim Harford, The Undercover Economist: Exposing Why the Rich Are Rich, the Poor Are Poor – And Why You Can Never Buy a Decent Used Car! 198 (2006). Id. Id. Such expanded trade and cross-border investments cannot be rejected wholesale unless one is willing to withdraw from all existing bilateral and multilateral trade agreements. Since we have agreed to participate in the global economy because we think the benefits outweigh the negatives, we need to be cognizant of such calculus when evaluating the present proposal. This is not to say that the creative destruction of capitalism should not be carefully managed like adopting a host of policies to assist those harmed from such upsurges in economic crossborder activity. See Paul Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done about It 157–72 (2007). We also have an ethical responsibility to do so. See generally Peter Singer, The Life You Can Save (2009).

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may see it as an inexpensive means of elevating the corporate brand and increasing its visibility. Indeed, since corporate giving is often used as a selling point, the cost, though insignificant – temporarily forsaking a small fraction of the company’s revenues – could on its own confer bragging rights.113 The short-term reduction in sales in developing countries would be largely inconsequential – for example, Hollywood’s decision to make a star-studded movie does not hinge on its potential market in eSwatini, nor does a developed country artist’s resolve to put more paint on canvas pivot on her prospects in the Paraguayan market.114 More important, as discussed earlier, the free flow of art that expresses liberal values will assist in creating sustained and robust economic growth. By allowing open access to copyrighted artwork in developing countries, Big Copyright will encourage citizens to adopt the values that will help pull the poor out of poverty. Greater access to international artwork will help developing countries become prosperous and, as a result, will improve the physical security of all individuals, whether at home or abroad. Filling the world’s pocketbooks will make the world safer for everyone. The capitalists themselves have mistaken what is in their own long-term best interests in regard to copyright policy in developing countries. Big Copyright thinks it can maximize profits by squeezing more profit out of its entertainment in the United States and other developed countries. It treats trade agreements with developing countries as a means to that end, not as an opportunity to develop new markets. As previously mentioned, it pushes for more copyright protection in international trade treaties so it can backdoor increases in copyright protection domestically. Yet it is unclear that greater copyright protection in developed countries will lead to much – for example, the present value of expanding copyright’s length for corporate works from the existing 95 years from publication to 115 years is exceedingly small because earning a dollar a century from now is worth very little today.115 This reasoning is penny wise but pound foolish. It resembles the thinking of publicly listed companies that err by excessively stressing quarterly earnings reports over long-term profit and growth with the consequence of cutting research and development programs that bear costs in the present but hold out the promise of rewarding long-term benefits.116 113

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This point would also be attractive to other participants in the creation of art, such as actors and directors. This does not hold for the largest middle-income country markets like India. Also, the societal benefits from my proposal will not necessarily lead to visible aggregate results immediately or in a few years. This is a long-term proposal. Of course, copyright’s arc creates tension for entertainment multinationals in that, as I argue in Chapter 4, copyright should be substantially reduced in developed countries during the arc’s last stage. Martin Lipton writes: Another irony is that managers impelled to pay close attention to the concerns of stockholders may be too profit oriented – insofar as owners stress short-run stock prices, managers may be pressed toward a focus on quick gains at the expense of risk-taking and longer-term

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The proposition that underlies the moral and national security arguments for reduced copyright – exposing developing countries to liberal viewpoints expressed in international artwork will help them develop over the long term – holds for the profit argument. Copyright owners who press for increased protection around the world are neglecting their own long-term interests. Significantly expanding access to copyrighted artwork in developing countries would help lay the foundations for much larger, new markets to sell to in the future.117 If developing countries become more liberated and more successful economically, they can become vast new markets for all companies – not just Big Copyright. A dollar a century from now, if Big Copyright successfully expands copyright protection, is worth less than a dollar 30 years from now in a developing country that gets itself on a path of sustained development. No, this is not guaranteed, but neither is whether people a century from now will have any interest in spending a dollar on a 100-year-old work. This suggests that non-copyright-focused companies should also advocate for the considerable reduction of copyright in developing countries. Just as South Korea, Singapore, and Taiwan have transformed their economies over the course of a few decades, developing countries could become economically dynamic and successful in 20 to 30 years, at which point they could resurrect a moderate copyright regime. Thus, within a relatively short period of time, especially compared to the current length of copyright protection, new stable markets for middle-income and developed country art can emerge. Given the size of the developing world’s potential markets, copyright holders could maximize their profits with such a strategy, even when discounting profits to the present. This is because by far Big Copyright’s major non-US markets are other developed countries and middle-income countries. If developing countries have much wider access to international artwork, countless individuals would become fans of middle-income and developed country art. Such appreciation would logically improve the future earning potential of Big Copyright, for these individuals would become consumers when moderate copyright is reestablished in countries that have transitioned out of poverty.118 This investment that more stable tenure might allow. Thus managerial capitalism may yield social inefficiencies by its better integration into an efficient capital market that heavily discounts large but uncertain long-term profits (and disregards the positive social externalities of the longer view and risk-taking).

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Martin Lipton, Takeover Bids in the Target’s Boardroom: A Response to Professors Easterbrook and Fischel, 55 N.Y.U. L. Rev. 1231, 1233 (1980). For example, if Mali stays extremely poor, Mali will continue to be an untapped potential market of roughly 15.5 million individuals. The World Factbook. Africa: Mali, US Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ml .html (last visited Feb. 17, 2013). Some in Hollywood might be concerned that the reduction of copyright in developing countries would increase parallel imports – for example, freely distributed French artwork in Benin would make its way back to France. While this is a serious concern with pharmaceuticals, since pills are physical goods that can be very expensive, such “gray marketing” of artwork would likely be marginal given that almost all commercial art can be captured in digital form

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business strategy for higher long-term earnings is time tested and widely replicated – just think of all the free samples one can try simply by walking through a supermarket. As far back as 1928, Edward Bernays discussed how jewelers employed a similar long-term strategy by deliberately cultivating poorer customers, as they might one day have more discretionary income.119 One could interpret such a policy as being somewhat sinister in its motivations, but one cannot seriously deny the oppressed and poor the possibility of political freedom, economic opportunity, and equality out of concern that some middleincome and developed country artwork (and liberal developing country artwork) would, in the long run, be advantaged commercially. That said, none of the above implies that international artwork and liberal developing country artwork cannot coexist successfully. Even if advocating for the dramatic reduction of copyright in developing countries does not win greater long-term profits for some Hollywood copyright holders, such a policy would in the larger scheme maximize the profits of all companies – Big Copyright and non-copyright-focused firms, rich and developing country based.120 Convergence theory based on factor-price equalization suggests that relatively poorer countries will have higher growth rates than relatively richer countries because the rate of return on possible investments will be greater given the relative scarcity of funds in the poorer states.121 In such a scenario, developed and developing country companies would maximize their profits by investing in the projects with the higher expected rate of return.122 Convergence theory stumbles because it does not properly take into account the importance of the rule of law and how pervasive corruption turns many multinational investors away and prevents developing countries from establishing their own thriving firms.123 As Nigeria’s Economic and Financial Crimes Commission chief “Nuhu Ribadu said in an interview with Human Rights Watch, ‘The problem [of corruption] started a long time ago and it has eaten deep into all sectors of society and has almost taken over our entire way of life . . .. Everyone is involved now, even community leaders.’”124 A former president of South Africa, Kgalema Motlanthe,

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and given the pervasiveness of the internet in developed countries. Essentially, there would be little profit at stake in sending French music CDs from Benin back to France because the French, if they so desire, can already quite readily simply download an illegal copy or burn a copy from a friend. Edward L. Bernays, Propaganda 87–88 (Ig Publishing 2004) (1928). Big Copyright’s piracy figures have been widely disputed for their inflated estimates. See Rafael Rob & Joel Waldfogel, Piracy on the Silver Screen (National Bureau of Economic Research, Working Paper No. W12010, 2006), http://www.nber.org/papers/w12010. See generally Paul A. Samuelson, International Trade and Equalisation of Factor Prices, 58 Econ. J. 163–84 (1948). Id. See Harford, supra note 108. Human Rights Watch, “Chop Fine”: The Human Rights Impact of Local Government Corruption and Mismanagement in Rivers State, Nigeria 96–97 (2007), http://www.hrw

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“admits that at every level of government the scourge is ‘far worse than anyone imagines.’”125 While all investors face risk that an investment will fail, in thoroughly corrupt countries where property and contract law are not respected, investors encounter a second type of risk – corrupt public servants may take their investment either directly through expropriation or indirectly through improperly enforcing contracts and property claims. If, through the free flow of middle-income and developed country artwork, the poor shift their perceptions on what practices are acceptable, stand up to corrupt officials, and fight for reform, they can, over the long run, establish a cleaner government and an economy that encourages local start-ups and is attractive to multinational investors. If this happens, it would not be a zero-sum game; genuine wealth for many, inside and outside the developing country, would be created. Firms – whether large copyright holders or non-copyright-focused entities – would earn higher rates of return and not have to face significant risks of expropriation and corruption. As mentioned earlier, copyright could be strengthened in developing countries that succeed.126 If Hollywood copyright holders, after discounting future returns in the event a moderate copyright regime is later introduced, would ultimately not maximize their profits overall because they essentially have had to wait 20 years for the markets in developing countries to establish themselves, such copyright holders could still be hypothetically reimbursed by all the other firms (e.g., Ford or General Electric) in the economy that are benefiting from the free introduction of developed country artwork into developing countries. In fact, the Kaldor–Hicks version of efficiency says that because of this hypothetical transfer, such a scenario would be efficient – it would maximize overall growth.127 This conclusion becomes more compelling if such transfers actually occur, which, of course, could be arranged. This solution is not as far-fetched as it initially may sound. In fact, given that numerous corporate conglomerates own media and entertainment interests along with other types of companies, such Kaldor–Hicks efficiency gains could likely occur within such firms, leading to an overall increase in their profits. Finally, not only would the forgone profits of Big Copyright be minuscule and the size of the future markets it would be helping create vast, but if Big Copyright does not stop lobbying to maintain the excessively long and expansive copyright regimes in developing countries, it runs the risk that public opinion in developed and developing countries might turn against it, vilifying it as the next Big Pharma. Admittedly, Big Copyright is not denying lifesaving drugs to the dying poor, but

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.org/en/node/11042/section/9 (citing Human Rights Watch interview with Nuhu Ribadu, executive chairman, Economic and Financial Crimes Commission, Abuja, Aug. 18, 2006). He Promises a Big Clean-up, Economist, Oct. 17, 2009, at 57. This decision should be left to the citizens of each country. Anthony T. Kronman, Wealth Maximization as a Normative Principle, 9 J. Legal Stud. 227, 235–39 (1980).

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one cannot underestimate the public’s sophistication in quickly becoming aware of injustices and shaming those capable of helping but being unwilling to help. If Big Copyright is actually reviled, its damages will likely be greater than those sustained by Big Pharma because demand for art is much more elastic than demand for drugs. Regardless of how bad you think a drug company is, you will likely still buy its products if they will alleviate a serious illness. The same is not the case for entertainment. By ceasing its lobbying and instead pushing for dramatically greater access to middle-income and developed country art in developing countries, Big Copyright can likely boost its long-term business outlook and prevent the risk of a public relations disaster.

possible concerns I would like to preemptively address potential criticisms in order to demonstrate that such concerns are either unfounded or minimally inconvenient and could thus be assuaged. Cultural Relativism Some aspects of cultures are relative or depend on individuals’ preferences – a fondness for Indian saris over Japanese kimonos. Yet some people claim that all aspects of a culture are relative. This stronger claim is patently wrong.128 Aspects of certain cultures are always and unambiguously harmful. For example, one cannot seriously claim that honor killings are anything but abhorrent.129 Plus, “selling young girls as brides” is a repugnant practice that does not take the interests of those hurt into account.130 These practices are imposed on the weak by those with power. To accept selling girls as brides and other such practices as relative norms of 128

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I am not attempting to purposefully highlight the injustices of one region, religion, or culture – many are in need of improvement, including numerous practices in developed countries. Furthermore, this issue should not divide political parties in developed countries as has been suggested by, for example, Susan Jacoby. She states that she “finds [herself] in a lonely place in relation to many liberals, political and religious, because [she] cannot accept a multiculturalism that tends to excuse, under the rubric of ‘tolerance,’ religious and cultural practices that violate universal human rights.” Susan Jacoby, Multiculturalism and Its Discontents: Why Are Liberals Excusing Religious Abuses on Grounds of Cultural Relativism?, Big Questions Online (Aug. 19, 2010), http://www.bigquestionsonline.com/columns/susan-jacoby/multicul turalism-and-its-discontents. The Law Changes. Will Attitudes?, Economist, July 18, 2009, at 45. “It is still common, . . . throughout the Middle East, for men to murder female relatives deemed to have besmirched the family’s moral standing – for example, if they have had sex outside marriage or wear immodest clothes.” While many honor killings go unreported, the “United Nations Population Fund estimates that, across the world, as many as 5,000 women a year may be fatal victims.” Id. The Unhappiest Day of Her Life, Economist, Aug. 15, 2009, at 14. “The forced marriage of young girls is a long-standing tradition in Afghanistan, often used as a means of settling disputes and debts, or raising money. Around 60 percent of girls are married off before they reach the

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different cultures is to claim that those with power can legitimately decide to sell other humans and those being sold have no right to direct their own lives. The same must be said of cultures that prohibit women from marrying without their male relatives’ permission and prevent them from passing on their citizenship to their children – under Saudi Arabia’s “guardianship system, women essentially rely on the ‘goodwill’ and whims of male relatives to determine the course of their lives.”131 Some of these practices are technically illegal yet rarely prosecuted. Many are supported by the full extent of the law. An extended example illustrates the problem: “It is a common belief in Angola’s dominant Bantu culture that witches can communicate with the world of the dead . . . [and] bewitch children by giving them food, and then force them to reciprocate by sacrificing a family member.”132 In numerous African countries, including sections of “Angola, Congo and the Congo Republic, a surprising number of children are identified as witches and beaten, abused or abandoned.”133 In just one city, Kinshasa, “child advocates estimate that thousands of children living in [its] streets . . . have been accused of witchcraft and cast out by their families – often a rationale for not having to feed or care for them.”134 Two cases from Luanda are especially saddening. A mother “blinded her 14-year-old daughter with chlorine bleach to rid her of what she thought were evil visions,” while a father “injected battery acid into his 12-year-old son’s stomach because he feared he was a witch.”135 Unfortunately, while the government of Angola has crusaded against such practices, the beliefs that underlie them remain deeply entrenched. Ana Silva, head of child protection for Angola’s National Institute for the Child, said, “‘We cannot change the belief that witches exist . . .. Even the professional workers believe that witches exist.’”136 Bishop Emilio Sumbelelo stated, “‘To date, we have not found any special way to fight against this phenomenon.’”137 These practices are universally repugnant because they violate human rights, justice, autonomy, liberty, or equality. For practical purposes, I will only briefly defend the universality of human rights, touching on autonomy and liberty. The following account draws heavily on the work of James Griffin.

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legal minimum age of 16 . . .. Pregnancies among 10- to 14-year-old girls contribute to the country’s high incidence of maternal mortality.” Emma Graham-Harrison and agencies, Saudi Arabia Allows Women to Travel without Male Guardian’s Approval, Guardian, Aug. 2, 2019, https://www.theguardian.com/world/2019/aug/ 01/saudi-women-can-now-travel-without-a-male-guardian-reports-say. Sharon LaFraniere, Mean Streets Hold Little Magic for Young African ‘Witches,’ Int’l Herald Trib. (Nov. 13, 2007), https://www.nytimes.com/2007/11/13/world/africa/13iht-witches.4.8320813 .html. Id. Id. Id. Id. Id.

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Human rights protect our unique status as humans – our personhood.138 To get a better understanding of personhood, “one can break down the notion of personhood into clearer components by breaking down the notion of agency.”139 Being an agent in a robust sense entails three components: autonomy, a minimum provision of goods and knowledge, and liberty. One must be able to “choose one’s own path through life – that is, not be dominated or controlled by someone or something else (call it ‘autonomy’).”140 But “one’s choice must be real; one must have at least a certain minimum education and information. And having chosen, one must then be able to act; that is, one must have at least the minimum provision of resources and capabilities that it takes (call all of this ‘minimum provision’).”141 Finally, neither autonomy nor minimum provision matters if “someone then blocks one; so . . . others must also not forcibly stop one from pursuing what one sees as a worthwhile life (call this ‘liberty’).”142 Given that we “attach such high value to our individual personhood, we see its domain of exercise as privileged and protected.”143 This is not to say that human rights are the final say on all matters or that they constitute the totality of ethics – neither of which is true.144 Rather, human rights protect an “austere life of a normative agent,” not a “fully flourishing life.”145 Also, numerous things can be very important to humans’ lives – “indeed, greater than a lot of issues of human rights – without themselves thereby becoming grounds for human rights.”146 Furthermore, human rights are defined not only by personhood but also by practicalities, empirical information about human nature and societies 138 139 140 141 142 143 144

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James Griffin, On Human Rights 33 (2008). Id. Id. Id. Id. Id. Immanuel Kant, Joseph Raz, Ronald Dworkin, Robert Nozick, Alan Gewirth, Jeremy Waldron, and others have varying views of human rights. See Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., Cambridge University Press 1991) (1797); Joseph Raz, The Morality of Freedom (1986); Ronald Dworkin, Taking Rights Seriously (1978); Robert Nozick, Anarchy, State, and Utopia (1974); Alan Gewirth, The Community of Rights (1996); and Jeremy Waldron, Liberal Rights (1993). Yet the accounts share significant commonalities and the differences are minimal compared to the gulf between those who champion human rights and their sceptics. For example, Kant believes in the idea of personhood; he draws the contrast between mere objects or things, which have equivalents and can be priced and exchanged, and people, who are unique and cannot be priced or interchanged. Given their uniqueness and autonomy, humans are endowed with human rights, which can be viewed as trumping potentially competing considerations. On the other hand, Griffin sees the exercise of personhood “as in itself an end the realization of which characteristically enhances the quality of life.” Griffin, supra note 138, at 36. Thus personhood is “highly important,” yet not “immune to trade-off with other elements of a good life, such as accomplishment, certain kinds of understanding, deep personal relations, enjoyment, and so on.” Id. Griffin, supra note 138, at 53. Id. at 54.

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that is not specific to one time or one place, but rather universal.147 While universality is “built into the idea” of human rights, it does not follow that “the content of a human right cannot make reference to particular times and places.”148 For example, there are basic universal human rights like freedom of expression and derived human rights “got by applying basic rights to particular circumstances” like freedom of the press, which is not vital to a hunter-gatherer, small group of people.149 To argue that autonomy, minimum provision, and liberty are relative to a culture instead of common to all humans is quizzical. Some may be skeptical of the universality of human rights simply because of the concept’s perceived origins in Europe in the late Middle Ages and the historical harms that Europeans have forced others to suffer. However, recent work by Samuel Moyn suggests that human rights are, in fact, a recent development, born out of horror at the West’s trajectory.150 Some may be cynical about the underlying values that support human rights – predominately autonomy and liberty – because they believe that community interests should trump both.151 Yet: It may be that realizing certain of the values of individualism is incompatible with realizing certain of the values of community. But incompatibility of values is not their relativity. Besides, the frequency of the incompatibility is exaggerated. Not all forms of autonomy are the autonomy to which we attach great value . . .. What we attach great value to is the autonomy that is a constituent of normative agency, and relying on a tax accountant or an astrophysicist does not derogate in the least from one’s normative agency. And the forms of solidarity to which we attach such great value do not require surrendering our normative agency.152

Thus the main objections to human rights – that the concept is a historical product of Europe and that the values that underpin it, autonomy and liberty, are 147 148 149 150

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Id. at 38. Id. Id. See generally Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018) and Samuel Moyn, The Last Utopia: Human Rights in History (2010). For a prominent account of communitarianism, see Michael J. Sandel, Liberalism and the Limits of Justice (1982). Writings by Alasdair MacIntyre, Charles Taylor, and Michael Walzer are also thoughtful. Griffin, supra note 138, at 133. The fact that we rank competing values when making choices does not mean that values are relative: The plausible explanation of the fact that different societies rank autonomy and solidarity differently is not that they are rankings of the relativist sort. Everyone, on pain of mistake, has to admit that autonomy and solidarity are both highly valuable. No one would maintain that any loss in autonomy is worse than any loss in solidarity, or vice versa. And the more specific a choice between the two becomes – a certain loss of autonomy, say, to achieve a certain gain in solidarity – the more convergence in choice one will expect there to be. We do seem able, if only roughly, to compare these competing values. Id. at 134.

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relative – are misguided arguments; they do not give the powerful the choice to sell girls as brides or to deny citizens the vote.153 Although I have criticized aspects of some developing countries’ cultures in this section, I should note that the improvement of developed countries’ cultures will be taken up on the other side of the arc, as the reduction of copyright terms in rich countries will help mitigate complacency and self-satisfaction on the part of citizens in developed countries, who enjoy the material benefits of development but spend 9 hours and 30 minutes a day on media instead of helping the poor or doing other more salutary activities.154

Economic Development and Capitalism A few postdevelopment activists and scholars argue against making economic development or capitalism goals for developing countries.155 While their views are diverse, they center around a core of ideas that can include the concept that sustained economic growth is either a ploy to continue Western domination of developing countries or a destructive force that unleashes havoc on social, familial, and cultural norms. Some of these views are not new – Jean-Jacques Rousseau and other philosophers to some extent romanticized the life of those in the state of nature.156 The same internal critique of one’s own society continues to be a theme in contemporary developed country mass media – one reason why it is feared by despots abroad. 153

Another argument against the universality of human rights is that some of them have a conventional element and hence are relative. However, having a conventional element does not negate a right’s universal applicability: If the convention adopted by one society could be seen to be working rather better than the convention of another, then there is strong rational ground for the second to adopt the convention of the first. If, as is common, we cannot tell whether any one convention is working better than the others, then no society would have good reason to resist an obvious solution to the divergence: agreement on a common convention. This sort of difference between societies represents not a different framework of basic evaluations but merely a highly constrained difference in a rational opting.

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Id. at 136. One last mistaken view is: “There are those who maintain that, even if ethical relativism were false, the problem of ethnocentricity would remain.” Id. at 137. For a refutation of the problem of ethnocentricity, see id. at 137–42. Shirin Ebadi, Iran’s Nobel laureate human rights campaigner, is sympathetic to Griffin’s analysis. Ebadi “concedes that she would rather that the fight for women’s rights did not involve interpreting musty religious texts. ‘But is there an alternative battlefield?’ she asks. ‘Desperate wishing aside, I cannot see one.’” Islam’s Many Hats, Economist, May 8, 2010, at 85. Throughout this book I will use developed countries and rich countries synonymously. See generally The Development Dictionary: A Guide to Knowledge as Power (Wolfgang Sachs ed., 1992). In fact, some activists and scholars even dispute the standard terminology used in such debates, objecting to words like developing countries. See generally Jean-Jacques Rousseau, Discourse on the Origin of Inequality (Donald A. Cress ed. & trans., Hackett 1992) (1755).

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Given many countries’ history with the slave trade and their experience with colonialism, it is understandable that some citizens of developing countries decided to rid themselves of capitalism because they deemed it contaminated or inseparably connected to colonialism.157 Such anti-colonial thinking shares numerous similarities with dependency theory, which avers that developed countries exploit developing countries in their political and economic relations – for example, through unjust terms of trade.158 Again, while there are different strands of dependency theory, it is largely held that developing countries need to disengage from developed states to break the link of exploitation.159 This disentanglement is more anti-capitalism than anti-economic growth. Yet such a historical link should not discredit the only economic structure that, despite its limitations and dangers, has proven itself capable of, on a wide scale and over the long term, pulling societies out of poverty. If you ask anyone on the street if he or she wants to continue being poor, you will very often get a radically different response from that of a postdevelopment or dependency theorist.160 In fact, a Gallup survey of 259,542 adults in 135 countries determined that roughly 700 million adults would like to permanently emigrate.161 It should be noted that these results are indirectly indicative of the respondents’ desire for better economic, social, and political freedom and the better prospects such conditions bring; if the people surveyed had been asked if they wanted their own countries to become developed, one would expect an even higher percentage to say yes, because not everyone wants to permanently move to a foreign place. Another informative set of studies is the World Bank’s Participatory Poverty Assessments (PPAs), which suggest that poor individuals in developing countries desire the fruits of economic development.162 PPAs are “[u]nlike household surveys, which collect 157

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Sadly, such atrocities continue. Recently deposed “[Sudanese dictator] Bashir’s Arab militias, the janjaweed, may have halted their massacres in Darfur, but they continue to traffic black Sudanese as slaves (Bashir himself has been accused of having had several at one point).” George B.N. Ayittey, The Worst of the Worst: Bad Dude Dictators and General Coconut Heads, Foreign Pol’y (June 15, 2010, 6:40 PM), http://www.foreignpolicy.com/articles/2010/06/21/the_ worst_of_the_worst. See also George B.N. Ayittey, Africa Unchained: The Blueprint for Africa’s Future 94 (2005) and Henry Louis Gates Jr., Ending the Slavery Blame-Game, N.Y. Times (Apr. 22, 2010), https://www.nytimes.com/2010/04/23/opinion/23gates.html. Andre Gunder Frank, Capitalism and Underdevelopment in Latin America: Historical Studies of Chile and Brazil (1967). Id. Other scholars take a less radical stance than postdevelopment theorists, arguing, for instance, that the primary goal of development should be nurturing people’s capabilities. Such theory usually does not argue against economic growth but does clearly view it as a secondary goal to enhancing capabilities – not as one of the primary goals integral to enhancing capabilities. Such theory would not be in conflict with this proposal. See, e.g., Amartya Sen, Development as Freedom (1999). Neli Esipova & Julie Ray, 700 Million Worldwide Desire to Migrate Permanently: U.S. Tops Desired Destination Countries, Gallup (Nov. 2, 2009), http://www.gallup.com/poll/124028/700million-worldwide-desire-migrate-permanently.aspx. See generally Caroline M. Robb, Can the Poor Influence Policy?: Participatory Poverty Assessments in the Developing World (2d ed. 2002).

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statistical data on the extent of poverty through standardized methods and rules.” Instead, “PPAs focus on processes and explanations of poverty as defined by individuals and communities within an evolving, flexible, and open framework.”163 Asking the poor what constitutes poverty and what is needed to break free generates responses such as better roads and schools – projects that require robust and sustained growth to be adequately funded.

Cultural Imperialism In at least some developing countries, a few politicians or a larger portion of the local population might view the effort to import more international art into their country not as an altruistic attempt to improve human rights but as a Trojan horse intent on destroying or dominating their culture.164 Again, given historical instances of such attempts, skepticism is understandable.165 While the aim of widely expanding access to middle-income and developed country art in developing countries is to introduce individuals to liberal values, the intent and effect are not imperial. Unlike the heavy-handed, repressive policies of some developing countries, this proposal will not force anyone to believe in equal rights for women, let alone mandate that they consume any developing or developed country art at all. Furthermore, the point of the proposal is to set developing countries free to decide copyright’s fate on their own – to have developed countries stop applying pressure on developing country politicians to maintain excessive levels of copyright protection. The policy simply stresses expanding options to individuals and allowing them to freely choose – a principle that David S. Landes finds lacking, along with others, in many developing countries.166 Landes makes clear that some currently developing countries were once “teachers of the West,” which suggests that the currently rich West was open to learning from the best practices of other countries and that such instruction was not Eastern imperialism that destroyed or sabotaged Western culture.167 Just as Europeans were free to decide whether to study and adopt others’ practices, developing country individuals would be able to do the same if developing, middle-income, and developed country artwork becomes more freely available in their countries. Developed countries would not be forcefully imposing anything on developing 163 164

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Id. at 5. Plato was a critic of art. He believed that art misleads us from the truth because it misleadingly copies the appearance of reality and hence hurts us psychologically. He also thought that art distracts us from reason through its ability to conjure our emotions. Plato, The Republic 335–53 (Desmond Lee trans., Penguin Classics 2007) (c. 380 B.C.E.). See generally Edward W. Said, Orientalism (1979). David S. Landes, Global Enterprise and Industrial Performance: An Overview, in The Invention of Enterprise: Entrepreneurship from Ancient Mesopotamia to Modern Times 1, 2–3 (David S. Landes, Joel Mokyr & William J. Baumol eds., 2010). Id. at 2.

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country individuals; rather, they would be making views available that run counter to the stifling ideological coercion that is currently going on in many developing countries, where people are told, sometimes with threat of severe punishment, what beliefs to hold about politics, gender, and social hierarchy. Furthermore, if developing countries dramatically reduce copyright, much of the material that could be newly circulated would come from middle-income countries that were themselves victims of colonialization. Such works would possibly be viewed with less concern. I do not think we should give up on advocacy for human rights because some might criticize it on the grounds of a misguided, though understandable, notion of cultural hegemony. There is a principled distinction between advocating for human rights, equality, and freedom and attempting to colonize or destroy another’s culture. I do not think one country’s literature is better than another’s. I do want to give the oppressed the universal idea that they are equal to their oppressors and have a universal human right to be free of oppression and discrimination. Establishing human rights protections may require aspects of a culture to change, but this is not colonizing a culture. Cultural hegemony is when the privileged elite of any nation or group use their power to exploit the poor. We have a commitment not just to social and economic rights but to civil and political human rights. Scholars cannot be afraid to criticize foreign leaders who jail, torture, or abuse members of the LGBTQ+ community. Nor should they hesitate to push back against cultures that find it acceptable to subjugate women. Critique is not colonialism. If we cannot criticize a culture because it subjugates women, we do not suffer; those discriminated against do. We can be sensitive to the elite within developing countries, but they are not at risk of having their human rights violated. In fact, the concern is that the powerful in developing countries will think they have a privilege to abuse others for being different. Human rights are universally applicable, yet matter most to those struggling in poor countries.168 Also, concerns of a global monoculture are overblown. Certain unalienable protections like civil and political human rights should be globally respected, yet encouraging the universality of freedom, equality, and the rule of law leaves vast oceans of other important cultural practices untouched. There are countless examples of societies making room for foreign cultural practices without abandoning their own forms of artistic expression. For example, while international music circulates in Ghana, “domestic music has captured 71 percent of the market.”169 168

169

Furthermore, while some may attempt to secretly code their contempt for others in legitimate means, this does not mean that all do so or that we must sacrifice the vulnerable to continued exploitation by the powerful in their countries in order to guard against any secret, unsavory attempts by foreigners to change the status quo from abroad. Tyler Cowen, For Some Countries, America’s Popular Culture Is Resistible, Int’l Herald Trib. (Feb. 22, 2007), https://www.nytimes.com/2007/02/22/business/worldbusiness/22iht-export.html. “Many smaller countries have been less welcoming of cultural imports. It is common in

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The French have embraced the culinary traditions of many nations from all corners of the globe, including eating at McDonald’s more than any other European society does, all the while proudly and successfully maintaining their own cuisine.170 Since 1990, Hollywood has nominated for Oscars or awarded Oscars to movies from Algeria, Argentina, Bosnia and Herzegovina, Brazil, China, Cuba, Georgia, Hong Kong, India, Iran, Kazakhstan, Macedonia, Mexico, Nepal, the Palestinian territories, Peru, Poland, Russia, South Africa, Taiwan, and Vietnam. Even writing two decades ago, Tyler Cowen and Eric Crampton believed, “at home, the United States enjoys no cultural hegemony.”171 Back then, Latin music sales in the United States were over $600 million annually.172 Furthermore, developing countries can always subsidize the creation of developing country artwork, hopefully artwork demonstrating liberal values. Unless the subsidizing and exchange of art is driven by politically nefarious intentions, even some prominent economists who believe in free trade allow for such a “cultural exception.”173

Harmful Messages Another prospective objection is that international artwork contains content that would harm developing countries exposed to it. This possible concern is similar to the last three articulated – cultural relativity, development as a goal, and cultural imperialism. To differentiate this fourth concern from the other three, I will interpret it as suggesting that some international art, not pieces propounding human rights and equality, could contain messages corrosive to developing country individuals. Not all artwork is equal.174 First, while some international artwork may be harmful, it is unclear how much of it conveys bad messages. Second, if developing country individuals think international art is simply salacious, such a view may have come about because the most salacious international art is likely more widely demanded, consumed, or pirated in developing countries than other types of art. Thus opening up all international art to developing country individuals would bring a very different perspective. Third, while some international artwork might be a bad influence, we have to put its effects into perspective. Taken as a whole, the vast

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171 172 173 174

Central America for domestically produced music to command as much as 70 percent of market share.” Id. These figures do not note what percentage of foreign music sales comes from other developing countries versus developed countries. Alternatively, US movies are far more successful than US music in developing countries. Niamh Cremin, France Becomes McDonalds’ Largest European Market, Bord Bia: Irish Food Board, Feb. 13, 2009. Tyler Cowen & Eric Crampton, Uncommon Culture, Foreign Pol’y, July–Aug. 2001, at 29. Id. Jagdish Bhagwati, In Defense of Globalization 118 (2004). Just as not all artwork is equal, not all art forms are necessarily equal. Nevertheless, this subsection concentrates on artistic messages – not artistic mediums, genres, structures, or styles.

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amount of international artwork with more liberal messages more than cancels out the bad. In addition, presenting the full range of international artwork will convincingly demonstrate to developing country individuals how robust and varied a culture can be when individuals possess freedom of expression. To properly respect others as autonomous adults, we must assume that they are able to “handle” unfiltered access to the total range of middle-income and developed country culture. Doing otherwise would, in some sense, be replicating the infantilizing practices of their government censors and despots. We must give unobstructed access and let citizens freely decide for themselves what is worth hearing or viewing. If the unfiltered flow of all international art into developing countries is prevented, then second-best scenarios, such as subsidizing the distribution of international artwork in developing countries, should be considered. For many of these second-best proposals, it would be necessary, on some level, to select swaths of artwork for dissemination. Such a procedure would require some differentiation for selection based on what messages the art conveys. Just as some developing country practices are clearly wrong – for example, honor killings – while others are less so, some international artwork will clearly not be the best to export, while selecting from other pieces may be less clear cut. This is not a problem but rather a practical issue. For such second-best practical suggestions, the mission will be to find international art that most effectively dispels the worst and most prevalent biases found within developing countries and leave it to developing country citizens to decide whether they want to consume such art and, if so, whether they ultimately appreciate it. International entertainment can be vapid, yet this is the price of freedom – we take the good with the bad and believe that the trade-off is worth not being jailed for political speech and having tools to fend off would-be dictators.

Differing Interpretations Even if encouraging the importation of middle-income and developed country artwork is not considered a Trojan horse, some developing country individuals could interpret cultural messages in international artwork differently from how the artwork is interpreted elsewhere. In fact, interpretations are likely to vary at least slightly, as they do between different cultures that share a commitment to human rights and possess advanced economies but differ in certain cultural practices.175 Yet it is difficult to imagine that interpretations could be so disastrously aberrant as to entrench or deepen a disbelief in human rights or that 175

A distinct yet related argument is that artwork is altered when those interacting with the artwork interpret it. See Graham McFee, The Historicity of Art, 38 J. Aesthetics & Art Criticism 307 (1980).

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possible misunderstandings would negate or overwhelm the positive benefits of widely distributing international artwork. If middle-income and developed country individuals cannot have faith in liberal ideals winning over intolerant beliefs in a free and open marketplace of ideas in the long run, then how can such individuals advocate for democracy in their home countries?176 Learned Hand expressed this sentiment when he stated that “right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”177 Further, how else do such sceptics propose to instill a belief in freedom – through force? Misunderstandings and real setbacks will happen, yet we have to respect the capacity of others to reason and ultimately see right from wrong. It may not happen quickly, yet there is no more acceptable way than to present ideas and let individuals choose for themselves, even if misinterpretations happen.

Art as Propaganda That was the worst of the Cultural Revolution. The boredom. One would wake to the loudspeakers. They would be saying very loudly, “Never forget class struggle.” One would brush one’s teeth and on the toothbrush was the slogan Never Forget Class Struggle. On the washbasin it said, Never Forget Class Struggle. Wherever one looked there were slogans. Most people hated them – it was really very insulting. I was thoroughly bored.178

The slogan “Never Forget Class Struggle” could be construed as a warning that oppressors can enlist art in propaganda campaigns. Governments have partaken in propaganda since at least the Roman days of bread and circuses.179 Some existing developing country governments are no exception, using this technique for their own suspect purposes.180 176

Justice Oliver Wendell Holmes Jr. touched on this matter in a dissenting opinion: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . .. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

177 178

179

180

Abrams v. U.S., 250 U.S. 616, 630 (1919). U.S. v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). Paul Theroux, Riding the Iron Rooster: By Train through China 85 (1988) (citing an unidentified Chinese scholar describing her university experience). I am using the modern negative view of the term as opposed to the historical neutral meaning. Bernays, supra note 119, at 11. Richard Dowden, Africa: Altered States, Ordinary Miracles 334 & 343–44 (2009).

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My proposal does not entail any government-created artwork or propaganda. In fact, the US government likely has to do no more, at least for nondespotic regimes, than simply stop forcing its overly robust copyright regime on developing countries and publicly commit to not retaliating against such countries if they reduce the scope and length of copyright.

Impact on Developing Country Artists Another apprehension is that substantially weakening copyright in developing countries would hurt local artists. The vast majority of individuals in developing countries are struggling to survive – many of them accept that, at least for the foreseeable future, they will have to get by without adequate health care and, if they live in slums, with plastic bags as a means of disposing of human feces.181 These issues are secondary to the need to find enough food and water to care for their families. In such a setting, many of the poor may want to create art but they do not have the time or money to do so. The few who attempt to subsist in such conditions through creating art may not even know what copyright is because it is so irrelevant to their life’s circumstances. They might create baskets, clothing, sculptures, etc. While some of these artistic mediums are protected by copyright, they do not have the money to get their day in court. The remaining developing country artists, the ones who might actually rely on copyright protection, are part of the elite – they are well educated or rich. It is possible that these few well-educated or rich artists might be motivated to create art because of the existence of copyright. Yet many of them create in artistic fields that do not generate substantial revenues from copyright. Further, any potential royalties lost by such artists would be more than offset by the long-term benefits that the significant weakening of copyright would bring to everyone: the rule of law, freedom, economic growth, etc. Even with extreme copyright, some globally acclaimed artists from developing and middle-income countries cannot make enough from copyright partly because of piracy but also because their audiences are poor. Alaa Al Aswany, Egypt’s most celebrated novelist, is a full-time dentist, even though his novel The Yacoubian Building was for years the best-selling Arabic-language novel across the world. Rory McCarthy reports him saying, “In Egypt and in the Arab world, being a novelist doesn’t mean you can make your living from writing.”182 Aswany earned a pittance from his work until he struck a deal with HarperCollins to translate it into English for UK distribution: “Before HarperCollins, what I got from The Yacoubian Building I consider as covering the price of the cigarettes and coffee I bought while I was 181 182

Boomtown Slum, Economist, Dec. 22, 2012, at 59. Rory McCarthy, Dentist by Day, Top Novelist by Night, Guardian (Feb. 26, 2006, 7:14 PM), https://www.theguardian.com/books/2006/feb/27/fiction.egypt.

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writing it.”183 This is not unique to Aswany. His predecessor as Egypt’s most wellknown novelist, Naguib Mahfouz, the Egyptian Nobel laureate for literature, “worked as a government bureaucrat until his retirement.”184 Some well-educated or rich developing country artists might suffer financially after copyright has been significantly weakened. Regardless, they will continue to be far better educated and far richer than almost all of their fellow citizens. More important, reducing copyright in developing countries has vast potential, over the long run, to improve the lives of all developing country individuals. We cannot afford to sacrifice such possibilities in the name of a privileged few.

183 184

Id. Id.

3 Copyright, Middle-Income Countries, and National Inclusivity

The [French] Revolution was not la faute à Rousseau, and probably not la faute à Voltaire either. —Robert Darnton1

In prerevolutionary, eighteenth-century France, the Low Enlightenment of popular media – anti-monarchist essays, materialist philosophical treatises, social and cultural criticism, religious satire, utopian visions, pornographic novels – produced works that were not unequivocally progressive or necessarily skillful masterpieces.2 Their authors – “the men who wrote the bestsellers of prerevolutionary France, yet . . . have disappeared from literary history”3 – have been described as the Rousseaus du ruisseau (Rousseaus of the gutter).4 Low Enlightenment works, though at times smutty or libelous, were mass consumed and often explicitly or implicitly spread worthy ideals.5 Robert Darnton states, “The men of Grub Street [Low Enlightenment authors] believed in the message of the philosophes.”6 The popularity of Low Enlightenment works made them more powerful than the canons of the High Enlightenment. As P. J. B. Gerbier marveled, “Where does so much mad agitation come from? From a crowd of minor clerks and lawyers, from unknown writers, starving scribblers, who go about rabble-rousing in clubs and cafés. 1

2

3 4

5

6

Robert Darnton, The Forbidden Bestsellers of Prerevolutionary France, 43 Bull. Am. Acad. Arts & Sci. 17, 17 (1989). See generally Robert Darnton, The Forbidden Best-Sellers of Pre-revolutionary France (1996). Darnton, supra note 1, at 30. Robert Darnton, The High Enlightenment and the Low-Life of Literature in Pre-revolutionary France, 51 Past & Present 81, 110 (1971). Darnton states, “The main surprise . . . is the relative unimportance of pornography, which amounts to only 13 percent of the total [works], or 19 percent if one adds bawdy works that were primarily anticlerical,” supra note 1, at 32. Darnton, supra note 4, at 111.

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These are the hotbeds that have forged the weapons with which the masses are armed today.”7 This is not to say that the High Enlightenment philosophes did not influence the revolution: “Both the philosophes and the libellistes [Low Enlightenment authors] were seditious in their own way . . .. Each of the opposing camps deserves its place among the intellectual origins of the Revolution.”8 Yet “the collapse that occurred in 1792 seems unthinkable without the delegitimation perpetrated by the illegal literature of the previous two decades.”9 Low Enlightenment artwork spread Enlightenment ideas and fomented dissatisfaction with political abuses, which helped create the conditions for the French Revolution. We need to generalize the idea of the Low Enlightenment, to take it beyond its eighteenth-century context. Expression meant to foment outrage with the status quo and to instigate social and cultural reform can be cathartic and persuasive, binding together individuals with separate grievances and life experiences. Local authors who do not revolutionize a society’s thought through original ideas can still have a positive transformative influence. By reflecting and addressing their culture, “low” artists drive grassroots conversation that helps build a sense of national inclusiveness. Indirectly or directly, their messages can create a groundswell over time. Darnton’s observation that Low Enlightenment authors were arguably more influential than the giants of literature and philosophy of the age is startling only if we overlook what did not make the literary canon or if we echo the scorn the libellistes endured during their lifetimes. We must honor these countless forgotten authors for their contributions to solidarity. This is not to take anything away from Rousseau and Voltaire, Diderot and Descartes. My point is that we should support the low as well as the high enlightenment forces in middle-income countries by advocating for a modest copyright regime. Moderate copyright laws and greater economic opportunity can support artists of all kinds. The low enlightenment artists will likely be creating local TV shows, music, and videos that are widely consumed yet quickly forgotten, while the high enlightenment artists will likely contribute to the lasting canon of middle-income countries, irrespective of medium. It is also possible that individual artists can move from low to high enlightenment and vice versa. The distinction does not come with judgment or prejudice. Both forces are needed; both must be acknowledged. As Alexander I. Solzhenitsyn observed, “I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either.”10 Without a functional, just legal regime, poor countries 7 8 9 10

Id. at 81 (quoting P.J.B. Gerbier, 1789). Id. at 112. Yet High Enlightenment authors never explicitly advocated for revolution. Darnton, supra note 1, at 44. Alexander I. Solzhenitsyn, A World Split Apart, The Aleksandr Solzhenitsyn Center, https://www.solzhenitsyncenter.org/a-world-split-apart. Solzhenitsyn’s Commencement Address delivered at Harvard University (June 8, 1978).

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struggle. It is difficult to establish the rule of law, yet middle-income countries continue to consolidate progress in the field. While such efforts are appropriate, it is important to heed Solzhenitsyn’s warning: an objective legal scale is not enough. Citizens are bound by the law, but the law does not gather citizens into one nation. On its own, the law does not encourage compassion and sacrifice or instill a sense of the common good.11 This is not to fault middle-income countries. The challenges they face are significant. It is a call to design copyright to promote citizenship, equality, and humanity.12 These two related efforts – solidifying the rule of law and building a sense of national unity – should both start as early as possible in a country’s development. Yet, in poor countries, copyright’s priority must be to foster belief in equality and human rights. Once a country has reached middle-income status, copyright will be more effective in forging inclusive unity.

historical censorship Over time, the justification for why a law was created can change dramatically, as has occurred with copyright. The introduction of proto-copyright and copyright laws was motivated by a desire of the political elite, often kings, to seek ever greater political control. Through copyright, they acquired a new organizational method to centralize the flow of information. In England, the first privileges enabling authors to print their books were granted over 500 years ago – beginning in the late fifteenth century. This occurred through the creation, in 1403, of the Guild of Stationers (or Stationers’ Company), “booksellers who copied and sold manuscript books and writing materials and limners who decorated and illustrated them.”13 After Gutenberg’s printing press spread across Europe, printers joined the guild and effectively sidelined the manuscript trade.14 A 1534 ban on the importation of books enhanced the guild’s fortunes. In 1556–1557, the guild received a Royal Charter of Incorporation from Queen Mary. This charter “secured them from outside competition, but they had to settle their own internal disputes, which mostly concerned infringements of ownership of ‘copies’ or what we would now call copyright.”15 The monopoly was formalized. Authors could legally print their works only if they sold them to booksellers – i.e., authors had no bargaining power at all if they wanted 11

12

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14 15

Adam Smith, The Theory of Moral Sentiments (1759) (on the fundamental importance of compassion for a society to thrive). Part of building national unity is getting people to self-identify first as citizens, but more is needed for genuine inclusiveness. Socially and ethically as well as politically, people must believe all citizens to be equal. This is because one can identify first as a citizen yet also identify with a certain portion of the population. When allegiance to one group is linked to depreciation of others, people hate and even harm their fellow citizens. The Hall & Heritage, The Stationers’ Company, https://stationers.org/about/24-the-hallheritage.html (last visited June 13, 2019). Id. Id.

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their works to be read legally. The grant also enabled the Stationers’ Company to “search for and seize illicit or pirated ‘copies’ and to prevent publication of any book which had not been licensed by a warden of the Company.”16 Plus, the Star Chamber helped enforce the power of the Stationers’ Company to decide what would be legally printed.17 After the Glorious Revolution brought about the abdication of King James II of England in 1689, Parliament refused to renew the guild’s privileges in 1694. Authors saw their chance to gain real protection, while the Stationers’ Company realized that it needed to remarket itself to retain its power. Thus booksellers petitioned Parliament to establish copyright on the basis of the authors’ rights in their creations. The booksellers did so disingenuously, knowing they could continue to buy the works of authors for little. Authors could transform the world but could not control the production of their works in print. The rebranding worked, and Parliament passed the Statute of Anne in 1710. It granted “authors and their assigns” the exclusive right to print their works for 14 years. While the copyright went to the author, the practical reality was that the author still had little leverage to extract much of the financial benefit from distribution and sale of his work. If the author did not accept the incredibly meager financial terms of the contract with the press authorized to print it, his work would often not reach the public.18 The situation was little different in prerevolutionary France. Robert Darnton writes, “The state had not often shown an enlightened attitude in its attempts to police the printed word.”19 In 1521, the state strategy to “tame the new industry” was to put it under the “surveillance of a medieval body, the university.”20 Then in 1535, the state “responded to the discovery that books could be seditious by deciding to hang anyone who printed them,” and “in 1618 it tried again, this time by confining publishers within the guild, another rather archaic kind of organization.”21 Darnton adds that “the state attempted to bring books under control by developing its own apparatus.”22 Thus control over the printed word rested with the king, who delegated it to his chancellor, who entrusted it to “the Parisian lieutenance-générale de police,” and then later assigned it to the Direction de la librairie.23 Darnton notes, “This bureaucratic entanglement did not choke the power of the guild; on the contrary, the guild continued to hunt out mauvais livres until the 16 17 18 19 20 21 22

23

Id. L. Ray Patterson, Copyright in Historical Perspective 6 n.14 (1968). This varied to a greater or lesser extent depending on the country in question. Robert Darnton, The Literary Underground of the Old Regime 187 (1982). Id. Id. Id. The regulatory regime was even more complicated given there were “rival book-inspectors in the Parlement of Paris, the General Assembly of the Clergy, and other influential institutions,” id. Id.

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Revolution.”24 There were 36 master printers and roughly 100 master booksellers in Paris.25 More than “3,000 edicts and ordinances of all kinds in the eighteenth century alone” helped maintain the power in the guild, whose members “wore leather badges to prove membership in their corps.”26 For example, “[t]he typeface of three ‘I’s must be exactly the same width as one ‘m,’ and the ‘m’ must conform precisely to a model ‘m’ deposited with the syndics and deputies of the guild.”27 When a book received a privilege, “granted by the king’s ‘grace,’” it was registered both with the state and “in the guild’s Chambre syndicale.”28 By 1750, other “graduated nuances of legality” that were recognized by book inspectors included permissions tacites, permissions simples, permission de police, and simples tolérances.29 For example, unlike privilèges, which were “processed formally through the state’s censoring and bureaucratic machinery,” permissions tacites could be granted “for books that censors would not openly certify as inoffensive to morals, religion, or the state.”30 At the time, unlike today, presses were relatively expensive to operate. Thus, by doling out decrees stating that only certain individual printers could legally publish a book, kings were aligning the financial interests of the printers or publishers with their own political goals. In exchange for the exclusive license to print officially sanctioned works, printers were co-opted into supporting the censorship from above. Privileges were ultimately replaced with copyright laws in France, just as had happened in England. This original raison d’être of both privileges and early copyright law, as a tool of thought control, loosened over time, providing more financial rewards to authors and allowing for a greater dissemination of competing ideas. Yet history is rarely tidy. Even during this initial phase of copyright as censorship, certain authors benefited substantially from the government allowing their works to be disseminated. Privileges, or proto-copyright, allowed middle-class philosophers like Erasmus, Diderot, and Voltaire to earn a living from writing, which ultimately made them financially comfortable or even wealthy and hence influential. Some of these authors are the intellectual giants of their era. For example, Rousseau was able to support himself on the royalties from his popular novel Julie. If these great thinkers had depended on financial patronage, they would not have been able to explore their own ideas as thoroughly. Early copyright freed them from the obligation to keep their benefactors’ interests in mind and, in doing so, expanded cultural discourse. Select authors realized the independence enabled by copyright and 24 25 26 27 28 29 30

Id. Id. at 185. Id. Id. at 186. Id. at 186–87. Darnton, supra note 2, at xix–xx. Darnton, supra note 19, at 174.

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sought to protect their works in a copyright-like manner, even before the formal advent of copyright as we now know it. Piracy cut into profits but did not eliminate the value of protection on expression. Although the benefits enabled by protocopyright and copyright were limited by the fact that some of these works were censored by the state, nevertheless, as we have seen with illicit downloading in our age, formal censorship did not stop the works from circulating; it simply limited the circulation and the authors’ benefits. Privileges also assisted in the extinguishing of feudal thought and practice by empowering scholars to advocate against local, feudal law. For example, this precursor to copyright enabled scholars such as Denys Godefroy to edit the Corpus Iuris Civilis, which helped counteract aristocratic private law privileges, such as the right to administer local justice.31 In fact, the term royalties harkens back to this period of alignment of emerging bourgeois and monarchical power that put an end to feudalism. The weakening of feudalism, the development of a commercial society, the consolidation of state power, and the development of Renaissance individualism and humanism spurred the eventual creation of copyright.32 Even though copyright does not select which works it protects in terms of their underlying liberal or illiberal messages, its facilitation of artistic independence for scholars opened up the marketplace of ideas.

copyright’s ironies Just as early copyright as a tool of censorship only incidentally helped enable the High Enlightenment, it also fueled the Low Enlightenment inadvertently. Proletariat pamphlets and books were usually illegal given the crown’s restrictive granting of privilèges. As sanctioned booksellers suppressed unprivileged works, more underground publishers sprang up to serve the growing underground market. Inspired by High Enlightenment ideas and emboldened by the demand for illegally printed works, the literary rabble – whether poets or hacks – could reach a wide audience. In a sense, copyright as a tool of censorship accidently fostered disaffection and solidarity against the elite. The more censorship was emphasized, the greater was the public’s longing to gain glimpses of uncensored reality in the Low Enlightenment works. Officially sanctioned works were often treated with skepticism. Louis XVI’s chief of police, J.-C.-P. Lenoir, noted, “The Parisians had more of a propensity to believe the malicious rumors and libelles that circulated clandestinely than the facts printed 31

32

Godefroy complained to the Geneva authorities about attempted pirated editions of his work. See generally Caroline R. Sherman, The Genealogy of Knowledge: The Godefroy Family, Erudition, and Legal-Historical Service to the State (Jan. 2008) (unpublished Ph.D. thesis, Princeton University) (on file with Mudd Library, Princeton University). Mark Rose, Authors and Owners: The Invention of Copyright 3 (1993).

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and published by order or with the permission of the government.”33 While some works by High Enlightenment authors were censored – for example, Voltaire’s Lettres philosophiques was forbidden – copyright’s early manifestation as a tool of control helped create this division of authors. As a consequence, Europe, during the time, developed an underground book trade that was free of copyright. Many of these illegal books were printed in the Low Countries or Switzerland and circulated widely. Uncensored works also undermined trust in the ancien régime and fostered rebellion. For example, prerevolutionary French legal briefs, factums or mémoires judiciaries, were not subject to censorship, so attorneys would sometimes print voluminous copies and distribute them for free across Paris.34 According to Sarah Maza, “these published trial briefs were issued in quantities that outstripped those of most other kinds of printed matter at the time – press runs of six to ten thousand in the 1770s, up to twenty thousand in the 1780s.”35 Lawyers published them “on behalf of groups or individuals with an interest in publicizing this or that affaire.” Such courtroom narratives were widely read, in part, because the public trusted them more than many officially approved publications, though the depictions of private legal disputes were often highly fictionalized. Notably, the storytelling included political commentary.36 As Maza points out, these legal briefs touched on “big issues”: “a dispute over a rural festival could become an allegory of political regeneration; [and] the defense of a falsely accused female servant in a provincial town could be a vehicle for indicting the whole judicial system of the realm.”37 Maza argues that the briefs’ “peculiar legal status” and “their literary and polemical qualities” allowed them to contribute to “a new public sphere in the decades just before the French Revolution.”38 They did all of this by evading the censorship of early modern copyright. Historical copyright was helpful only in spite of itself, given its origins in censorship. One can plausibly make the claim that modern copyright is doing the reverse. Its intended purpose is to help, yet its effect in poor countries is to censor media by rendering it too expensive to access, and its effect in rich countries is to let corporations control how people spend their waking hours. Like modern copyright, ancient privilèges induced contradictions beyond misalignment of the goals of the law with the practical consequences of the regulation. Some French censors also attempted to pirate works, or, at the very least, selectively enforced bans. For example, Chrétien-Guillaume de Lamoignon de Malesherbes, 33 34

35 36 37 38

Quoted in Darnton, supra note 19, at 201. See generally Sarah Maza, Private Lives and Public Affairs: The Causes Ce´le`bres of Prerevolutionary France (1993). Id. at 2. Id. at 8–9. Id. at 10. Id. at 2–3.

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the Directeur de la librairie, was tasked with destroying Diderot’s Encyclopédie after its permission to be printed was revoked. Instead of faithfully destroying the work, Malesherbes got the word to Diderot that “his papers were about to be seized by the police – and that they could be saved by being deposited with Malesherbes himself, who had just issued the order for their confiscation.”39 Also, before the French Revolution, courts of high justice, called parlements, would write “remonstrances” expressing concerns about aspects of royal decrees. They were a “perfectly legal part of the judicial process,” yet “by the eighteenth century the parlements’ magistrates had taken to publishing remonstrances, which were in theory a private communication from the courts to the monarch.”40 When individual remonstrances were banned, they were published anyway.41 Presently, the same developed country governments that urge kids to get outside and play enact extreme copyright so that corporations can glue kids and adults to screens. The same developing country governments that have been pressured to pass excessive copyright laws fail to enforce the law much of the time. These are symptoms of a diseased law. In middle-income countries, however, a moderate copyright regime can potentially end this gulf between copyright’s purpose and actual effects. By eliminating tiers of authors, as during the Enlightenment, and by having a noble justification – to inspire and educate citizens – a moderate copyright regime can live up to the ideas of the Enlightenment, even if historical copyright could not. I stress that a moderate copyright regime is needed in middle-income countries because the extreme regime currently in place limits artistic production by reinforcing a two-tier hierarchy of privileged and struggling artists. Extreme copyright tilts in favor of corporations, which are more likely to create screen-based forms of entertainment, and against individual artists, who use a range of mediums. This occurs because extreme copyright pressures artists, through threats of penalties for copyright violations, to license portions of others’ works instead of borrowing from each other through doctrines such as fair use and fair dealing. To deep-pocketed entertainment corporations, negotiating and paying for licensing contracts is simply a routine transaction cost, but for individual artists without in-house lawyers and corporate-level budgets, it is a substantial burden. Since borrowing from others’ work is a critical component of any artistic endeavor, individual artists are at a significant disadvantage under extreme copyright protection.42 Even though copyright has an important role to play in middle-income countries, the level of protection needs to be moderate – not the extreme copyright that prevails around the globe today, in 39

40 41 42

Robert Darnton, The Business of Enlightenment: A Publishing History of the Encyclope´die, 1775–1800 12 (1979). Maza, supra note 34, at 5. Id. Extreme copyright also generates enormous other negative harms as discussed earlier – such as impairing education and weakening the political voice of the people.

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countries at every stage of development. If moderate copyright can be realized in middle-income countries, it can spur a local renaissance that expresses the experiences and ideas of a nation in works that resonate with citizens.43

further considerations for moderate copyright Given the advances in basic medical assistance and the spread of information – as simple as the importance of washing one’s hands with soap, boiling water before drinking it, using rehydration tablets when diarrhea strikes, and the germ theory of sickness – the longevity of individuals in developing countries has skyrocketed over the last few decades. For example, in 1980, the average life expectancy was 45 years in Bhutan and 63 years in Tajikistan; by 2017, both had progressed to 71 years.44 This shows not only that significant improvements can happen with little economic growth per capita but also the value of disseminating information widely. As economic growth increases, many fewer children die, and significantly fewer wonder where the next meal will come from. But we must not forget that poverty levels, though reduced, are still high for large portions of middle-income countries. For many people, the daily struggles still border on overwhelming. Mothers are often faced with the decision to buy medicine or food. While circumstances vary within middle-income countries and between different middle-income countries, life, on balance, is still full of challenges but provides more opportunities. The transition from developing to middle-income country is an encouraging landmark, as sustained economic progress brings many other benefits. Life in middle-income countries provides the chance for millions to enter the formal economy because factories are more abundant and markets more robust. Government plays a larger role in society, which not only enables more societal improvement but also allows for more employment possibilities in the public sector. Education nears universality, though widespread efforts are needed to find ways to improve public schools. Health care is open to more and more individuals beyond simply the elite. Sanitation and water systems are improving, while social safety nets begin to gain wider coverage. As infrastructure improves, access to information and entertainment becomes more abundant. In middle-income countries, many or most individuals have access to the internet, TV and radio are broadcast more widely, printed media has a wider 43

44

Nation and nationalism are difficult to pin down. Hugh Seton-Watson believes that no adequate definition can be formulated, yet the concepts are critical and must be deployed to gain a proper understanding of modernism. He believes a “nation exists when a significant number of people in a community consider themselves to form a nation, or behave as if they formed one.” Hugh Seton-Watson, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism 5 (1977). Life Expectancy at Birth, Total (Years), World Bank, https://data.worldbank.org/indicator/SP .DYN.LE00.IN?end=2017&locations=TJ&start=1980 (last visited June 17, 2019).

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distribution, and individuals have more funds to purchase content. Greater access to financial resources, content, and distribution channels dramatically lessens concern that the flow of ideas is being restricted. Thus, in middle-income countries, copyright does not stand in the way of the dissemination of valuable information and liberal values. For reasons that are specific to middle-income countries, addiction to commercial art poses less of a danger than it does in developed countries. For starters, many middle-income countries have not established a culture of corporate copyright that, like Bollywood, produces a steady stream of entertainment or, like Nollywood, pumps out a plethora of relatively low-budget productions. For these generally smaller middle-income countries like Ghana with Gollywood, it could take decades to establish a mature film or TV industry dominated by corporations.45 If a middle-income market is flooded with international art, the overabundance of available entertainment is unlikely to cause systemic overconsumption. It is improbable that most citizens within middle-income countries will have the sheer amount of free time required to match the consumption rates of developed country citizens. Factors restricting leisure time go beyond conventional metrics such as the amount of formal employment, given the greater role of semi-informal and informal employment, the comparative lack of modern time-saving devices, generally higher fertility rates, and less childcare relative to developed countries. Further, middle-income countries do not mandate six or seven weeks of vacation a year or a 35-hour workweek, as some European countries do. Also, the social bonds tend to be stronger in middleincome countries relative to developed countries, as demonstrated by Robert Putnam’s Bowling Alone and the honjok (alone tribe) culture of South Korea’s youth.46 Another significant factor preventing overconsumption is the amount and use of disposable income. The average citizen in a middle-income country simply does not have the purchasing power of a member of the middle class in a developed country. Middle-income country citizens may have some disposable income to spend, but middle-income luxuries such as washing machines, health care, and higher education compete with entertainment. Since copyright in middle-income countries does not block the flow of ideas or induce overconsumption of art, it has an excellent chance of motivating individuals to create. With sustained economic progress, a middle-income country can foster innovative thought and cultural creation – for example, many kids will be able to cut back on work and attend schools, possibly even decent ones.47 Since significantly 45

46

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Even the largest middle-income countries with robust entertainment industries need time to more widely disseminate expertise. See generally Robert D. Putnam, Bowling Alone (2001) and Stella Ko, Photographers Capture the Rise of South Korea’s “Loner” Culture, CNN (July 11, 2018), https://www.cnn .com/style/article/honjok-south-korea-loner-culture/index.html. While developing countries have been able to dramatically increase the number of kids in school, they have largely failed to make many, if not most, of the schools decent. As Charles

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more people are thriving in the formal economy, more discretionary income is available to increase demand for local creations. The robust economy not only stimulates demand for art but also allows a greater choice of career options, enabling some citizens to become artists who are supported through copyright.48 The traditional tension in copyright law – between encouraging artists to create and providing the widest possible access to artwork – is most relevant to middle-income countries.49 Unlike with developing and developed countries, where the central copyright issue is either underconsumption or overconsumption of artwork, the potential positive impact of copyright to forge a tolerant national identity takes center stage. In middle-income countries, the average citizen has an opportunity, under a wellbalanced copyright regime, to contribute to the cultural discourse that creates and expresses her nation. Given the contingency of genuinely novel expression that approaches the sublime or encapsulates new ideas that resonate with a culture, it may be unrealistic to expect more than a handful of artists who have the skill and vision to unify a country as the High Enlightenment authors did. Yet a handful is all that is needed. In addition to encouraging the development of these transformational artists, copyright in middle-income countries will stimulate a creative force comparable to the Low Enlightenment – local artists or less artistically transformational creators who are as able to sound a call for inclusiveness, and the sacrifice and tolerance it requires, as those artists who ultimately become part of national canons.

nationalism versus inclusiveness As Ray Fisman and Miriam Golden note, “It doesn’t take much to get human beings to latch onto a group identity and, as a result, fall into an us-versus-them mentality.”50 The term minimal group paradigm, coined by Henri Tajfel, addresses how little one needs to encourage a group to develop a collective identity.51 For example, Tajfel showed study participants paintings by both Paul Klee and Wassily Kandinsky and asked them which ones they preferred. Afterward, he told the participants “that

48

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Kenny states, “the challenge is no longer staying in school but actually learning something while there.” Charles Kenny, Getting Better: Why Global Development Is Succeeding – And How We Can Improve the World Even More 91 (2012). Further, there are more opportunities to support artists and thinkers who do not rely on copyright, such as academic positions, unrestrained funding from art nonprofits, and day jobs that provide enough schedule flexibility and total number of working hours to sustain artists while allowing them enough time to seriously pursue their calling. For an insightful analysis of conflicting theoretical claims on copyright, see James Grimmelmann, The Ethical Visions of Copyright Law, 77 Fordham L. Rev. 2005 (2009). Ray Fisman & Miriam A. Golden, Corruption: What Everyone Needs to Know 170 (2018). Id.

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they’d be grouped based on their tastes in painting into the Klee Group and the Kandinsky Group.”52 However, Tajfel actually simply randomly grouped them. “Each subject was informed which team she was on, then escorted to a separate cubicle and told to allocate points to other subjects (knowing only their group membership), which would be translated into payments at the end of the experiment.”53 The result was that “Klee subjects handed out rewards to other (supposed) Klee lovers, at the expense of Kandinsky group members.”54 Tajfel’s research into how easily we form groups cuts both ways – it demonstrates how quickly we can be divided, but equally how little it takes for us to identify with each other and unite. It shows that national inclusiveness is an achievable goal. Nationalism evokes strong sentiments. Some thinkers disparage it. Albert Einstein famously said, “Nationalism is an infantile sickness. It is the measles of the human race.”55 Ralph Waldo Emerson concurred: “[W]hen a whole nation is roaring Patriotism at the top of its voice, I am fain to explore the cleanness of its hands and purity of its heart.”56 Other thinkers are more hopeful. Theodore Roosevelt stated, “The New Nationalism puts the national need before sectional or personal advantage.”57 English poet Matthew Arnold wrote, “Nations are not truly great solely because the individuals composing them are numerous, free, and active; but they are great when these numbers, this freedom, and this activity are employed in the service of an ideal higher than that of an ordinary man, taken by himself.”58 These polar opposite dynamics have somehow been labeled with the same moniker. When I talk about nation building and national unity, I do not mean to use the terms in a veiled divisive sense or as a code for racism. Further, I am not endorsing any past nationalistic movements. Many had hidden or overt strands of noninclusiveness that were poisonous and dangerous. For example, the National Socialism of the Reich was unequivocally repugnant. While these past and present associations with nationalism are unfortunate, they cannot scupper the positive ideals of creating a sense of solidarity and inclusiveness among all individuals who happen to live within certain political borders. In fact, the idea, once adopted, can positively force elites to recognize how we are all equal, as Benedict Anderson has shown in a variety of contexts. For example, San Martín “decreed in 1821 that ‘in the future the aborigines shall not be called Indians or natives; they are children and citizens of 52 53 54 55

56

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Id. Id. Id. Quoted in Helen Dukas & Banesh Hoffmann, Albert Einstein: The Human Side 38 (1979). Ralph Waldo Emerson, Journal Entry, Dec. 10, 1824, in The Heart of Emerson’s Journals 25 (Bliss Perry ed., photo. reprint 1995) (1958). Theodore Roosevelt, Speech, Osawatomie, Kansas, August 31, 1910, in The New Nationalism 25 (1911). Matthew Arnold, Democracy, in Culture and Anarchy and Other Writings 14 (Stefan Collini ed., Cambridge University Press 1993) (1861).

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Peru and they shall be known as Peruvians.’”59 Once enough revolutionaries took this position, “the logic of San Martín’s Peruvianization was at work.”60 Anderson offers similar examples: “Even backward and reactionary Hungarian and Polish gentries were hard put to it not to make a show of ‘inviting in’ (if only to the pantry) their oppressed compatriots.”61 These national movements, Anderson argues, led to belief in equality: “If ‘Hungarians’ deserved a national state, then that meant Hungarians, all of them”; it also meant the elimination of serfdom, increased access to education for all, and universal suffrage.62 However, to signal the distinction between the despicable and the positive, I will avoid the term nationalism and instead use related terms, such as national unity, national inclusiveness, and solidarity. A problem in numerous countries is that citizens still do not see themselves first as citizens and then as members of ethnic, racial, religious, tribal, socioeconomic, political, or other groups. In a country with abundant resources, robust checks and balances, and an effective bureaucracy and political class that follow the rule of law, having individuals not identify first and foremost as citizens might be inconsequential. By contrast, in countries struggling to reduce corruption and improve governance, allegiance to other groups ahead of the state leads to disaster.63 Sadly, the vast majority of countries of the world are in this latter position. Take Nigeria as an example. It is well known for its massive oil receipts that rarely make it to the people but end up in the hands of only a select elite. Through the industriousness of its people, the country as a whole has managed to grow somewhat, yet it is stuck with corruption and poor governance. Almost everything good that occurs in the country is in spite of the government. If most citizens identify first and foremost as citizens, they would be less apt to pilfer government coffers. What occurs too often now is that once a politician from a particular tribe is elected to office or nominated to a position of power, he seeks to illicitly distribute state funds to his group, in part as payment for their support of his candidacy and in part because of tradition and historical precedent. Former Nigerian Finance Minister Ngozi Okonjo-Iweala, a well-known anti-corruption advocate whose 83-year-old mother was kidnapped in an attempt to force her resignation, stated that in “societies where extended family, group, and village ties are very strong, sticking to principles is not as easy or straightforward as it sounds.”64 If citizens selected rulers not for their religious or ethnic backgrounds, there would 59 60 61 62 63

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Benedict Anderson, Imagined Communities 49–50 (1991). Id. at 81. Id. Id. at 81–82. “Nations with a greater mix of ethnic groups (and, as a result, a more varied mix of group allegiances) may be more vulnerable to corruption.” Fisman & Golden, supra note 50, at 169. Ngozi Okonjo-Iweala, Fighting Corruption Is Dangerous 128 (2018) She said that she “was especially supported by [her] parents and immediate family members, who ran interference on this with extended family, friends, and villagers,” id. at 128–29.

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be less of an expectation that such bribes should occur. If moderate copyright laws can spur individual artists to address this concern through their art, the returns could be great. Given the radical difference between national inclusiveness and ugly nationalism, assuming that the good form of nation building may be benefited by moderate copyright laws is putting a great deal of faith in artists, philosophers, lawyers, policy experts, and historians. Granted the complexity and variety of humankind, some artists will inevitably not subscribe to visions of inclusiveness. This does not mean that we have to give up on artists and intellectuals as a general force that will stand up for the ideals of equality, freedom, human rights, and national inclusiveness. If we leave such an idealistic task to those with political power, is nation building more likely to be unifying and inclusive or a ploy to consolidate power and strip rights away from individuals? In fact, many historical examples of the birth of specific nation-building movements were in opposition to kings, empires, czars, despots, and dictators. In Benedict Anderson’s famous phrase, nations are “imagined communities” – and who better to conceive, conjure up, and imagine such communities than those who express dreams, ideas, and beauty through words, music, and images? If Pablo Neruda is correct, unity is essential to art: “Poetry is an act of peace. Peace goes into the making of a poet as flour goes into the making of bread.”65 Moreover, the brilliance of moderate copyright is that it will encourage artists to create works that would appeal to broad audiences; copyright aligns the artist’s financial independence with the goal of fostering national inclusiveness.

post-nation-state world There are those who view nation-states as a necessary intermediate step in the evolution of even greater human understanding and global inclusiveness. Such cosmopolitans want a world where everyone looks out for each other and hence militaries and borders are not necessary.66 They look to Costa Rica, without a military since 1948, as an example of how such policies might even strengthen harmony, given the strife and conflict north of its borders in Central America.67 Some conceive of the creation of a global government. Others envision an enlightened anarchy – there would be no need for taxes, police, or courts because humans should just help each other. 65

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Pablo Neruda, Memoirs 135, 137 (Hardie St. Martin trans., Farrar, Strauss & Giroux 1977) (1974). On cosmopolitanism and ethics, see Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (2006). Amanda Trejos, Why Getting Rid of Costa Rica’s Army 70 Years Ago Has Been Such a Success, USA Today (Jan. 5, 2018, 10:28 AM), https://www.usatoday.com/story/news/world/2018/01/05/ costa-rica-celebrate-70-years-no-army/977107001/.

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There might be tremendous benefits from conceiving of ourselves as global citizens, in whole or in part. For example, just as national citizenship contributed to the rise of universal education and social support systems for the poor in developed countries, a sense of world citizenship, even without its political realization, could help individuals care more about the global environmental impacts of their actions. Actual political integration across the planet could in theory solve intractable problems, such as war, that are at least in part products of our current international order.68 Of course, if the full political integration of nation-states ever occurred, it could bring about tremendous risks. For example, the event of a coup d’état of a global government could in an instant extinguish the light of democracy across the planet – Kant’s paradox about perpetual peace. Further, such a dystopian event could be harder to recover from if there were no independent sources of political power outside of the global system – that is, no democratic states not part of the global government. The second formulation of a post-nation-centered world – harmonious global anarchy – is romantic. Hypothetically, a global Rousseauian state of nature without the need for formal structures to protect the weak could emerge only if everyone concentrated on improving themselves and gave up attempting to gain power over others. It could require forsaking competition for cooperation, private ownership for collective stewardship. Or it could entail informal agreements about what the boundaries of competition are – for example, everyone would have to agree not to act monopolistically, price gouge, or compete unfairly in the market. Without taking a stance on whether there should be a post-nation-state world, how it could be brought about, and what it might look like, I believe we cannot avoid our present reality of living in a world of nation-states and the potential, contingent benefits of national unity and inclusion. World War I saw imperialism knocked off its privileged perch within the international order, while World War II facilitated the dramatic acceleration in the rise of the nation-state. For the foreseeable future, we are stuck with the world we have, which rests on nation-states, even those formed by former imperial powers that arbitrarily clumped disparate groups together. In this reality, the best policy is national solidarity and inclusiveness. Patriotism is such a powerful, animating concept that countless individuals have volunteered to die for their country and to protect fellow citizens they did not know. Plus, consider the alternatives. Although there are cases of states breaking up peacefully, as when Czechoslovakia split into Slovakia and the Czech Republic in 1993, the norm of disintegration is disaster. The tragedies of the former Yugoslavia, South Sudan, and Timor-Leste are what we expect – war crimes and crimes

68

See generally Gordon L. Anderson, The Idea of the Nation-State Is an Obstacle to Peace, 23 Int’l J. World Peace 75 (2006).

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against humanity.69 Our existing nation-state-based international order does not presuppose national inclusiveness. In its absence, citizens have the choice to either advocate for inclusiveness or revolt. Given that the history of major revolution is little better than that of nations breaking up, the choice is easy.

literary examples Robert Cover believed: No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.70

Laws enshrine our values. Cover reminds us that these values do not come out of the ether. Nor do laws on their own alter behavior or beliefs. We need to encourage cultural norms. Extending Cover’s view, I would argue that national unity and inclusion need art to relay and create the stories that bind people together in solidarity. Artwork that aims to inspire a sense of national unity and inclusiveness can be quite explicit about it. For example, works written before the end of colonialism squarely addressed the many inequalities in the political system and how independence was the only just path forward. Consider Frantz Fanon’s The Wretched of the Earth, written while Algeria was fighting for independence from France: We must leave our dreams and abandon our old beliefs and friendships from the time before life began. Let us waste no time in sterile litanies and nauseating mimicry. Leave this Europe where they are never done talking of Man, yet murder men everywhere they find them, at the corner of every one of their own streets, in all the corners of the globe. For centuries they have stifled almost the whole of humanity in the name of a so-called spiritual experience. Look at them today swaying between atomic and spiritual disintegration . . .. Come, then, comrades, the European game has finally ended; we must find something different. We today can do everything, so long as we do not imitate Europe . . .. Yet it is very true that we need a model, and that we want blueprints and examples . . .. Let us decide not to imitate Europe; let us combine our muscles and our brains in a new direction . . .. 69

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See generally Dermot Groome, Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?, 31 Fordham Int’l L.J. 911 (2007). Robert Cover, The Supreme Court, 1982 Term – Foreword: Nomos and Narrative 97 Harv. L. Rev. 4 (1983).

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All the elements of a solution to the great problems of humanity have, at different times, existed in European thought. But Europeans have not carried out in practice the mission which fell to them, which consisted of bringing their whole weight to bear violently upon these elements, of modifying their arrangement and their nature, of changing them and, finally, of bringing the problem of mankind to an infinitely higher plane . . .. No, there is no question of a return to Nature. It is simply a very concrete question of not dragging men towards mutilation, of not imposing upon the brain rhythms which very quickly obliterate it and wreck it. The pretext of catching up must not be used to push man around, to tear him away from himself or from his privacy, to break and kill him . . .. It is a question of the Third World starting a new history of Man, a history which will have regard to the sometimes prodigious theses which Europe has put forward, but which will also not forget Europe’s crimes, of which the most horrible was committed in the heart of man, and consisted of the pathological tearing apart of his functions and the crumbling away of his unity. And in the framework of the collectivity there were the differentiations, the stratification and the bloodthirsty tensions fed by classes; and finally, on the immense scale of humanity, there were racial hatreds, slavery, exploitation and above all the bloodless genocide which consisted in the setting aside of fifteen thousand millions of men . . .. For Europe, for ourselves and for humanity, comrades, we must turn over a new leaf, we must work out new concepts, and try to set afoot a new man.71

Fanon wrote this for a particular historical moment, but similar strong calls for national inclusion can occur within a country that already has freedom from external actors but suffers from a grossly unequal distribution of power and wealth within its borders. For example, works by John Steinbeck, Charles Dickens, and Adolfo Pérez Esquivel played this critical role in their national cultures. Such artwork can remind us that extreme differences in opportunity are not the byproduct of some natural law but are socially constructed. Art can touch on a host of substantive social problems including access to education, health care, and courts. Various approaches to art inspire inclusion through highlighting inequality, corruption, and injustice; others inspire unity without tying it to the glaring troubles created by tragically imperfect economic and political systems – for example, through highlighting the good that people do. In other instances, art can be quite indirect in conveying its message. This can occur in myriad ways. As Marcel Proust felt, “An artist has no need to express his thought directly in a work for the work to reflect its quality; it has even been said that the highest praise of God is to be found in the denial of Him by the atheist, who considers creation to be perfect enough to dispense with a Creator.”72 71 72

Frantz Fanon, The Wretched of the Earth 311–16 (1963). Marcel Proust, The Guermantes Way 457 (William C. Carter ed., C.K. Scott Moncrieff trans., Yale University Press 2018) (1920–21).

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Following are two examples of literature subtly touching on national unity.73 Both show how art can help a community.74 The first is from José Rizal, who is considered the Father of Filipino Nationalism.75 Noli Me Tángere, the first novel written by a Filipino, is “regarded as the greatest achievement of modern Filipino literature.”76 It begins: Towards the end of October, Don Santiago de los Santos, popularly known as Capitan Tiago, was giving a dinner party. Although, contrary to his usual practice, he had announced it only that afternoon, it was already the subject of every conversation in Binondo, in other quarters of the city, and even in [the walled inner city of] Intramuros. In those days Capitan Tiago had the reputation of a lavish host. It was known that his house, like his country, closed its doors to nothing, except to commerce and to any new or daring idea. So the news coursed like an electric shock through the community of parasites, spongers, and gatecrashers whom God, in His infinite goodness, created, and so tenderly multiplies in Manila. Some hunted polish for their boots, others looked for collar-buttons and cravats. But one and all were preoccupied with the problem of how to greet their host with the familiarity required to create the appearance of longstanding friendship, or, if need be, to excuse themselves for not having arrived earlier. The dinner was being given at a house on Anloague Street. Since we do not recall the street number, we shall describe it in such a way that it may still be recognized – that is, if earthquakes have not yet destroyed it. We do not believe that its owner will have had it torn down, since such work is usually left to God or to Nature, which, besides, holds many contracts with our Government.77

In describing how quickly and widely the news travels and people react, Rizal implicitly identifies the host, the gossipers, and the partygoers as fellow citizens. Benedict Anderson writes, “It should suffice to note that right from the start the image (wholly new to Filipino writing) of a dinner party being discussed by hundreds of unnamed people, who do not know each other, in quite different parts of Manila, in a particular month of a particular decade, immediately conjures up the imagined community.”78 Anderson notes that Rizal includes his readers in this community: 73

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I am not claiming that these examples of novels exist because of copyright, but rather they are examples of works about nations that could come about with moderate copyright. Nothing is inevitable, including the effects of copyright. I am simply suggesting that moderate copyright might be a factor giving artists within middle-income countries a financial incentive to stay with the vocation. The inducement might be a practical means to enable them to create, not the reason they create. Both examples come from Benedict Anderson given his incisiveness in analyzing the origins of nationalism. See generally B. Anderson, supra note 59. Id. at 26. Id. Id. at 26–27 (Anderson provides his own translation and cites Jose´ Rizal, Noli Me Ta´ngere 1 (Instituto Nacional de Historia, 1978) (1887)). Id. at .

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in the phrase “a house on Anloague Street” which “we shall describe in such a way that it may still be recognized,” the would-be recognizers are we-Filipino-readers. The casual progression of this house from the “interior” time of the novel to the “exterior” time of the [Manila] reader’s everyday life gives a hypnotic confirmation of the solidity of a single community, embracing characters, author and readers, moving onward through calendrical time.79

Finally, Anderson notes, “While Rizal has not the faintest idea of his readers’ individual identities, he writes to them with an ironical intimacy, as though their relationships with each other are not in the smallest degree problematic.”80 The second example is from “Semarang Hitam” (“Black Semarang”), a short story by Indonesian author Marco Kartodikromo, whose pen name was Mas Marco. The story begins: It was 7 o’clock, Saturday evening; young people in Semarang never stayed at home on Saturday night. On this night however nobody was about. Because the heavy day-long rain had made the roads wet and very slippery, all had stayed at home. For the workers in shops and offices Saturday morning was a time of anticipation – anticipating their leisure and the fun of walking around the city in the evening, but on this night they were to be disappointed – because of lethargy caused by the bad weather and the sticky roads in the kampungs. The main roads usually crammed with all sorts of traffic, the footpaths usually teeming with people, all were deserted. Now and then the crack of a horse-cab’s whip could be heard spurring a horse on its way – or the clip-clop of horses’ hooves pulling carriages along. Semarang was deserted. The light from the rows of gas lamps shone straight down on the shining asphalt road. Occasionally the clear light from the gas lamps was dimmed as the wind blew from the east . . .. A young man was seated on a long rattan lounge reading a newspaper. He was totally engrossed. His occasional anger and at other times smiles were a sure sign of his deep interest in the story. He turned the pages of the newspaper, thinking that perhaps he could find something that would stop him feeling so miserable. All of a sudden he came upon an article entitled: PROSPERITY A destitute vagrant became ill and died on the side of the road from exposure. The young man was moved by this brief report. He could just imagine the suffering of the poor soul as he lay dying on the side of the road . . .. One moment he felt an explosive anger well up inside. Another moment he felt pity. Yet another moment his anger was directed at the social system which gave rise to such poverty, while making a small group of people wealthy.81 79 80 81

Id. Id. 27–28. Id. at 31–32 (quoting Mas Marco Kartodikromo, Three Early Indonesian Short Stories by Mas Marco Kartodikromo 7 (Paul Tickell trans., Centre of Southeast Asian Studies, Monash University, Working Paper No. 23, 1981) (1924)).

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Here we see an implicit call for inclusive unity. In this passage, the author shows that reading a news story during leisure time causes a member of Semarang’s working class, or any newspaper or story reader, to feel empathy and solidarity with the poor and homeless. Marco’s unnamed “young man” is one of the “young people in Semarang,” one of many “workers in shops and offices” who are stuck indoors on a wet Saturday night. He feels “miserable” because “bad weather and sticky roads” have stopped him from going out – until he reads about a “destitute vagrant” who “died on the side of the road from exposure.” The story makes him “imagine the suffering of the poor soul”; it turns his self-pity into sympathy for the vagrant and “explosive anger” at the injustice of “the social system.” As Anderson points out, Marco’s anonymous hero “belongs to the collective body of readers of Indonesian, and thus, implicitly, an embryonic Indonesian ‘imagined community.’”82 Anderson writes: “Notice that Marco feels no need to specify this community by name: it is already there. (Even if polylingual Dutch colonial censors could join his readership, they are excluded from this ‘ourness,’ as can be seen from the fact that the young man’s anger is directed at ‘the,’ not ‘our,’ social system.)”83 Anderson believes “fiction seeps quietly and continuously into reality, creating that remarkable confidence of community in anonymity which is the hallmark of modern nations.”84 His mode of analysis in these examples could easily be applied to other transformative works, such as Gabriel García Márquez’s Love in the Time of Cholera, Chinua Achebe’s Things Fall Apart, and Derek Walcott’s Dream on Monkey Mountain.

prejudice reduction and inclusiveness An inclusive sense of national unity is more than simply the lack of prejudice. Further, it is possible that a sense of national unity and inclusiveness can be shared by disparate groups who hold some prejudice against others. Yet inclusiveness and prejudice are inextricably linked. Whereas Robert Jensen and Emily Oster’s study, mentioned in the last chapter, speaks to the power of entertainment to inspire the oppressed to change their values – for example, a switch to the belief that all genders are equal – the work of Elizabeth Levy Paluck argues that exposure to entertainment encourages the oppressors to improve their behavior without necessarily convincing them to change their personally held values. Paluck’s seminal study entailed working with the nonprofit La Benevolencija, which created a year-long soap opera for radio in post-genocide Rwanda.85 Paluck 82 83 84 85

Id. at 32. Id. Id. at 36. Elizabeth Levy Paluck, Reducing Intergroup Prejudice and Conflict Using the Media: A Field Experiment in Rwanda, 96 J. Personality & Soc. Psychol. 574, 574 (2009). See also Elizabeth Levy Paluck & Donald P. Green, Deference, Dissent, and Dispute Resolution: An

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examined the impact of the soap opera on listeners, compared to a control group that listened to a radio program about AIDS and reproductive health for one year instead.86 Participants were randomly assigned to hear either the soap opera or the control program. They listened to the content in groups. The soap, titled Musekeweya (New Dawn), was “designed to address the mistrust, lack of communication and interaction, and trauma left by the genocide.”87 It depicted two fictional communities, harking back to the recent tragedy between Tutsis and Hutus. The more prosperous community is attacked by the other after disputes over land rights and bias in the granting of government favors.88 In the face of tensions, “some characters band together across community lines, communicate with one another, and speak out against the powerful leaders who advocate violence.”89 The program portrayed characters and events realistically and included numerous “educational messages that [were] aimed at influencing listeners’ beliefs about the roots and prevention of prejudice and violence and the symptoms of trauma and paths to healing.”90 By doing so, it was “positioned to change perceptions of social norms – that is, to demonstrate to listeners what their peers do (descriptive norms) and should do (prescriptive norms) in situations that many real Rwandans face.”91 Paluck’s study “found that the reconciliation radio program did not change listeners’ personal beliefs regarding the radio program’s messages but that it did influence listeners’ perceptions of social norms regarding behaviors depicted by the radio characters.”92 Moreover, this perceptual shift steered listeners’ actions and behaviors “in the direction of these social norm perceptions.”93 Specifically in regard to building inclusiveness, Paluck’s results are encouraging – they show that education entertainment can change people’s views about what is socially acceptable and get people to act in ways that are consistent with the newly perceived social norm. In essence, it might be impossible to remove prejudice from the heart of every citizen, but it is possible to change people’s actions so that they are consistent with a social norm of inclusiveness.94 And the more people’s actions harmonize with and

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Experimental Intervention Using Mass Media to Change Norms and Behavior in Rwanda, 103 Amer. Pol. Sci. Rev. 622 (2009). Paluck, supra note 85, at 578. Id. at 577. Id. Id. Id. Id. Elizabeth Levy Paluck, What’s in a Norm? Sources and Processes of Norm Change, 96 J. Personality & Soc. Psychol. 594, 594 (2009). Id. Also, newer work by Paluck shows that entertainment can get viewers to at least express “more positive attitudes” about government, not just alter their behavior. See generally Matthew D. Trujillo & Elizabeth Levy Paluck, The Devil Knows Best: Experimental Effects of a Televised Soap Opera on Latino Attitudes toward Government and Support for the 2010 U.S. Census, 12

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reinforce this new norm, the greater the likelihood that intergroup communication will improve and prejudice will decline. Paluck’s study intimates that social reform initiatives such as education entertainment can reduce animosity and bring citizens together in their collective actions by persuading citizens that a social norm of inclusiveness exists.95 The field of doubleblind clinical psychological studies on such topics is new, yet the results are hopeful. As Paluck acknowledges, the fact that a shift in perceptions of social norms influenced behaviors without altering values challenges “modern-day psychology [that] emphasizes individual beliefs and attitudes.”96 This more sobering aspect of her findings can be interpreted in a more positive light, as Ervin Staub and Laurie Anne Pearlman have shown: Paluck correctly suggested that normative pressure, for example, through the media, can either promote or restrain violence by groups. But this is exactly what is usually missing in a society as increasing hostility and violence evolve or after violence as continuing hostility and social processes make renewed violence probable. In such situations, individuals must act contrary to social norms. This requires personal values.97

Redefining Paluck’s distinction between personal values and social norms, Staub and Pearlman argue that the radio program’s combination of education and storytelling “produced personal beliefs about the desirability of certain behaviors and outcomes, that is, values.”98 The fact “that individual beliefs and/or values were affected, rather than norms that would have arisen out of group processes, means that educational media can affect individual listeners.”99 As individuals “join likeminded others (or, if possible, engage in public discussion), shared beliefs, values, and norms can develop.”100 Whereas Jensen and Oster’s study concentrated on the values of the oppressed in rural India, Paluck’s study examined the values of a random sampling of Rwanda’s postgenocide population. This difference in study subjects offers another way to

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Analysis Soc. Issues & Pub. Pol’y 113 (2011). They “suggest that narrative entertainment media is a potent influence channel that is met by relatively less resistance compared to other channels. Social psychological theories explain that the potency of and lack of resistance to influence from soap operas springs from their status as entertaining, liked, and trusted shows that are communally watched and discussed,” id. This shares familiarities with Alexis de Tocqueville’s principle of self-interest rightly understood. See generally Alexis de Tocqueville, Democracy in America (Harvey C. Mansfield & Delba Winthrop, eds., University of Chicago Press 2000) (1835 & 1840). Paluck, supra note 85, at 583. Ervin Staub & Laurie Anne Pearlman, Reducing Intergroup Prejudice and Conflict: A Commentary, 96 J. Personality & Soc. Psychol. 588, 592 (2009) (citing Ervin Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence (1989)). Id. at 591. Id. at 592. Id.

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understand why, in the short term, the study in India found changes in personal values but the study in Rwanda found changes in perceptions and behavior only. If you are oppressed and presented with a new social norm, there is little stopping you from seeing the appeal of how you, the oppressed, should have equality and your human rights respected. If you are an oppressor, you might adjust your behavior to align with equality for women, for example, but without internalizing it as a new value – that is, the logic of José de San Martín’s nudging of revolutionaries in other countries to unite with the oppressed in their struggle for freedom. It makes sense that oppressors might be slower to change their values because they are benefiting from prejudice. Yet it also seems plausible that, as the oppressors develop new habits of behaving and acting, in an Aristotelian sense, they will change their values toward the good over time.101

how corporate entertainment might dilute inclusive messages William Blake reminds us that the health of nations depends on freedom of artistic expression: “Poetry fettered, fetters the human race! Nations are destroyed, or flourish, in proportion as their poetry, painting, and music are destroyed or flourish!”102 In the contemporary corporate world, we can anticipate that art might be fettered in two primary ways: either by corporate decrees requiring formulaic expression calculated to appeal to the biggest audiences or by CEOs deciding to publicize their own political views through their companies’ products.

Not Tailoring Content Enough Early copyright helped foster a sense of national identity in Europe at a time when there was no television, film, and videogames, no screen-based forms of art, and no entertainment multinationals. This brings up an important consideration. Can moderate copyright law effectively promote inclusiveness if individuals mostly consume corporate works? 101

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There are other differences that could have been important. Jensen and Oster’s study dealt with domestic and international media, while Paluck’s examined one piece of entertainment education. Also, advocacy for gender equality might be different from advocacy for reducing prejudice among ethnic groups. Finally, Paluck’s study entailed listening to the radio program in groups. Staub and Pearlman suggest more research should be done on this last distinction: “Researchers should compare the behavior of people listening to educational radio dramas together and the behavior of people listening alone. If group listening amplified the effects, assessing group behavior can point to processes by which it does so,” id. William Blake, To the Public [Preface to Jerusalem], in The Complete Poetry and Prose of William Blake 146 (David V. Erdman ed., Anchor Books 1988) (1815) (spelling and capitalization modernized).

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Unless corporations have an unusually enlightened CEO or are forced by legislation to consider other issues, they will focus only on profit. This is not because they are evil. Rather, they see it as the responsible thing to do from an investor’s perspective. Consider Pablo Picasso’s vision of computers: “[T]hey are useless. They can only give you answers.”103 Corporations are not optimized to question; they are geared toward the answer, which in their case is always profit. While the corporate entity is squarely focused on cash, artists within the corporate machine might be more expansive in their thinking – but only to the extent that they are allowed to be so. Their corporate bosses will be primarily concerned that their creations are as profitable as possible. As long as this requirement is met, bosses might not care whether the artists weave story arcs that touch on inclusion and forging a national identity, unless doing so expands or contracts the potential audience. Within a domestic context, such attention to profit should lead to corporate works that attempt to appeal to as many citizens as possible within the nation’s borders. Fortunately, there are some indications that Bollywood and Nollywood understand this role for artists.104 Omotola Ekeinde, a Nollywood star, has “encouraged policymakers to work with the industry to reach large audiences.”105 Further, the World Bank believes that “Bollywood is betting on mass media for positive behavior change.”106 Nollywood and Bollywood’s early awareness of the power of art bodes well for their willingness to give their artists the freedom to help forge greater inclusiveness in their countries. One concern is that middle-income entertainment corporations would not tailor their content enough to their home markets – that they would shift their focus toward selling to global markets. This might lead them to craft stories for a broader, more generic audience. Middle-income country corporate artists would generally look to establish a foothold in local markets first because doing so allows them to draw from their own experience to craft works that express their culture. Furthermore, Bollywood 103 104

Quoted in William Fifield, In Search of Genius 145 (1982). Olufunmilayo B. Arewa states, Nollywood films reflect contemporary African contexts and represent cultural expressions derived from a region for which marginalization has been far too common during the colonial and post-colonial periods. Nollywood reflects a diversity of production and consumption facilitated by digital technologies and cultural configurations that may arise with the agency permitted by forms of widely distributed technologies of cultural production. Such technologies enable the development of cultural practices and industries that may be removed from dominant conceptions about how culture is or should be produced.

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Olufunmilayo B. Arewa, Nollywood and African Cinema: Cultural Diversity and the Global Entertainment Industry, in Diversity in Intellectual Property: Identities, Interests, and Intersections 367, 382–83 (Irene Calboli & Srividhya Ragavan eds., 2015). Entertainment Education, The World Bank (last updated Apr. 5, 2018), https://www.worldbank .org/en/research/dime/brief/edu-tainment. Id.

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has no incentive to risk alienating its domestic audience by giving up its distinct dance routines and songs for the sake of international consumers who may never materialize. Of course, Bollywood is interested in exporting its domestically tailored content, but the aim is to find an audience abroad for what it creates now, not to transform its expressive expertise to appeal to the uncertain tastes of an international audience. This is not to say that middle-income country entertainment corporations would not eventually alter their fare expressly to appeal more to international markets, yet this cannot successfully happen overnight. Even if all developed countries dramatically reduced copyright, stemming competition from abroad for middle-income country artists, it would take a long time for a decline in locally targeted productions to become a concern. There are not many middle-income country entertainment powerhouses, plus it would take years for new ones to grow.

Tailoring Content Too Much With the election of President Donald Trump, media outlets from both sides of the political aisle quickly learned just how much polarization pays. The more coverage news channels from both political aisles lavished on Trump, the more their profits rose. The same happened as they ramped up the partisanship. There is a danger that this polarization could spread throughout the corporate entertainment sphere – that is, that entertainment corporations would borrow this strategy from news outlets. If this occurred, it would lead to the exact opposite of what middle-income countries need. It is difficult to know the likelihood of entertainment corporations sowing divisiveness, because news outlets rely on copyright less than entertainment companies do.107 This is because reporting is supposed to be about facts, while entertainment is more on the expressive side of the idea-expression spectrum. Ideas and facts cannot receive copyright protection, but the individualized expression of ideas and facts can.108 The churn of events, political machinations, partisan vitriol, and public opinion is so quick and constant that news outlets do not need protection of their particularized expression of facts three days from now, let alone 95 years later (the length of corporate copyright in the United States), because consumers want to listen to today’s political commentary, not yesterday’s. News outlets make money analyzing President Trump’s tweets from an hour ago, not from last week. 107

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Yet there has been a concerning trend toward less inclusive politicians in key middle-income countries, such as President Jair Bolsonaro in Brazil and President Rodrigo Duterte in the Philippines. The famous Supreme Court legal battle International News Service v. Associated Press highlighted the reality that facts are king in news. It also reinforced that copyright protects only expression, not facts, through the poignant reality that AP did not even bother to attempt to sue INS for copyright infringement. See generally INS v. AP, 248 U.S. 215 (1918). See also Will Slauter, Who Owns the News?: A History of Copyright (2019).

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Given these differing business models for news outlets and entertainment corporations, there is optimism that corporate entertainment can largely resist polarization and help solidify unity. Entertainment companies know they will lose consumers if their products are identified with one political position. This is why most companies, not just Hollywood but car and refrigerator manufacturers, have been reluctant to jump into political products or to have their CEOs espouse their own political views publicly.109 There are exceptions – for example, Nike launched an ad campaign around Colin Kaepernick, and the CEO of Chick-fil-A publicly articulated his religious views against gay marriage.110 In both examples, it appears that corporate executives made such a stance because they genuinely wanted to articulate their deeply held beliefs, irrespective of the ramifications on profits. While Nike experienced a bump in stock market capitalization after its Kaepernick ads began to run, the long-term consequences are unknowable.111 Whether or not these two concerns happen – middle-income entertainment firms stop tailoring their content to their domestic markets or start tailoring their content to partisan divisions – good will still comes from the overall policy of moderate copyright, though it might not be as effective in unifying citizens. However, there will always be individual artists in middle-income countries acting as a counterweight by creating with the aim to inspire their communities. Thus, even if moderate copyright cannot be as effective as it was centuries ago in this regard, it can still help and might be one of the most important policies for achieving this end.

caveats I am not claiming that artists and intellectuals are perfectly positioned to build a sense of inclusive belonging among disparate individuals; I am simply arguing that they are best positioned to do so. Nor am I claiming that scholars and novelists will 109

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There is a growing, less confrontational approach where companies offer customers options such as offsetting their carbon emissions, or do so automatically. See Steven Mufson, As Climate Changes, So Do Company Lines, Wash. Post, June 16, 2019, at G1. Gaby Del Valle, Chick-fil-A’s Many Controversies, Explained, Vox (May 29, 2019, 2:20 PM), https://www.vox.com/the-goods/2019/5/29/18644354/chick-fil-a-anti-gay-donations-homophobiadan-cathy. Yet established firms might be forced to take a stance if start-ups in their field do so first. For example, a fledgling competitor of a leading soap company might peg their growth model to explicitly taking a political stance on one or more issues. Such a plan would be “Buy Hawk Soap, Support Domestic Surveillance of Citizens.” If the message persuaded a large enough segment of the population to switch soap brands, the established soap multinationals might determine that their best response would be to take an explicit political stance, at least with a new line of soap. The more such a strategy worked for start-ups, the more it would mushroom across industries. Some might view this politicization of corporate America as a race to the bottom, others might welcome the opportunity to support companies that share their values. Either way, if this occurred among entertainment corporations, such a trend could destroy any chances that most firms would help cultivate inclusion and national unity – for example, some companies might advocate for inclusiveness, while others might do the opposite.

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inevitably take on such reform; I am arguing that they might and that copyright could help sway them to do so. Also, even masterworks can fail to inspire. Such uncertainty is present whenever law is used as an incentive, but the contingency within middle-income countries is worth the risk of motivating cultural development that might not occur but for the attempt. I am also not claiming that only moderate copyright leads to inclusiveness or that it is even the main tool. There are many factors that can precipitate national unity besides art, as will be discussed later. Further, art that attempts to bind individuals together can be found in many circumstances that do not predominately rely on copyright, even if the creations are technically protected by it. The advent of nationalism in South America at the turn of the nineteenth century looked very different from calls for national unity in Europe, where, similarly, French nationalism looked different from Russian.112 Nor am I suggesting that a moderate degree of copyright protection inevitably foments inclusion. As George Steiner reflected, “We know that a man can read Goethe or Rilke in the evening, that he can play Bach and Schubert, and go to his day’s work at Auschwitz in the morning.”113 The apex in copyright’s arc could collapse. I am only arguing that the approach toward regulating artistic creation likely to bring the most benefits in middle-income countries is a moderate degree of copyright protection. Finally, I am not insisting that the modern equivalents of High Enlightenment works are any more valuable than the contemporary equivalents of Low Enlightenment works or vice versa.114 Voltaire and I part ways here: he had scathing words for Low Enlightenment authors, “plac[ing] ‘the miserable species that writes for a living’ – the ‘dregs of humanity,’ ‘the riff-raff literature’ – at a social level below prostitutes.”115 But he was wrong to imagine that a society could thrive without popular culture. Rather, we should think about middle-income countries as striving to reverse, through cultural integration on all levels, the process described by English historian Arnold J. Toynbee: “The nature of the breakdowns of civilizations 112 113 114

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See generally B. Anderson, supra note 59. George Steiner, Language and Silence ix (1967). Copyright in middle-income countries today may not operate in precisely the same manner to open up political dialogue as it did for Europe hundreds of years ago. Back then, the means of creation, communication, and dissemination were slow and costly, and the reach was limited. Today, digital devices and the internet have made production and distribution quick and easy, yet we have not seen a collapse of entertainment giants. In fact, we are seeing a resurgence in profitability in fields such as music that a decade ago were thought to be on life support. In addition, there appear to be no serious considerations that might prevent copyright from helping middle-income countries build solidarity. The same can be said about the existence of new art forms – there is no obvious reason copyright’s magic will break down in middleincome countries today. I simply bring up both the issues of new art forms and new distribution methods in an abundance of caution. Darnton, supra note 19, at 17 (quoting Voltaire, Dictionnaire Philosophique (1764)) (original French omitted).

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can be summed up in three points: a failure of creative power in the minority, an answering withdrawal of mimesis on the part of the majority, and a consequent loss of social unity in the society as a whole.”116

check against drowning out other aspects of cultures Moderate copyright in copyright’s arc may ensure the survival of benevolent cultural traditions already in existence. If moderate copyright can promote new works that champion national unity and inclusiveness, such success may also simultaneously prevent the erosion of aspects of the culture that are already working toward the same end. To express this differently, some scholars are concerned that middle-income countries do not suffer “a loss of national identity to meaningless” models of consumption from developed countries.117 Just as Hollywood’s overwhelming prowess has turned developed country citizens into overconsumers of entertainment, Big Copyright can manipulate individuals in middle-income countries to adopt a mindset of desiring consumer goods that are not necessary and might alter their culture in undesirable ways. For example, some scholars have expressed concern with national identities in South America “that had successfully fused European and native American values now being replaced by a passion to resemble North America.”118 Although citizens in middle-income countries might not have the funds, time, or desire to overconsume entertainment to the extent that individuals in the United States do on average, they might shift parts of their culture to prioritize acquiring the latest gadgets. One Brazilian poll from the 1940s “revealed that half of all homeowners said they needed a garage, even though less than twenty percent owned a car.”119 To be fair, some internal resistance to external influences is concerned that exposure to new social norms might undermine practices of inequality and subjugation – that is, that artwork from abroad encourages a respect for human rights and freedom, whether or not it pushes consumerism. Indeed, consumerism has often been characterized as freedom of choice, especially for women. Peter Stearns notes, “Consumerism became wrapped up with new educational levels and work roles, part of a pattern of new assertiveness in a culture that had long emphasized women’s subordination.”120 Thus, while international artwork can break bonds of suppression – an unmitigated good – it can also encourage other cultural shifts – such as consumerism – that are less clearly positive or negative. 116 117

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Arnold J. Toynbee, A Study of History 246 (D.C. Somervell ed., vols. 1–6 abridg. ed. 1947). Peter N. Stearns, Consumerism in World History: The Global Transformation of Desire 113 (2d ed. 2006). Id. Id. Id.

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Encouraging homegrown artists through moderate copyright can help protect existing benevolent cultural traditions, such as a love of certain art forms and historical festivals, while also strengthening cultural norms of national inclusiveness and unity. Middle-income artists can provide tailored cultural counterweights to imported entertainment that conveys liberal values in addition to other nonuniversal norms and traditions. No one else will.121

challenges of ethnic diversity We all hold numerous different identities, which can be celebrated and often harmonized with each other. The concern is when a substantial portion of the public seeks the best interests of one identity to the detriment of others – for example, people seek to advance their religious beliefs at the expense of their identity as citizens. While the resulting harm can touch on disparate issues, it most often presents as harm to national inclusiveness and good governance, through prejudice, violence, or corrupt acts. Since such conflict among identities is not inevitable, the concern is how to prevent it from occurring.122 For many developing countries this challenge has been externally imposed. For example, as Francis Deng argues, “History has stripped Africa’s people of the dignity of building their nations on their own . . .. To attempt at this late date to return to ancestral identities and resources as bases for building the modern African nation would risk the collapse of many countries. At the same time, to disregard ethnic realities would be to build on loose sand, also a high-risk exercise.”123 Paul Collier, a development economist working on the effects of ethnic diversity, writes: “The societies of the bottom billion are for the most part far more ethnically diverse than those of the high-income countries. Often this diversity verges on being a taboo subject: it is just too upsetting. I think that it poses genuinely tough, but not insuperable, problems. They will not be overcome unless they are faced.”124 Ethnic diversity is also greater among middle-income countries relative to rich countries. First, a somewhat encouraging note. Collier states that it is an illusion that “all civil war is based in ethnic strife”: 121

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Further, the job of middle-income country artists may become more manageable if developed country artists reduce their own copyright laws to slow the exportation of new entertainment from abroad, so there would be less to counter. Frederick Douglass stated, “The life of the nation is secure only while the nation is honest, truthful, and virtuous.” Frederick Douglass, Speech on the Twenty-Third Anniversary of Emancipation in the District of Columbia, Washington, D.C. 23 (Apr. 1885), Library of Congress, https://www.loc.gov/resource/mfd.24010/?sp=23. Francis M. Deng, Ethnicity: An African Predicament, Brookings (June 1, 1997), https://www .brookings.edu/articles/ethnicity-an-african-predicament/. Paul Collier, Wars, Guns, and Votes 51 (2009). This section relies substantially on the critical work of Collier – a leader in the field who has, to his credit, significantly revised some of his positions on the effects of ethnic diversity. See also Alberto Alesina et al., Fractionalization, 8 J. Econ. Growth 155 (2003).

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Copyright, Middle-Income Countries, and National Inclusivity Statistically, there is not much evidence of a relationship between ethnic diversity and proneness to civil war. We do find some effect: societies that have one group that is large enough to form a majority of the population, but where other groups are still significant – what we call “ethnic dominance” – are indeed more at risk.125

In such circumstances, the dominant population might disregard the interests of the minority, or the smaller population groups might attempt to take power through force because they are afraid of subjugation by the majority.126 Collier suggests that individuals from “different ethnic groups may not like each other, and there may be a noisy discourse of mutual accusation. But there is a big gap between interethnic dislike and civil war.”127 While one of the absolute worst scenarios – civil war – is less worryingly tied to ethnic diversity relative to other factors such as income levels, the rate of economic growth, and reliance on commodity exports, there are numerous challenges that ethnic diversity presents when it comes to good governance.128 For example, ethnic diversity plays a role in whether valuable natural resources generate overall economic growth. According to Collier, democracies with natural resources grow slower if they have more ethnic diversity.129 Oil and diamonds increase the ruthless scramble for power among factions. Politicians exploit ethnic loyalties to buy votes instead of winning over the general electorate through improvements in infrastructure and public services. On the other end of the political spectrum, “autocracy seems to work well for the economy only in societies that are not ethnically diverse.”130 The theory here, Collier explains, is that increased diversity reduces the ruler’s support base. Typically, autocrats rely on the backing of the ethnic group they belong to; the smaller a despot’s base of backers, the greater the likelihood that he will adopt policies that reduce economic growth so that he can hand out favors to his ethnic group.131 In a resource rich-nation, “electoral competition is not enough to overcome the blockage to growth generated by autocracy; it merely shifts the form of the blockage to a more broadly diffused wastage of resources through patronage.”132 In such circumstances, “electoral competition is 125 126 127 128

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Paul Collier, The Bottom Billion 25 (2007). Id. at 25. Id. at 26. A significant risk factor for civil war is the income level of a country: “halve the starting income of the country and you double the risk of civil war.” Further, the causality works both ways – that is, a lower income level increases the chance of civil war, and civil war reduces income level. Id. at 19. Sluggish or even negative economic growth also increases the chances of civil war. Id. at 20. Finally, an economy largely based on commodity exports significantly raises the probability of civil war. Collier notes, “There have been several cases where international companies have advanced massive amounts of funding to rebel movements in return for resource concessions in the event of rebel victory.” Id. at 21. Id. at 45. Id. at 49. Id. at 50. Id.

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necessary but not sufficient.” Collier concludes that “resource-rich, ethnically diverse societies need a democracy that is distinctive in having a strong emphasis on political restraints relative to electoral competition. This cocktail is rare, but it does exist.”133 Such an environment of agreed-to political restraints is more likely when citizens believe themselves to be unified, broadly speaking. Middle-income countries frequently inherit a legacy of strong ethnic identities that have served useful functions in earlier, poorer times. Without a functioning government that is responsive to the needs of the people and provides social services, group members rely on each other, usually through an insurance-like mechanism. The challenge of insurance is taming the concerns of moral hazard, the view that once you insure against the theft of your bike (a classic example), you may take less care in meticulously locking it. The time-tested way to do so is through enabling the insurer to see your actions, which is too expense for corporations, but not for closeknit communities. Collier states, “Nosiness, gossip, friendly intimacy, all the ingredients that are natural to a community also happen to be just what is needed for insurance.”134 Additionally, to rely on each other within a community, individuals need to believe others will come to their aid when necessary. Such reciprocity relies on solving the problem of adverse selection – not allowing anyone to join the group right when they need help or to leave when other members need help. According to Collier, “this is where ethnicity comes in: you do not choose your ethnic group.”135 Native, permanent group membership “is the economic basis for strong ethnic loyalties: it enables income insurance to work in the high-risk, low-income conditions under which it is supremely valuable. Over time, loyalty to the group becomes reinforced by all the normal power of morality: it is morally good to meet your obligations.”136 In isolation, Collier explains, strong ethnic groups help themselves without harming others, unless they come into conflict with enemy groups. In a modern economy, however, “ethnic loyalties have far more scope for being at the expense of other groups . . .. The public purse becomes the common pool resource that the collective action of one group can capture at the expense of other groups.”137 Oby Ezekwesili describes how the mentality of group members undermines national unity: “They see themselves as good if they benefit a few thousand kin at the expense of the nation.”138 This mind-set has been confirmed by an extraordinary randomized experiment. Leonard Wantchekon, an economist from Benin, convinced Beninese politicians from different parts of the country to randomly assume one of two campaign 133 134 135 136 137 138

Id. Collier, supra note 125, at 52. Id. at 53. Id. Id. Id. at 54.

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approaches.139 One centered on improving governance across the nation, while the other promised to indulge in ethnic favoritism. How Wantchekon got the politicians to agree to such a randomized control experiment during an actual election is a sobering comment on the level of governance within Benin.140 Unfortunately, the statistical results demonstrated that the ethnic favoritism strategy was more successful than calls for good governance.141 That ethnic identity wins out over good governance is compounded by the fact that extremist parties reinforce ethnic divisions. Hence, “to the extent that policies do enter, instead of a race to capture the vote of Ms. Moderate the All-Powerful Median Voter, there is a race to the extremes.”142 Colin Jennings’s work on expressive voting has demonstrated that individuals get the “strongest identity fix” when they vote for the most extreme parties.143 This dynamic also leads to selection of “the most ardently sectarian leaders, so that when it comes to the stage of reaching compromise in a grand coalition, the starting point for the negotiations is as far toward the position of your own ethnic group as possible.”144 Collier believes “more fundamentally, diversity impedes the basic role of the state, the provision of public goods” such as checks and balances and scrutiny of government.145 For example, in Nigeria after the 2007 election, when the speaker of the House of Representatives, Patricia Etteh, was admonished in the press for having inappropriately obtained 12 Mercedes, the other politicians from her own ethnic group, the Yoruba, leaped to her defense. Quite explicitly, their message was “Hands off: she’s our only representative at the trough.” If a corruption charge can be deflected by playing the ethnic card, then standards of public conduct are bound to be low.146

Alberto Alesina and Eliana La Ferrara have uncovered that ethnic diversity is less of a drag on economic growth the richer a country becomes.147 Diverse teams attempting to accomplish a task in the private sector achieve higher productivity than diverse teams in the public sector.148 While diverse private sector teams “do not get along as well, they are better at achieving results” because they have a more varied perspective and a greater breadth of knowledge.149 Yet this silver lining applies

139 140 141 142 143 144 145 146 147

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Id. at 56. Id. Id. Id. Id. at 56–57. Id. at 57. Id. at 52. Id. at 58. Id. at 63 (citing Alberto Alesina & Eliana La Ferrara, Ethnic Diversity and Economic Performance, 43 J. Econ. Literature 762–800 (2005)). Id. at 60. Id.

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only to rich countries, not less well-off ones, because “the key advantages of diversity come from skills and knowledge,” which are less prevalent in poorer countries.150 While cooperation is more difficult in both the public and private sectors for ethnically diverse countries, coercion is only worse. Although “neither economic theory nor statistical analysis has yet been able decisively to nail the issue,” Collier believes that diverse societies suffer most under a “tough autocrat who rules by fear”: “Diversity may make democratic politics deteriorate, but it is likely to make dictatorship lethal.”151 Tim Besley and Masayuki Kudamatsu have discovered that the harmful impact of diversity on the economic growth of a dictatorship can be overcome if the autocrat imposes a vision other than inclusiveness – such as the ideology of communism.152 To be sure, there is little cause for optimism if what is good for the economy enhances the effectiveness of dictators. The clear causal link between increased ethnic diversity and deteriorating public services can be largely alleviated by a political leader committed to deemphasizing allegiance to ethnicity over country. Julius Nyerere, president of Tanzania from its independence in 1964 to 1985, consciously attempted to build a sense of national unity, while Kenyan leaders did the opposite – deliberately favoring the tribe of the leader at the moment, while taking no steps to forge inclusiveness. Economist Edward Miguel used this difference as a basis to test the impact of unity on the level of spending on public goods. He empirically demonstrated that in Kenyan districts that were ethnically diverse, locals spent 25 percent less on education per student compared to more homogenous localities.153 Encouragingly, there was no divergence in funding per pupil in Tanzanian districts – homogenous and diverse localities spent the same. Miguel’s study strongly suggests that Nyerere’s efforts to build a sense of national unity worked in Tanzania – “the damage normally caused by ethnic diversity had been dramatically reduced and perhaps even eliminated.”154

strategies for solidarity beyond copyright Scholars have cataloged numerous other strategies, some of which may be more influential than copyright reform, to promote solidarity. One of the most important is adopting a national language, ensuring it is known by citizens through sustained 150 151

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Id. at 61. Id. at 66 (While he is explicitly discussing poor nations, there appear to be no significant reasons negating the same conclusion for middle-income countries, especially on the lower end of the economic spectrum of middle-income countries.). Id. (citing Tim Besley & Masayuki Kudamatsu, Making Autocracy Work (CEPR Discussion Paper No. 6371, 2007)). Id. at 71 (citing Edward Miguel, Tribe or Nation? Nation-Building and Public Goods in Kenya versus Tanzania, 56 World Pol. 327 (2004)). Id. at 72. Tanzania’s first leader did falter in regard to his ruinous communist economic policies.

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educational efforts, and improving literacy. According to Kamila Ghazali, a linguistics professor in Malaysia: As far as language planning policies go, the government has been successful in ensuring that all its people are at least orally proficient in the national language, thus inculcating national pride and identity. With a common language we have one nation, breaking down all barriers to communication and understanding . . .. We cannot stop the wave of modernization and the advancement in social standing through education in the formal languages. But at the same time it is imperative that we make an equal effort to maintain the diverse native languages and cultures of people.155

Ghazali notes that families of various ethnicities support the national language: “Studies show that mothers, the primary supporters of education in most families, take pains to raise their children in the ‘school’ language, rather than their own native tongue. This is to ensure that their children will have a head start as they enter primary or even pre-school.”156 One way Malaysia has attempted to support other native languages is through providing “two different types of schools at the primary level: ‘national schools’ where the medium of instruction is Malay, and ‘nationaltype’ schools where the medium of instruction is either Chinese or Tamil.”157 Ghazali acknowledges that “this is a politically driven move, given the fact that the ruling government is a coalition of the three major races. Still, it is a great effort to ensure the sustainability of these languages up to a certain point.”158 Moderate copyright would support language preservation as well as the growth of national literature in a national tongue. Education is important in other ways, especially in teaching unbiased historical accounts of a country’s formation, struggles, failures, and victories. Voltaire believed that “all ancient histories, as one of our wits has observed, are only fables that men have agreed to admit as true.”159 Some countries have taken this notion too much to heart and generously rewritten or ignored history with the possible aim of forging a nation.160 Such cynical histories may unify a majority of citizens, yet risk alienating others. They can also complicate international relations. For example, many schools in Japan concentrate on pre–World War II history:161 “The Ministry of Education’s 155 156 157

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Kamila Ghazali, National Identity and Minority Languages, 47 U.N. Chron. 1 (2010). Id. Id. Malaysia also offers instruction in other languages depending on the region. For example, “The Iban and Kadazan-Dusun languages are even taught in schools in Sarawak and Sabah.” Id. Id. Voltaire, Jeannot et Colin, in 3 The Works of Voltaire 5, 10 (Tobias G. Smollett ed., William F. Fleming trans., Werner Company 1906) (1764). See Debbie Truong, Calls Grow to End Bias in Lessons, Textbooks, Wash. Post, June 16, 2019, at C1. Mariko Oi, What Japanese History Lessons Leave Out, BBC (Mar. 14, 2013), https://www.bbc .com/news/magazine-21226068.

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guidelines for junior high schools state that all children must be taught about Japan’s ‘historical relations with its Asian neighbours and the catastrophic damage caused by the World War II to humanity at large’”; however, according to Tamaki Matsuoka, a former history teacher, “the government deliberately tries not to teach young people the details of Japan’s atrocities.”162 The history book Mariko Oi used as a student had only one footnote on the Nanjing Massacre and another footnote on how Chinese and Korean women were forced into prostitution by the Japanese.163 Matsuoka believes the educational system is “responsible for a number of the country’s foreign relations difficulties.”164 Oi quotes her as saying, “Our system has been creating young people who get annoyed by all the complaints that China and South Korea make about war atrocities because [students] are not taught what [these countries] are complaining about.”165 “Meanwhile,” Mariko Oi writes, Japan’s “Prime Minister Shinzo Abe criticises China’s school curriculum for being too ‘anti-Japanese’.”166 Beyond problems of revision and omission, some schools also stress local history over national history.167 Done well, education provides numerous opportunities to stress inclusion. Unity and inclusiveness can be taught within social science units, as part of a lesson on the history of the birth of nationalism as a concept, or within literature classes as something to aspire to without hiding the past. As we have seen, artists are more likely than politicians to spread a vision of unity and inclusion, yet there is scope for public officials to do their part. (Some of these options might not be appropriate in particular apolitical environments and given the history of certain countries.) First, enlightened leaders looking to build solidarity need to stop favoring their own ethnic group when doling out public spending. Second, positive propaganda – not of the Orwellian kind, but simply the public sector equivalent of advertising in the private sector – including, perhaps, publicly funded local artwork expressing inclusiveness, can reinforce copyright’s effects on culture. President Julius Nyerere “developed and hammered home the rhetoric of national unity: people were Tanzanians, and that was something to be proud of. Ethnic identities were not forcibly suppressed; they were simply downplayed.”168 Third, countries can build in safeguards or checks and balances against polarizing nationalism, giving room for national unity to grow. For example, when Tanzania finally ended one-party rule, laws forbade any political party to adopt any sort of ethnic platform as part of their campaigns.169 Rwanda has taken this to the extreme

162 163 164 165 166 167 168 169

Id. Id. Id. Id. Id. Collier, supra note 125, at 69 (citing Miguel, supra note 153). Id. at 67. Id.

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after its 1994 genocide – the government has “banned talking about ethnicity.”170 The “official mantra” that is “strictly enforced” in the country is “We are all Rwandans now.”171

the best time to directly address inclusiveness This brings up the question: Why wait until a country attains middle-income status to concentrate on improving national unity and inclusiveness through copyright law? I do not mean to suggest that efforts should not be made to improve inclusiveness earlier. Rather, I believe that it is critical to build a foundation of equality and freedom immediately in poor countries, and this can be done through relaxing copyright policy. Citizens must begin to accept concepts such as human rights before they can think of other ethnicities as their equals (assuming they do not do so already). Copyright policy should facilitate the flow of imported art into poor countries so that ready-made, international entertainment that expresses liberal values, such as gender equality, can help citizens envision a life in which human rights are respected. Further, this is not to claim that gender equality is more pressing than ethnic equality. Rather, since gender discrimination occurs almost everywhere, entertainment that addresses it provides a lens through which equality as a general concept can be understood across the globe. Entertainment that inspires national unity and inclusion can be imported, but it is likely to be specifically tailored to the country in which it was made. Even in ethnically homogenous countries, which are not common, copyright needs to help solidify national unity in order to support the rule of law and good governance. Furthermore, inclusion needs to extend beyond ethnic groups – for example, to members of the LGBTQ+ community, individuals from different economic backgrounds, and the sick. While developing countries should start to build national unity as soon as possible through the policies discussed in this chapter, they should delay conscripting their copyright policy to the effort until belief in human rights begins to take hold. Copyright is only one tool in a leader’s arsenal to build national unity, and equality must come first. Developing countries need lower copyright levels to accomplish the critical task of redressing the daily denial of human rights, a challenge for which there are fewer readily deployable policies.172 170

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Rwanda Has Banned Talking about Ethnicity, Economist (Mar. 28, 2019), https://www .economist.com/middle-east-and-africa/2019/03/28/rwanda-has-banned-talking-about-ethnicity. Id. Furthermore, the benefits of moderate copyright for middle-income countries are contingent – there is no guarantee that artists from middle-income countries will be motivated by the financial incentives copyright provides to create art that helps build inclusiveness, as opposed to simply creating art that entertains or distracts. Yet studies have shown that the poor will benefit tremendously and quickly from the greater distribution of artwork enabled by significantly decreasing copyright in developing countries.

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There is no equivalent tool to strengthen human rights observance like setting a national language to build national unity. While educational efforts are available to human rights campaigners, it is arguably more difficult to get misogynist teachers to treat women as equal than it is to implement a mandate by the state to teach the nation’s history in an inclusive manner that builds a sense of nationhood. Finally, states can deploy a host of symbolic strategies, such as promoting national flags; honoring traditions involving song and dance; celebrating national holidays; memorializing historic figures and events through museums, statues, and street names; and building new, centralized national capitals such as Brasilia and Canberra. Almost all of the policies and tools aimed to increase unity require a political leadership that is committed to improving life for all citizens. This is rarely found in the poorest countries, as those in power are benefiting from their wayward policies and corruption and hence have little incentive to change. In middle-income countries, where the political elite are often corrupt, their corruption is usually not so extreme or extensive that it prevents them from implementing at least some good policies. This is evident in the fact that past leaders cared enough about the country to pull many of its citizens out of extreme poverty. Middle-income countries that are already using some of these policies and tools are more likely willing to contemplate using others. Leaders of developing countries rarely put much if any political capital into their copyright policy because they cannot extract rent from copyright laws. Some may want greater access to copyrighted educational materials but mistakenly believe that a poor country needs copyright to help generate more income for homegrown artists. As we have seen, this rationale for copyright was likely foisted on poor countries by the same trade negotiators who pressured them into passing excessive copyright laws. Hence, if developed country citizens push back against the lobbyists in their home countries and begin to undo the corporate capture of our trade regimes, the leaders of developing countries will likely either welcome the removal of outside political pressure and happily reduce their copyright laws or not care enough to oppose a recommended reduction. Once the free flow of international art begins to instill hope in the oppressed, national unity initiatives will carry more meaning.

can copyright help with totalitarianism in middle-income countries? Just as government cannot solve all human ills, copyright cannot magnify all the different ways art can help save human souls. But can copyright guard against the harm that government poses? Two hundred years ago, the United States enacted copyright in part to help prop up a fledgling democracy.173 The idea was that the 173

U.S. Copyright Act of 1790, Copyright.gov, https://www.copyright.gov/about/1790-copyrightact.html.

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economic incentive of copyright, by protecting the creative expression of ideas, might spur innovation that would help solve the numerous challenges democracy was up against. If copyright has helped to buttress democracy, it is possible that it can also help tear down despotism. As was briefly discussed in the previous chapter, there may be hope in developing countries. Whether copyright can be a tool against despotism in middleincome countries depends on whether a dictator actually cares about art’s value to foment dissent (he should be worried), and, if so, how effectively he can marshal the bureaucracy and military to do his bidding. If the dictator and his cronies primarily spend their time siphoning funds while ignoring culture, copyright can help. Yet, if the political elite recognize the value of entertainment and can effectively get the machinery of the state to impound unsympathetic or subversive material, to threaten dissident artists, and to promulgate entertainment that celebrates the dictatorship, then copyright is impotent and risks being turned into a tool of repression. Concretely, for example, copyright policies cannot break the Chinese Communist Party’s stranglehold on power or depose similar despots in developing countries. In the field of international development, scholars have articulated tools to assist honest, reforming heads of state to curb corruption and improve the rule of law.174 Such policies include whistle-blower protection laws, anti-corruption commissions, freedom of information laws, and procurement reform. Yet these tools cannot improve governance in a country where the political elite are corrupt. If a corrupt president establishes an anti-corruption commission, she can simply appoint one of her corrupt cronies to run it ineffectively. Worse yet, such tools can be used to bludgeon reformers. Instead of instructing the head of an anticorruption commission to simply be ineffective, a president can demand that her appointee fabricate corruption charges against the president’s opponents. Just as anti-corruption tools can be captured by vested interests, so can copyright. In the hands of honest political leaders, copyright can be tailored to help societies. But politicians who owe political capital to Hollywood lobbyists ignore the public good to the benefit of private firms. When dictated by dictators, copyright can turn into a tool of political oppression. In this tragic way, the abuse of copyright harkens back to its origins, when kings used an early prototype to decide what was published and what was censored. It was the hammer that would break printing presses, the sickle that would cut down printed copies. In modern times, we have seen copyright take on this role. The Soviets expertly wielded copyright as a tool of control over citizens, along with the threat of the gulag or death, to squelch artistic dissent. Cuba has used similar repression through copyright and beyond.175 From as early as 1961, Fidel Castro’s censorship policy 174

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See generally Robert I. Rotberg, The Corruption Cure: How Citizens & Leadership Can Combat Graft (2017). Martin Skladany, Cuba and Copyright (research notes on file with the author).

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regarding intellectuals and artists was: “Within the revolution, everything; outside of it, nothing.”176 The brief, partial loosening of this policy under his brother Raúl ended in April 2018. After taking office, Cuba’s new president, Miguel Díaz-Canel, signed Decree 349, which “bans the exhibition and sale of artworks and music shows not authorized by the state.”177 Luis Manuel Otero Alcántara, a performance artist who protested the law, “was detained by state security agents on public disorder charges after he sought to cover himself with his own excrement in Havana.”178 While his jailing for such an action is noteworthy, his choice of canvas and material was strategic: “In Cuban prisons, when inmates don’t want guards to touch them, they cover themselves with excrement.”179 Censoring despots are more than willing to go along with the international capture of copyright by entertainment corporations. This is not to say that at this point in time, para-copyright-inspired internet censorship tools, such as China’s great firewall, are not more practically important than extreme copyright laws in restricting freedom.180 Regimes that can effectively use copyright as a tool of repression can do more than just block international content and domestic artistic dissent. They can flood their cultures with inane propaganda. As Brandon Johnson notes, “If you’ve ever wanted to read Das Kapital but found it too daunting, the Chinese Communist Party has you covered.”181 China’s propaganda department in cooperation with a Chinese firm released a cartoon show on Karl Marx that was aired on Bilibili, a Chinese livestreaming platform.182 China not only understands entertainment education but has the funds to persist with behavior change campaigns that have been shown to be less effective – for example, “in an effort to ‘safeguard state secrets,’ the education ministry last year launched a 10-minute-long animation teaching children how to detect whether someone in their family is working for a foreign spy.”183

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Santiago Pérez, “Absolute Control”: Cuba Steps Up Artistic Censorship, Wall St. J. (Dec. 25, 2018, 6:10 PM), https://www.wsj.com/articles/absolute-control-cuba-steps-up-artistic-censorship11545753600. Id. Id. Id. (quoting Luis Manuel Otero Alcántara). “China’s ‘great firewall’ already imposes tight controls on internet links with the rest of the world, monitoring traffic and making many sites or services unavailable. Other countries, including Iran, Cuba, Saudi Arabia and Vietnam, have done similar things, and other governments are tightening controls on what people can see and do on the internet.” The Web’s New Walls, Economist, Sept. 4, 2010, at 11. Such policies are followed by despots around the globe from Gurbanguly Berdimuhamedov in Turkmenistan, Aleksandr Lukashenko in Belarus, and Bashar al-Assad in Syria. Brandon Johnson, China Is Celebrating Karl Marx’s 200th Birthday with an Animated Series, Quartz (Dec. 19, 2018), https://qz.com/1502706/chinas-communist-party-is-making-a-cartoonabout-karl-marx. Id. Id.

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Copyright can help inspire reform against a corrupt, dysfunctional regime, laying the groundwork for improving the rule of law and governance over the long term. Yet copyright cannot compete against a violent dictator who wields a heavy censoring hand against citizens. Unlike copyright, art can never be completely captured by an oppressive state. As Alaa Al Aswany states: When I write, I am not scared. If I am scared, I don’t write. It is something you must do. You must fight, this is your country and the situation is terrible. These people are governing the country in a very negative way. Writing is a part of our battle for democracy.184

184

Rory McCarthy, Dentist by Day, Top Novelist by Night, Guardian (Feb. 26, 2006, 7:14 PM), https://www.theguardian.com/books/2006/feb/27/fiction.egypt.

4 Reducing Copyright in Developed Countries

If we desire a future that avoids the enslavement of the propaganda state as well as the narcosis of the consumer and celebrity culture, we must first acknowledge the preciousness of our attention and resolve not to part with it as cheaply or unthinkingly as we so often have. And then we must act, individually and collectively, to make our attention our own again, and so reclaim ownership of the very experience of living. —Tim Wu1

Art is vital to us all. The diversity of its benefits rivals the variety within humankind. This is because art is our attempt to reach out to others. On the other end of that connection, the consumption of art refreshes us and offers us the possibility of joining ourselves to others’ life experiences. After a day full of bureaucracy, paperwork, expectations, commands, judgments, callousness, and grind, we search for stories of humor, adventure, lust, or gentleness. But, in our exhaustion, we often seek connection that demands little energy – consumption of entertainment. Some such entertainment may be crucial to our well-being. In the words of Rosemary Coombe, “the consumption of commodified representational forms is productive activity in which people engage in meaning-making to adapt signs, texts, and images to their own agendas.”2 But we would not, as a culture, use the language of addiction to discuss our relationship to screen-based entertainment if we felt in control of our consumption of it.3 We know that overconsumption is bad for our mental and physical health, not

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Tim Wu, The Attention Merchants: The Epic Scramble to Get Inside Our Heads 344 (2016). Rosemary J. Coombe, Objects of Property and Subjects of Politics: IP Laws and Democratic Dialogue, 69 Tex. L. Rev. 1853, 1863 (1991). For a more detailed discussion of portions of this chapter, see Martin Skladany, Big Copyright versus the People: How Major Content Providers Are Destroying Creativity and How to Stop Them (2018).

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least because we quickly forget how invigorating creation is and how it energizes us. Moving beyond ourselves, we also need to both create and consume art to buttress our liberal institutions. Without consuming culture, we risk losing touch with humanity – the struggle of others, efforts to improve the status quo. Milan Kundera writes, “The struggle of man against power is the struggle of memory against forgetting.”4 Overconsumption makes us forget our collective historical memory – it is political disenfranchisement through distraction. Without creating art, we choke our voice and lose our vote. Without actively communicating what we think is important and beautiful, corrupt and corrosive, we delegate this vital responsibility to corporations.5 These firms are apathetic to our fate: we have already consumed too much and created too little, allowing our laws to be written so that US public corporations have no responsibility to the public good.6 Our indifference has allowed them to focus on profits – their shareholders’ pockets – even if the side effects are ruinous to us. We need a nation of moderate media consumers. We also need a nation of artists. We have neither. Chapter 1 described how Big Copyright has empowered itself through its lobbying efforts. Now we will examine the other side of that phenomenon: how consumers in developed countries have been swept up by entertainment multinationals’ machinations, which have been enabled by extreme copyright.

overconsumption’s links Peter Stearns states that until recently “it was assumed that consumer society followed from the industrial revolution, thus beginning to emerge only at the end of the nineteenth century.”7 However, “we now know that, while there was a new surge around 1900, modern consumerism predates the industrial revolution. And it was born in Western Europe.”8 Of course, “hints of consumerism” were present across the globe.9 For example, Stearns notes that “[s]everal Asian societies had particularly elaborate consumer interests and outlets as part of urban culture.”10 Yet, although global trade routes can be traced back into antiquity, “full-blown 4

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Milan Kundera, The Book of Laughter and Forgetting 4 (Michael Henry Heim trans., 1980). See generally Hannah Arendt, The Human Condition (1958). German corporate governance for public corporations requires a two-tiered board where the supervisory board, on behalf of other parties, monitors the management board’s decisions. Supervisory boards may represent labor unions among other groups. See generally Jean J. Du Plessis, The German Two-Tier Board and the German Corporate Governance Code, 15 Eur. Bus. L. Rev. 1139 (2004). Peter N. Stearns, Consumerism in World History: The Global Transformation of Desire viii (2d ed. 2006). Id. See generally Frank Trentmann, Empire of Things: How We Became a World of Consumers, from the Fifteenth Century to the Twenty-First (2016) and The Oxford Handbook of the History of Consumption (Frank Trentmann ed., 2014). Stearns, supra note 7, at viii. Id.

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consumerism, in terms of intensity, commitment to novelty, and application to numerous social groups, has only been around for 300 years, give or take a few decades.”11 Commentators can be found expressing concern over the growth of consumerism in the early 1700s. For example, John Dennis believed luxury was the “spreading Contagion which is the greatest Corruption of Publick Manners and the greatest Extinguisher of Publick Spirit.”12 While causality cannot be proved, it is suggestive that this revised timeline in the rise of consumerism lines up with the rise of copyright, with the Statute of Anne in 1710. Moving forward, as Peter Baldwin writes, “Nineteenth-century America was unrepentantly the world’s premier pirate.”13 He continues, “Sucking the marrow of British and European publishers’ lists, it justified itself by ringing appeals to universal literacy, broad education, and the needs of a populist democracy.”14 As can be imagined, Charles Dickens and others fumed over the United States’ refusal to protect works produced abroad, possibly feeling themselves as exploited as many of their underdog characters, whose lungs were saturated with pollution from the mines and factories. Americans also “condemned Britain or France as sources of undesirable luxury and softness” in regard to desiring consumer goods.15 Yet, at the turn of the twentieth century, America became a net exporter of consumer products. This shift in the trade of physical goods was mirrored by a change in US copyright policy toward greater copyright protection. Since US copyright holders desired greater protection both in the United States and abroad, trade necessitated providing US protection to foreign works. Once again, developments in copyright policy were closely aligned with a shift in consumerism overall, this time on the production side specifically within the United States. Given the contingent nature of these two correlations, the lessons that can be learned from this history are not immediate, although it is striking that the growing desire to consume and market artwork should march in alignment with growth in its legal protection. Stearns argues that consumerism “has been wrapped up in issues of Western influence. What is sometimes called ‘Westernization’ involves the spread of consumer behaviors, often under the urgent leadership of European and United States commercial companies.”16 He states, “By 2000 Western influence in the world at large rested on consumer standards more than anything else, outlasting 11 12 13

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Id. Id. at 67. Peter Baldwin, The Copyright Wars: Three Centuries of Trans-Atlantic Battle 321 (2014). Id. Yet Breyer notes, “In the nineteenth century American publishers sold countless copies of British works and paid their authors royalties despite the fact that American copyright law did not protect British works.” Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 282–83 (1970). Stearns, supra note 7, at 67. Id.

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military and colonial predominance.”17 Consider the influence of a single multinational corporation: Disney does not just make “family movies” that target our children; it makes “must-have” merchandise tied to each release so that we pay Disney to let our kids do its marketing. In addition, the entertainment giant gets paid by other multinationals to permeate its movies with consumer products and to have characters flaunt brands. Disney wants not just to dictate what our kids imagine, what they wear, which backpacks and lunchboxes they carry; it has the audacity to pressure parents around the world to give up their vacations to wait in long lines to take photos with Mickey Mouse. Clearly, Disney has an economic incentive not to warn us of the dangers of consumerism.18 Thus entertainment corporations push overconsumption of entertainment and everything else. As a consequence, we should not necessarily assume that media are different from other consumer goods: although there is a practical limit to consumer spending, entertainment conglomerates have encouraged the development of a lifestyle of overconsumption in many sectors, fueling the general phenomenon and diversifying their assets accordingly. As a result of these transformations over time, the existing extreme level of copyright across the globe continues to primarily benefit multinationals who own our news, our entertainment, our publishers, and much else besides. Meanwhile, the interior life of ordinary citizens has been hijacked. Stearns states, Consumerism describes a society in which many people formulate their goals in life partly through acquiring goods that they clearly do not need for subsistence or for traditional display. They become enmeshed in the process of acquisition – shopping – and take some of their identity from a procession of new items that they buy and exhibit.19

One need only think of the rise of Facebook, where individuals display their identities by “liking” brands. Stearns believes that “a host of institutions both encourage and serve consumerism, from eager shopkeepers trying to lure customers into buying more than they need, to product designers employed to put new twists on established models, to advertisers seeking to create new needs.”20 The same is happening for entertainment, as the intensity of the relationship between the artist, fans, critics, and purveyors of merchandise leads to spiraling derangements. It is not just Nicki Minaj who receives death threats; so do fans who express mild criticism of her.21 It is not just 17 18

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Id. at ix. WALL-E is a possible exception to the rule. Then again, leave it to Disney to flatter our selfawareness with a family-friendly dystopia that takes our fears about consumption to a hilarious extreme. Stearns, supra note 7, at ix. Id. at vii. Chantilly Post, Nicki Minaj Critic Speaks Out after Receiving Death Threats from Her Fans, Hot New Hip Hop (July 10, 2018, 2:52 PM), https://hotnewhiphop.com/nicki-minaj-and-herfans-severely-went-in-on-woman-who-tweeted-opinion-on-nickis-music-news.54728.html.

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J. K. Rowling who must deal with harassment and stalking, but also Melissa Anelli, the webmaster of The Leaky Cauldron fansite.22 We know that consumerism is leading to environmental destruction and that the planet can be greatly assisted by changing the consumerist mind-set. But the root problem is not, I would argue, our dependence on gas and plastic. Rather, the overconsumption of entertainment, which steals our autonomy, is at the center of the consumerist spiral. If we can moderate our relationship to media, we will find it much easier to moderate our consumption of everything else. Happily, cutting back on media is also simpler and more conceivable than detaching from modern society to pursue homesteading. Zero waste seems like an impossible goal for many, but the soul-restoring act of creation, even seemingly wasteful creation (for our amateur paintings, musical offerings, and handknit sweaters may not always be well loved, even by their makers), lies within reach. Difficulties Getting People to Care about Overconsumption A popular 2018 Chinese meme “was the ‘flaunt your wealth’ challenge, where people posted photographs showing themselves sprawled on the ground surrounded by valuables as if they had tripped and dropped them.”23 Many of the photos were of people who “fell” out of their expensive cars onto the road and were pretending to be “knocked out” surrounded by scattered cash, jewelry, shoes, handbags, etc. In one such video, an unassuming street cleaner asked a woman in the middle of her “flaunt your wealth” challenge, “Hey miss, do you still need these? If not, I’ll take them away.” Ultimately, the cleaner had to resign from his job “in a bid to avoid fame” – i.e., in order to appease the powerful elite.24 The cleaner’s fate is instructive. Even when consumerism resulted in distasteful ostentation, the worst immediate consequences were borne by the man who inadvertently shamed the flaunter by simply doing his job. Very few of us really want to be made aware of our own overconsumption, whether that means an accounting of our Netflix binges or acknowledging the new clothes in our closet that we have never worn. This internal resistance, which tends to manifest as denial, is only one of the many reasons why it is difficult to have any sustained public action on the problem of overconsumption.25 It is easier for many to remember the positive aspects of 22

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Rebecca Martinez et al., Criminal: Eight Years of Online Stalking, WUNC 91.5 (Aug. 12, 2016), https://www.wunc.org/post/criminal-eight-years-online-stalking. William Zheng, How Official Chinese Propaganda Is Adapting to the Social Media Age as Disaffection Spreads among Millennials, S. China Morning Post (Feb. 10, 2019, 2:04 PM), https://www.scmp.com/news/china/politics/article/2185300/how-official-chinese-propagandaadapting-social-media-age. Id. (see the embedded video). After all, studies show that we overestimate the amount we exercise and underestimate the amount we consume. See, e.g., Ben Tobin, Dieters Beware: You May Be Undercounting Calories,

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entertainment than to think about the excesses, especially given that the harms of overconsumption can be nebulous. Consuming entertainment does not lead to concrete anxiety in the same way that figuring out how to pay off late bills does. Indeed, in the short term, media consumption relieves us from worry about many of our everyday stressors. Worse, there is a formidable opponent that wants to keep us distracted from thinking about overconsumption – Big Copyright, which has not only (as previously described) captured Congress and the US trade regime but has also convinced artists that large multinational corporations care about them and are on their side, even though historically patronage of the arts has always aimed to profit off the minds and skills of artists. Rather than using its considerable cultural clout to interrogate its own complicity in social dysfunction, Big Copyright prefers to emphasize the many other, genuine problems we face in the world, from environmental destruction to economic insecurity. This tactic not only makes Big Copyright appear like a concerned citizen, fighting for justice, but it helps overwhelm audiences, on an individual level and also collectively, such that we seek succor, or at least respite, in entertainment. To the extent that news media have encouraged political polarization not just between parties but within parties, many of us have retreated not only from public debate but from debate with friends and family. The more we withdraw from conversation into a partisan bubble, the more we consume and become isolated in overconsumption. But even if one cares about overconsumption on a structural level, it is hardly clear how to foment collective action. Even minimalism is tainted by social privilege and is often wrapped up in disapproval of the tastes or lifestyles of the disadvantaged. Champions of reform may have their own difficulties with overconsumption, sighing about the hoi polloi while drinking kopi luwak coffee or jetting off to Punta del Este.26 Overconsumption Harms But despite our reluctance to look squarely at the problem of overconsumption, its harms are manifest and growing. We should not dismiss the evidence that screenbased entertainment has become an excessive force in the lives of developed country citizens over time.27 After all, at a speech in front of the National Association of Broadcasters in 1961, Newton N. Minow challenged his audience “to sit down in front of your television set when your station goes on the air . . . and keep your eyes glued to that set until the station signs off. I can assure you that you will observe a

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New Report Finds, USA Today (July 27, 2018, 11:36 AM), https://www.usatoday.com/story/ money/2018/07/27/calorie-counting-americans-tend-underestimate-number-food/829647002. Kim, “Luxury” Coffee Made from Poop Is Torture for Animals, peta2 (Mar. 10, 2017), https:// www.peta2.com/news/kopi-luwak-coffee-civet-cruelty. I use developed country and rich country interchangeably.

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vast wasteland.”28 Minow reminds us that there was a time when it would have been hard to keep one’s eyes glued to the screen all day. Since then, Hollywood has whipped up some powerfully sticky glues. While we might implicitly assume that most of entertainment consumption is on social media, it is not. According to Nielsen’s Total Audience Report Q1 2019, adults in the United States spend an average of 11 hours and 27 minutes consuming media each day (up from 11 hours and 6 minutes in Q1 2018).29 Social media makes up only 1 hour and 57 minutes of this total.30 Thus Americans spend an average of 9 hours and 30 minutes a day overconsuming traditional media, such as TV, film, video games, and music. Of this 9.5 hours, a significant portion is spent viewing live or time-delayed TV content – 4.5 hours a day (and this number does not include TV content viewed on other devices).31 On top of this is time wasted because of decision overload – according to Nielsen, “the average TV viewer takes seven minutes just to pick what to watch.”32 All overconsumption and addictive behavior is serious and must be addressed, yet too little attention is paid to the harmful effects of nonsocial media consumption. Since films, TV, and video games are incentivized by copyright, my concern here is to highlight this overlooked connection between extreme copyright and excessive consumption of screen-based entertainment. Further, even though US individuals online have an average of 6.5 social media accounts, it appears as if social media consumption might have peaked or at least plateaued in the United States.33 Average daily time on social media stayed relatively constant over the previous three 28

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Newton N. Minow, Speech before the National Association of Broadcasters, Washington, D.C. (May 9, 1961). The Nielsen Company, The Nielsen Total Audience Report Q1 2019, at 2 (2019). This figure varies seasonally, but does not change significantly. GlobalWebIndex, Social: GlobalWebIndex’s Flagship Report on the Latest Trends in Social Media, at 8 (2019). This figure includes time on YouTube, which many do not deem to be pure social media. Slightly older statistics put daily YouTube consumption at 40 minutes a day for individuals in the United States on average. How Much Time Is Spent on Social Media? [Infographic], Mediakix, http://mediakix.com/2016/12/how-much-time-is-spenton-social-media-lifetime/#gs.F=eCW2M (last visited Aug. 11, 2019). Nielsen, supra note 29, at 3. The 11 hours and 27 minutes of average daily US consumption breaks down as follows: live TV is 3 hours and 53 minutes, time-shifted TV is 34 minutes, app/ web on a smartphone is 3 hours and 1 minute, app/web on a tablet is 50 minutes, internet on a computer is 33 minutes, game console is 14 minutes, DVD/Blu-ray device is 5 minutes, internet connected device is 35 minutes, and radio is 1 hour and 42 minutes, id. Rob Bailey-Millado, Too Much Streaming Content Is Causing Viewer “Paralysis”: Nielsen, N.Y. Post (July 1, 2019, 1:20 PM), https://nypost.com/2019/07/01/too-much-streaming-content-is-caus ing-viewer-paralysis-nielsen. GlobalWebIndex, supra note 30, at 10. Notably, GlobalWebIndex reports a trend toward use of social media to consume entertainment: “The opportunities for social engagement, at all times of the day and in various locations, have facilitated the evolution of social platforms into entertainment hubs. It’s no longer about ‘social’ activities in the purest sense, but more purposeful activities, particularly those based around content consumption,” id. at 3 (emphasis omitted).

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years – 2 hours and 4 minutes in 2016, 2 hours and 2 minutes in 2017, and 2 hours and 5 minutes in 2018 – before dipping below 2 hours in 2019.34 Of course, social media consumption might increase again and get more addictive in the future. For now, it appears the zeitgeist is social media concern, not concern about the elephant in the room, at least in terms of overconsumption.35 Given consumption is important but overconsumption harmful, at what point does the transition happen? Since individuals vary, it is challenging to state precisely when consumption goes too far, yet as a society we are well beyond the threshold set by scientific studies, which is generally between two and three hours a day of consumption. Overconsumption is linked to numerous physical harms. Melissa Pandika states, “Even two hours of TV a day can increase the risk of weight gain, diabetes, and heart disease in adults.”36 Further, spending more than four hours a day in front of a screen “more than doubles your likelihood of dying or being hospitalized for heart disease – and exercise won’t reduce the risk.”37 Too much consumption is also linked to some forms of cancer, myopia, and stroke.38 Jenna Birch states, “According to a 2017 study published in the Journal of Clinical Sleep Medicine, avid bingewatchers reported poor sleep quality, increased fatigue and more insomnia symptoms. Michigan State University researchers presented a link between bingewatching and poor lifestyle choices such as opting for unhealthy meals, unhealthy snacks and sedentary behaviors.”39 Too much entertainment is also correlated with many neurological and psychological harms. Nick McDermott reports, “Spending more than three-and-a-half hours per day glued to TV favorites doubled memory decline in over-50s.”40 Alice Park states, “Growing data suggests that exposing young children to too much time in front of a TV or computer can have negative effects on their development, including issues with memory, attention, and language skills.”41 Neza Stiglic and 34 35

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Id. at 8. “Some reports even indicate rates of ‘smartphone addiction’ or social media addiction to exceed 30 percent.” K. Zajac et al., Treatments for Internet Gaming Disorder and Internet Addiction: A Systematic Review, 31 Psychol. Addictive Behaviors 979, 980 (2017). Melissa Pandika, The Unexpected Effects of All That Screen Time, Rally Health (Sept. 26, 2016), https://www.rallyhealth.com/health/unexpected-effects-screen-time. Id. Id. See also American Heart Association News, Limit Screen Time among Kids, Experts Caution, American Heart Association (Aug. 6, 2018), https://www.heart.org/en/news/2018/ 08/06/limit-screen-time-among-kids-experts-caution (mentioning the increased risk for stroke). Jenna Birch, How Binge-Watching Is Hazardous to Your Health, Wash. Post (June 3, 2019, 7:00 AM), https://www.washingtonpost.com/lifestyle/wellness/how-binge-watching-is-hazard ous-to-your-health/2019/05/31/03b0d70a-8220-11e9-bce7-40b4105f7ca0_story.html. Nick McDermott, Watching 3.5 Hours of TV a Day Increases Risk of Dementia: Study, N.Y. Post (Feb. 28, 2019, 12:15 PM), https://nypost.com/2019/02/28/watching-3-5-hours-of-tv-a-dayincreases-risk-of-dementia-study. Alice Park, Too Much Screen Time Can Have Lasting Consequences for Young Children’s Brains, Time (Jan. 28, 2019), http://time.com/5514539/screen-time-children-brain. See also

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Russell Viner’s review of studies uncovered “evidence that high screentime is associated with deleterious effects on irritability” and anxiety among children.42 Sheri Madigan and fellow researchers found that children between two and three years old who were exposed to more screen time were linked to poorer performance in achieving development milestones when they were between three and five years old.43 Even “chronic exposure” to background television, to the extent that it “disrupts language input, . . . may have a deleterious effect on development.”44 Many developed countries are experiencing a drop in IQ scores.45 Bernt Bratsberg and Ole Rogeberg used data on “three decades of Norwegian male cohorts” to demonstrate an IQ decline within families, which suggests environmental factors are at play.46 Given the limits of regression analysis, we will likely never be able to prove that overconsumption of entertainment is causing such IQ declines, or many of the other harms mentioned here, yet such trends and correlations are eye opening. Further, the link between overconsumption and some of these harms may likely work both ways – for example, overconsumption leads to a lack of sleep, but a lack of sleep may exacerbate overconsumption. Overconsumption causes mood changes, boredom, and hopelessness in children. Nicholas Kardaras points out that “hundreds of clinical studies show that screens increase depression, anxiety and aggression.”47 The consensus among child development specialists is that “social interaction, creative imaginative play and an engagement with the real, natural world” are paramount.48 Children accustomed to hyperstimulation from digital devices “become bored, apathetic, uninteresting and uninterested when not plugged in.”49 Kardaras suggests, “There’s a reason that the most tech-cautious parents are tech designers and engineers.”50

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Edward L. Swing et al., Television and Video Game Exposure and the Development of Attention Problems, 126 Pediatrics 214 (2010). Neza Stiglic & Russell M. Viner, Effects of Screentime on the Health and Well-Being of Children and Adolescents: A Systematic Review of Reviews, 9 BMJ Open (2019), https://www .ncbi.nlm.nih.gov/pmc/articles/PMC6326346. Sheri Madigan et al., Association between Screen Time and Children’s Performance on a Developmental Screening Test, 173 JAMA Pediatrics 244 (2019). The study did not demonstrate causation. Tiffany A. Pempek et al., The Effects of Background Television on the Quantity and Quality of Child-Directed Speech by Parents, 8 J. Children & Media 211, 211 (2014). Edward Dutton, Dimitri van der Linden & Richard Lynn, The Negative Flynn Effect: A Systematic Literature Review, 59 Intelligence 163 (2016). Bernt Bratsberg & Ole Rogeberg, Flynn Effect and Its Reversal Are Both Environmentally Caused, 115 PNAS 6674, 6674 (2018). Nicholas Kardaras, It’s “Digital Heroin”: How Screens Turn Kids into Psychotic Junkies, N.Y. Post (Aug. 27, 2016, 7:54 PM), https://nypost.com/2016/08/27/its-digital-heroin-how-screensturn-kids-into-psychotic-junkies. Id. Id. See also Nicholas Kardaras, Glow Kids (2017). Id.

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Jean M. Twenge and fellow researchers “discovered nearly half of teens who got five or more hours of screen time each day had experienced thoughts of suicide or prolonged periods of hopelessness or sadness.”51 This is almost double the rate among teens who had less than an hour a day.52 Twenge states, “There’s not a single exception. All screen activities are linked to less happiness, and all nonscreen activities are linked to more happiness.”53 The increase in screen time coincides with a 65 percent rise in the suicide rate among teenage girls between 2010 and 2015.54 Many adolescents suffer from compulsive gaming – a condition that psychologists link to stress and loneliness. Caitlin Gibson notes that “recent research found measurable changes in the parts of the brain linked to cognitive function and emotional control after study subjects spent one week playing violent video games.”55 In some cases, excessive gaming can lead to game transfer phenomena (GTP), “a sort of auditory hallucination . . . in which the boundaries between reality and the game begin to blur.”56 For example, a GTP sufferer’s first words upon meeting his psychotherapist were: “Are we still in the game?”57

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Sean Rossman, Screen Time Increases Teen Depression, Thoughts of Suicide, Research Suggests, USA Today (Nov. 17, 2017, 2:10 PM), https://www.usatoday.com/story/news/nation-now/2017/ 11/17/screen-time-increases-teen-depression-thoughts-suicide-research-suggests/874073001. This study included all forms of screen time, including social media. Id. Jean M. Twenge, Have Smartphones Destroyed a Generation?, Atlantic (Sept. 2017), https:// www.theatlantic.com/magazine/archive/2017/09/has-the-smartphone-destroyed-a-generation/ 534198. See also Jean M. Twenge et al., Increases in Depressive Symptoms, Suicide-Related Outcomes, and Suicide Rates among U.S. Adolescents after 2010 and Links to Increased New Media Screen Time, 6 Clinical Psychol. Sci. 3, 8 (and the corresponding corrigendum) (2018). These figures include social media use. Caitlin Gibson, The Next Level, Wash. Post (Dec. 7, 2016), https://www.washingtonpost.com/ sf/style/2016/12/07/video-games-are-more-addictive-than-ever-this-is-what-happens-when-kids-cantturn-them-off/?utm_term=.d3a36d248c99. Such harms are not limited to individuals within developed countries, even if the concern is mostly for developed countries. Jane Wakefield notes that China is increasingly concerned about addiction and the impact of gaming on children’s eyesight, and has taken strong measures to crack down on the issue. China’s tech giant Tencent has tightened checks on the age of people playing online games – checking identities and ages against a police database. Children under 12 are only able to play for an hour a day. Older children can play for up to two hours, but not during a night-time curfew.

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Jane Wakefield, Fortnite: Is Prince Harry Right to Want Game Banned?, BBC (Apr. 4, 2019), https://www.bbc.com/news/technology-47813894. Yet “[d]ozens of studies have shown correlations between video game use and improved spatial processing, multitasking, attentional control, and perseverance.” Marc Lewis, Are Video Games Really Addictive?, Guardian (June 20, 2018, 8:02 AM), https://www.theguardian.com/commentisfree/2018/jun/20/video-gamesaddictive-disorder-diagnosis. Gibson, supra note 55. Id.

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We need to move beyond blaming consumers.58 For example, Emile Zola, a nineteenth-century French novelist, “wrote a whole book about department stores and their lures to flighty, frivolous women (The Ladies’ Paradise). Zola could not decide who were more at fault, the storeowners for setting our temptations or women for being so empty-headed as to succumb.”59 Sadly, such historical examples of victim blaming continue – some people are still tempted to place blame on the nearly 32,000 killed from synthetic opioid overdoses in 2018 even though shocking evidence has come to light that the pharmaceutical companies knew of the tragic harm of their products while continuing to push sales.60 Addiction? Unlike Veblen’s vision of conspicuous consumption as “a means of reputability to the gentleman of leisure,” today’s overconsumption is less to impress others than a battle of the individual versus the corporate army of entertainers and advertisers.61 As Erik Vance suggests, “In the world of gaming and other screen-based media, addiction isn’t a warning – it’s a selling point.”62 The suggestions of friends and marketers to watch the latest show or play the latest game usually direct us toward the most psychologically enticing content. Adam Alter explains the marketer’s point of view: If you’re competing for limited attentional resources, you need to make sure people can’t stop using your product once they start. It isn’t enough to just make a product that they buy and then ignore; they have to keep using it so you can attract advertising dollars and, in time, sell them sequels and encourage them to make ongoing purchases that are related to the experience.63

Psychiatrist Kimberly Young, who established the Center for Internet Addiction, believes “We’re all mildly addicted. I think that’s obvious to see in our behavior.”64 58

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This book does not have time to address the substantive content of entertainment; it focuses on the motivation of corporations in creating works and how collectively the flood of products hurts individuals. Stearns, supra note 7, at 69. In addition to not blaming consumers, I am not arguing about the content of entertainment. My concern is the harm caused by its quantity. Even putting aside the content, the task of pushing against quantity is daunting. Barry Meier, In Guilty Plea, OxyContin Maker to Pay $600 Million, N.Y. Times (May 10, 2007), https://www.nytimes.com/2007/05/10/business/11drug-web.html?module=inline. Thorstein Veblen, The Theory of the Leisure Class 75 (1899). John Rae anticipated Veblen. See John Rae, Statement of Some New Principles on the Subject of Political Economy (1834). Erik Vance, What Screen Addictions and Drug Addictions Have in Common, PBS: Nova (Oct. 23, 2018), https://www.pbs.org/wgbh/nova/article/screen-time-addiction. Lisa Tolin, Are You Hooked on Screens? Here’s Why You Can’t Look Away, NBC News: Better (Apr. 18, 2017, 10:24 AM) (interview with Adam Alter), https://www.nbcnews.com/ better/wellness/are-you-hooked-screens-here-s-why-you-can-t-n745801. Gabriella Borter, Feature – The Digital Drug: Internet Addiction Spawns U.S. Treatment Programs, Reuters (Jan. 28, 2019) (quoting Kimberly Young), http://news.trust.org/item/ 20190127105154-wfuzc.

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The question whether such tailored content is truly addictive or simply difficult to put down is, in part, a false dichotomy, to distract us from blaming entertainment companies. As with illicit drugs, alcohol, and gambling, there is a portion of the population that is predisposed to losing control in the face of any dopaminereleasing substance or activity, yet nonaddicts may also suffer serious harm. For example, 70 percent of Americans binge watch television.65 When they do so, they watch, on average, five episodes of a series at once.66 Also, a 2016 poll by Common Sense Media found that 50 percent of teens reported feeling “addicted to their mobile devices.”67 Gabriella Borter states, “Psychiatrists say internet addiction, characterized by a loss of control over internet use and disregard for the consequences of it, affects up to 8 percent of Americans.”68 Prince Harry has called for a ban on the video game Fortnite, played by over 200 million individuals.69 He stated, “It’s created to addict, an addiction to keep you in front of a computer for as long as possible. It’s so irresponsible. It’s like waiting for the damage to be done and kids turning up on your doorsteps and families being broken down.”70 Putting this distinction aside, there are startling concerns. Firsthand accounts of struggle are saddening. One individual suffering from YouTube addiction stated, “There were times I wouldn’t communicate with anyone all day. It was isolationist and repetitive and hypnotic. I would sit entranced, swelling my command of thoroughly useless information as YouTube gently wove its spell on me, drawing me deeper and deeper into its pixelated underworld.”71 The World Health Organization (WHO) recently added “gaming disorder” to its International Classification of Diseases. WHO defines gaming disorder as: a pattern of persistent or recurrent gaming behavior, which may be online or offline, manifested by impaired control over gaming, increasing priority given to gaming to the extent that gaming takes precedence over other life interests and daily activities and continuation or escalation of gaming despite the occurrence of negative consequences.72 65

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Christine Persaud, More than 70% of Americans Binge-Watch Television, Bus. Insider (Mar. 23, 2016, 11:03 PM), https://www.businessinsider.com/more-than-70-of-americans-bingewatch-television-2016-3. Id. Dealing with Devices: The Parent-Teen Dynamic, Common Sense Media (May 3, 2016), https://www.commonsensemedia.org/technology-addiction-concern-controversy-and-findingbalance-infographic. Borter, supra note 64. Wakefield, supra note 55 (quoting Prince Harry). Id. Domingo Cullen, YouTube Addiction: Binge Watching Videos Became My “Drug of Choice,” Guardian (May 3, 2019, 2:00 AM), https://www.theguardian.com/us-news/2019/may/03/you tube-addiction-mental-health. Michelle Meyers, “Gaming Disorder” Deemed an Official Illness by World Health Organization, CNET (May 26, 2019, 2:39 PM), https://www.cnet.com/news/world-health-organizationdeems-gaming-disorder-an-official-illness/#ftag=COS-05-10aaa0j (quoting WHO, IDC-11).

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Not surprisingly, global trade groups such as the Entertainment Software Association (ESA), Interactive Software Federation of Europe (ISFE), and UK Interactive Entertainment (UKIE) lobbied in opposition, using “classic” stall tactics such as suggesting that more research was required to find the cause – “that gaming disorder was perhaps a symptom of a more serious underlying mental health issue.”73 Gabriella Borter states, “WHO spokesman Tarik Jasarevic said internet addiction is the subject of ‘intensive research’ and consideration for future classification.”74 In support of this view, Nicholas Kardaras writes, “We now know that those iPads, smartphones and Xboxes are a form of digital drug. Recent brain imaging research is showing that they affect the brain’s frontal cortex – which controls executive functioning, including impulse control – in exactly the same way that cocaine does.”75 According to Chris Tuell, digital technology does this by taking over our brain’s reward system so that we release certain neurochemicals: “The brain really doesn’t care what it is, whether I pour it down my throat or put it in my nose or see it with my eyes or do it with my hands,” given the same chemicals are being dumped into the brain.76 Screen use raises dopamine levels as much as sex.77 Yet mental health counselors agree that getting better is not the same as getting sober, since screens are everywhere and hence possibly more difficult to avoid than bars or drug dens. This “addictive effect” leads individuals like the director of neuroscience at UCLA, Peter Whybrow, to call “screens ‘electronic cocaine.’”78 Adam Alter argues that substance and behavioral addictions are both “fueled by some of the same basic human needs: social engagement and social support, mental stimulation, and a sense of effectiveness. Strip people of these needs and they’re more likely to develop addictions to both substance and behaviors.”79 Video game overconsumption is leading to divorce.80 People are mired in boredom.81 What individuals are missing – connection to friends, family, and strangers through fun, volunteering, and intellectual engagement – ends up hurting others in society who are also denied the same.82 73

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Christopher Dring, World Health Organization Makes “Gaming Disorder” a Recognized Illness, gamesindustry.biz (May 25, 2019), https://www.gamesindustry.biz/articles/2019-05-25world-health-organisation-makes-gaming-disorder-a-recognised-illness. Borter, supra note 64 (quoting Chris Tuell). Kardaras, supra note 47. Borter, supra note 64. Kardaras, supra note 47. Id. Adam Alter, Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked 8–9 (2017). Wakefield, supra note 55. Ben Renner, No Fun: Americans Mired in Boredom 131 Days a Year, Survey Finds, Study Finds (May 8, 2019), https://www.studyfinds.org/no-fun-americans-mired-boredom-131-daysyear. For example, recent research has shown the value of conversation with strangers. Elizabeth Bernstein states, “You don’t even have to talk to complete strangers to reap the benefits. Multiple studies show that people who interact regularly with passing acquaintances, or who engage with others through community groups, religious gatherings or volunteer opportunities,

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Technology, Psychology, Irresistibility, and Hook Techniques Many commentators dismiss these problems by noting that concerns about new technology have always been overwrought. For example, Arthur C. Brooks cites a New York Times article from 1876 to remind us that the telephone was once alarming. The Times warned that if the phone became pervasive, “people would no longer go out in public, creating a societal breakdown”;83 “by bringing music and ministers into every home,” the telephone would “empty the concert-halls and the churches,” making it “a device of the enemies of the Republic.”84 Yet Brooks admits that “many older readers will remember that in their youth some people were nearrecluses in their homes, talking for hours on the phone. Perverts and bullies would make crank calls, a parallel phenomenon to the anonymous use of social media and ‘trolling.’”85 While I agree that the telephone brought only marginal negative side effects, especially given the hype of doom that preceded it, one cannot logically argue that existing technology does not cause minimal negative consequences. The early telephone did not have a screen, nor could it utilize a host of hook techniques. It did not come about at a time when neuroscience could help maximize the addictiveness of new technologies by studying how they affect our brains. Further, even if we do not alter copyright, its effects will not remain constant in the face of technological innovation. Entertainment corporations are concerned that technological advances will reduce their market power through making illicit sharing easier – one of many reasons why they continually demand ever-greater monopoly protection. In addition, Hollywood utilizes technology to increase how much people overconsume. Given Hollywood’s dual approach to bend technology to its will, it is imperative that we reform copyright to lessen technology’s negative impacts on human experience. Entertainment corporations believe themselves to be in a race to make their products as addictive as possible. Copyright reform will not debunk this belief, but it will slow down the race by reducing the profitability of making entertainment irresistible. Thus let’s rescue Hollywood from this dystopia through copyright reform. As David B. Dillard-Wright writes, “Think for a second about how some of the most powerful technology the world has ever seen is now being used not to solve world hunger or send astronauts to the moon” but rather to keep people consuming entertainment at all costs.86

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have better emotional and physical health and live longer than people who do not.” Elizabeth Bernstein, The Surprising Boost You Get from Strangers, Wall St. J. (May 11, 2019, 5:30 AM), https://www.wsj.com/articles/the-surprising-boost-you-get-from-strangers-11557567000. Arthur C. Brooks, There’s a Cure for Social Media Addiction, Wash. Post, June 16, 2019, at A21. Id. (citing the New York Times from 1876). Id. D.B. Dillard-Wright, Technology Designed for Addiction, Psychol. Today (Jan. 4, 2018), https://www.psychologytoday.com/us/blog/boundless/201801/technology-designed-addiction.

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Neurocinema is the practice of “using neurofeedback to help moviemakers vet and refine film elements such as scripts, characters, plots, scenes, and effects.”87 Such information comes from numerous monitors that are physically attached to volunteers who watch clips of movies and TV shows to see what sparks their interest and what bores them. The concept can be applied to almost any part of the cinematic process. For example, some entertainment corporations “currently leverage neurocinematics” even before a film is made, “for script vetting and character development, even cast selection.”88 Understandably, not all writers in Hollywood are enthusiastic. One employee of MindSign, a company that assists studios with such techniques, says, “I get hate mail from the writers.”89 Others use such tools after the film is made – i.e., there are “[s]everal neuromarketing companies” that also “brain-test movie trailers.”90 Researchers take the “brain activity recorded while subjects” view clips and feed it “into a computer program that learn[s], second by second, to associate visual patterns in the movie with the corresponding brain activity.”91 The more data that becomes available on the link between each second of video clips and the corresponding brain activity associated with those clips, the more artificial intelligence can predict what brain activity notyet-tested new films would likely elicit in viewers in every second of video.92 Maarten A. S. Boksem and Ale Smidts have demonstrated the effectiveness of such techniques for movie trailers – for example, “that EEG measures (beta and gamma oscillations), beyond stated preference measures, provide unique information regarding individual and population-wide preference and can thus, in principle, be used as a neural marker for commercial success.”93 Throughout the evolution of making a movie or TV show, studios can use or hire others to use numerous techniques to measure brain activity relative to their entertainment. Kevin Randall states, “There is plenty of debate and rhetoric among competing firms about the best technologies for brain measurement. fMRI [functional magnetic resonance imaging] is considered reliable and [shows the] brain indepth but the machines are bulky, expensive, and preclude a real-world shopping context.”94 He notes, “NeuroFocus, which bills itself as the world leader in 87

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Kevin Randall, Rise of Neurocinema, Fast Company (Feb. 25, 2011), https://www.fastcompany .com/1731055/rise-neurocinema-how-hollywood-studios-harness-your-brainwaves-win-oscars. Id. Id. Suraj Panigrahi, Neuromarketing: Pressing Your Buy Button, Sci. Rep., Mar. 2018, at 30, http:// nopr.niscair.res.in/bitstream/123456789/43681/2/SR%2055%283%29%2026-30.pdf. Yasmin Anwar, Scientists Use Brain Imaging to Reveal the Movies in Our Mind, Berkeley News (Sept. 22, 2011), https://news.berkeley.edu/2011/09/22/brain-movies. Id. Maarten A.S. Boksem & Ale Smidts, Brain Responses to Movie Trailers Predict Individual Preferences for Movies and Their Population-Wide Commercial Success, 52 J. Marketing Res. 482, 482 (2015). Randall, supra note 87. The same is occurring within marketing and trademark law. See Mark Bartholomew, Neuromarks, 103 Minn. L. Rev. 521 (2018).

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neuromarketing, employs EEG [electroencephalography] devices that are worn as headsets by viewers in the theater for movie and trailer screenings.”95 He also notes, “EmSense distributes a ‘lighter’ version of these headsets to panels of respondents which results in a larger sample of test subjects.”96 Other companies use a host of extra “neuroscience technologies that record the brain’s electrical and metabolic activity,” such as transcranial magnetic stimulation (TMS), magnetoencephalography (MEG), and positron emission tomography (PET).97 Uri Hasson, a psychology professor at Princeton University, has been credited with coining the term neurocinematics.98 He used fMRI machines – the milliondollar boxes that have helped innumerable hospital patients – to determine that “certain types of films (e.g., horror, action, sci-fi) produced high activation scores in the amygdala region of viewer subjects’ brains, the part that controls disgust, anger, lust, and fear.”99 Such brain scans stem from research with a long lineage. Stephen Hall cites inquiries as far back as the 1980s that engaged in using “a variety of tools and methods to determine the emotions a subject is experiencing or believes they are experiencing when they watch films.”100 Before neurocinematics was the “field of psychophysiology,” which employs tactics still used, including “observational methods such as measuring heart rates, blinking and movement of eyes and body parts to determine emotional impacts.”101 The pull is strong: “films effectively induce emotions and even surpass the potential of methods like the Velten technique, hypnosis, or offering presents, especially in relation to the induction of positive emotions.”102 Further, the use of fMRI machines to hook viewers is advancing. For example, given that “brain functions involve multiple brain areas,” much current research has moved away from “earlier neuroimaging studies that mapped areas to function” – i.e., there has been a switch “from a structure-centric viewpoint to a networkoriented one.”103 Further, such technology is not limited to TV and film, as 95 96 97 98

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Id. Id. Panigrahi, supra note 90, at 27. Randall, supra note 87. For a theoretical account of how neurocinematics’ “emphasis on ‘effects’ that films have on brains can be seen as outdated,” see Maria Poulaki, Neurocinematics and the Discourse of Control: Towards a Critical Neurofilmology, 14 Cine´ma & Cie 39 (Spring/ Fall 2014). Randall, supra note 87. Stephen J. Hall, Producing Educational Films That Activate the Emotions Known to Support Learning 29 (July 20, 2016) (M. Phil. thesis, Torrens University Australia), https://torrens.figshare.com/articles/Producing_educational_films_that_activate_the_emo tions_known_to_support_learning/7361621/1. Id. at 29. Meike K. Uhrig et al., Emotion Elicitation: A Comparison of Pictures and Films, Frontiers Psychol. (Feb. 17, 2016), https://www.frontiersin.org/articles/10.3389/fpsyg.2016.00180/full. Matthieu Gilson et al., Effective Connectivity Inferred from fMRI Transition Dynamics during Movie Viewing Points to a Balanced Reconfiguration of Cortical Interactions, 180 NeuroImage, 534, 534 (2018).

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researchers also employ it in game analysis, brain-computer interfaces, virtual object control, and neuromarketing of products within entertainment.104 Such techniques offer control, which translates into overconsumption by the subject and increased profits for the corporation. Suraj Panigrahi states, “Stephen Susco, the writer of the horror movie Grudge, claims that horror filmmakers can potentially control the viewers’ brains by adding amygdalic excitements and thus maximizing their profits.”105 Greg Miller quotes the filmmaker Darren Aronofsky: “It’s a scary tool for the studios to have.”106 Of course, some effective hook techniques have long historical roots. It is hypothesized that such effective techniques were passed on from TV and film directors informally as cultural currency – as rules of thumb or even as osmosis of previously unnamed techniques. The worry now is that researchers have not only labeled such techniques but demonstrated their efficacy and perfected them. For example, one effective hook technique is to reduce the average shot length (ASL) – the time it takes to switch from one shot to another – throughout a TV show, video game, or film. Cuts from one video shot to another activate viewers’ “orienting response,” one of our “natural, evolutionary survival responses to orient and attend to a change in our visual and auditory world.”107 Our orienting response can also be activated with zooms, pans, or sudden noises. Doing so keeps our attention on the screen. Our reaction is instinctual and helps us quickly focus on potential natural dangers in the wild – for example, a sudden noise in the woods could denote a rattlesnake or bear. Yet Hollywood has turned it into an “evolutionary trap.” When the orienting response is activated, our blood vessels to the brain dilate, yet constrict to other muscle groups. Our hearts slow. Such effects are meant to give our brain the resources it needs to gather information about the possible threat.108 If novel visual or auditory changes happen quickly enough, our orienting response can be almost 104

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Negin Manshouri, Masoud Maleki & Temel Kayikcioglu, An EEG-Based Stereoscopic Research to Reveal the Brain’s Response to What Happens before and after Watching 2D and 3D Movies, Cornell U. arXiv.org (Mar. 13, 2019), https://arxiv.org/abs/1903.06121. Psychological or neuroscience hooks are also becoming more prevalent in many areas. For example, restaurant menus can use numerous techniques such as employing expensive decoys – for example, placing “an incredibly expensive item near the top of the menu, which makes everything else seem reasonably priced,” or putting the most profitable options in the upper right corner because research has shown that is where our eyes first go. Jessica Hullinger, 8 Psychological Tricks of Restaurant Menus, Mental Floss (Mar. 30, 2016), http://mentalfloss .com/article/63443/8-psychological-tricks-restaurant-menus. Panigrahi, supra note 90, at 30. Greg Miller, How Movies Synchronize the Brains of an Audience, Wired (Aug. 28, 2014, 6:30 AM), https://www.wired.com/2014/08/cinema-science-mind-meld. Erik Peper & Richard Harvey, Digital Addiction: Increased Loneliness, Anxiety, and Depression, 5 NeuroRegulation 3, 3, 6 (Mar. 31, 2018), https://www.neuroregulation.org/article/view/ 18189/11842. See generally Robert Kubey & Mihaly Csikszentmihalyi, Television Addiction Is No Mere Metaphor, 286 Sci. Am. 74 (Feb. 23, 2002), https://www.researchgate.net/publication/ 11531116_Television_Addiction_is_no_mere_metaphor.

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continually activated throughout a video, making it physiologically difficult to not stay focused on the screen-based entertainment.109 We have gotten to this point in some researchers’ views – film shots now average about four seconds.110 In addition to the continual use of short shot lengths, increasing motion of people and objects within the video and “the coupling of shot lengths and motion” both “serve the filmmaker to better control the eye movements and the attention of the viewer.”111 Also, videos that are darker in color allow “for greater dynamic contrast, which in turn allows for better control over viewers’ attention . . . and the potential of viewers seeing a film even more convincingly as an invisible window into the world in which the narrative takes place.”112 Another technique is mimicking, in video, a recurring pattern called “1/f” that our brain generates, our heart beats, and is also created by tides and pulsars.113 Describing the work of James Cutting, George Lowery states, “As film editors put shots together, they have come to mimic the same pattern that controls our attention, independent of shot length.” Cutting says that we naturally have different “waves in our attention that course through us in periods of tens of minutes,” minutes, or tens of seconds – i.e., our “attention vacillates over time” in patterns.114 He believes “film editors are controlling this particular pattern, which mimics these waves that each one of us have. Statistically, when you look at all of those waves together, they have the same kind of pattern.”115 To demonstrate this, Cutting compiled “the length of all the shots” in 150 popular films “into a vector – a string of numbers – and performed Fourier analysis, which decomposes the string into sine waves. Those waves revealed a structure of many different-sized, simultaneously present, oscillating waves.”116 He and his colleagues discovered “that the shot structure in movies seems to have evolved over the last 50 years or so to come closer to” this 1/f ideal.117 As Cutting makes clear, the fact that a film approaches the 1/f pattern does not indicate whether the film is good or bad; the point is that such films are “harnessing our attention as we watch them.”118 109 110

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Peper & Harvey, supra note 107. George Lowery, Pattern in Movies Mimics That Found in Our Brain, Cornell Chron. (Mar. 9, 2010), https://news.cornell.edu/stories/2010/03/study-pattern-movies-mimics-foundour-brain. One study found that the faster the average shot length, the faster the viewers’ spontaneous blink rate (SBR), which implied an increase in the attention level of volunteers. Celia Andreu-Sánchez et al., Eyeblink Rate Watching Classical Hollywood and Post-Classical MTV Editing Styles, in Media and Non-media Professionals, 7 Sci. Reps. (Feb. 2017), https:// www.nature.com/articles/srep43267. James E. Cutting et al., Quicker, Faster, Darker: Changes in Hollywood Film over 75 Years, 2 iPerception 569, 574 (2011) (footnotes omitted). Id. (footnotes omitted). Lowery, supra note 110. Id. Id. Id. Id. Id.

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Such enticing hooks do not have to be hidden or sophisticated. For example, as Catherine L. Franssen reports, “The formula for riveting television was figured out long, long ago. End each episode in a mini-cliffhanger, then end each season in a bigger one.”119 Franssen explains, “When faced with the acute stress of not knowing what is going to happen next, the body produces an excess of CRH, a hormone that mediates the release of other stress hormones in the body.”120 She continues, “This causes the body to remain alert (our fight or flight response).”121 Alertness keeps us eager for the next installment: “When we check an episode (or season!) off our list and move to the next, it triggers that gorgeous neurochemical cascade of serotonin (satiety) and dopamine (pleasure).”122 But the satisfaction is fleeting: “This dopamine then motivates us to keep watching more, creating a feedback loop that is seemingly never ending.”123 Like TV shows and film, video games have their own host of hook techniques. Video game designers like to take ideas that are simple yet fiendishly addictive and give them cool or at least innocent-sounding names such as energy systems, color coding, ludic loops, and infinite formats. One tool often used in casinos is the variable-ratio schedule. The American Psychological Association states that “in free-operant conditioning,” it is a “type of intermittent reinforcement in which a response is reinforced after a variable number of responses.”124 Variable ratios rest on rewarding players at different times instead of on a consistent schedule. The same works for punishment. The idea is to keep the user guessing when they will be rewarded. A second technique to hook players is energy systems. Game designs permit people to play for free for five or ten minutes, after which they are told they can continue the game only if they pay immediately; otherwise, they must wait five or ten hours to play again. A variation on this method is that the player’s character slows down or runs out of energy as the free minutes run out – hence the “energy” in the technique’s name. The idea is to get us invested in the quest and then activate our aversion to loss – i.e., we desire to pay to continue playing so we do not lose out on our progress.125 A third hook is color coding. Video game designers distribute slightly different versions of a game level or mission to different people – for example, 100,000 gamers 119

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Catherine L. Franssen, The Netflix Addiction: Why Our Brains Keep Telling Us to Press Play, HuffPost (Dec. 6, 2017), https://www.huffpost.com/entry/the-netflix-addiction_b_8473094. Id. Id. Id. Other researchers believe that when we finish a season, we feel “sad, lost, [and] a sense of emptiness.” David J. Hill, UB Researcher Studies Effects of Binge-Watching on Health, UBNow (Apr. 1, 2019), http://www.buffalo.edu/ubnow/stories/2019/04/kruger-binge-watching .html. Franssen, supra note 119. American Psychological Association, Variable-Ratio Schedule, APA Dictionary of Psychology, https://dictionary.apa.org/variable-ratio-schedule (last visited Aug. 11, 2019). Alter, supra note 79, at 154–56.

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get the yellow modification, another 100,000 get the purple tweak. Designers monitor to see which version is the most popular and then adopt it for everyone going forward. At this point, they create another color coding variation on a different aspect of the game. According to Adam Alter, “what you’re left with after, say, 20 generations is this weaponized evolved version of the game, or a weaponized evolved mission, that is maximally addictive.”126 A fourth tool is the ludic loop, which is related to Mihaly Csikszentmihalyi’s concept of flow.127 The basic principle is that people become engrossed in a challenge that is neither too easy nor too difficult for their skill level. Csikszentmihalyi’s insight was meant to inspire us to create and allow us to experience positive well-being by building mastery, through proportionally more difficult challenges as our skill level increases. Yet game designers have refashioned flow into ludic loops – “from the Latin ludere, for playful. You enter a ludic loop when, each time you enjoy the brief thrill of solving one element of a puzzle, a new and incomplete piece presents itself.”128 This triggers a dopamine release as each element is done – “to the point where the brain’s own reward becomes all-consuming. The brain gets addicted to its own chemicals.”129 Video game architects take this innocent insight and beat us over the head with it through routinely presenting a new ludic loop, one after another. Video games that by design can never end – that one could in theory play until collapsing momentarily or in a casket – are termed infinite format games. Just as with ludic loops and energy systems, designing a game to be infinite is purposefully attempting to take as much time from individuals as possible through exploiting our motivations. Bennett Foddy states, “Some designers are very much against infinite format games, like Tetris, because they’re an abuse of a weakness in people’s motivational structures – they won’t be able to stop.”130 In addition to not building in a natural stopping point at the end of the game, designers can do the same within the game by not constructing natural points to pause, such as levels. As you can imagine, these techniques and others become more powerful when used together. David B. Dillard-Wright notes, “As games get even more immersive, with augmented reality and virtual reality features, combined with monetized incentives and built-in conditioning, the addictive aspects seem likely to increase in the years ahead.”131 126

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“Irresistible” by Design: It’s No Accident You Can’t Stop Looking at the Screen, Fresh Air, NPR (Mar. 13, 2017), http://www.npr.org/sections/alltechconsidered/2017/03/13/519977607/irre sistible-by-design-its-no-accident-you-cant-stop-looking-at-the-screen (interview with Adam Alter). Mihaly Csikszentmihalyi, Flow: The Psychology of Optimal Experience (1990). Alter, supra note 79, at 177. Vance, supra note 62. Adam Alter, How Technology Gets Us Hooked, Guardian (Feb. 28, 2017, 1:00 AM), https://www .theguardian.com/technology/2017/feb/28/how-technology-gets-us-hooked (quoting Bennett Foddy). Dillard-Wright, supra note 86.

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Excessive Copyright’s Role Tim Wu’s book The Attention Merchants examines ad men’s resourceful methods of commodifying our attention. He states, “The past half century has been an age of unprecedented individualism, allowing us to live in all sorts of ways that were not possible before.”132 Wu believes, “The power we have been given to construct our attentional lives is an underappreciated example. Even while waiting for the dentist, we have the world at our finger tips: we can check mail, browse our favorite sites, play games, and watch movies, where once we had to content ourselves with a stack of old magazines.”133 Yet “with the new horizon of possibilities has also come the erosion of private life’s perimeter. And so it is a bit of a paradox that in having so thoroughly individualized our attentional lives we should wind up being less ourselves and more in thrall to our various media and devices.”134 I would add that such attention merchants are emboldened in part through social media, which is enabled by new technology, as he explores, but also by our excessive copyright regime, which he does not address. Wu argues, “Without express consent, most of us have passively opened ourselves up to the commercial exploitation of our attention just about anywhere and anytime.”135 He calls for willpower: “If there is to be some scheme of zoning to stem this sprawl, it will need to be mostly an act of will on the part of the individual. What is called for might be termed a human reclamation project.”136 I agree with Wu’s call for individual action, a demand-side solution, yet I believe the forces at play unleashed by extreme copyright and screens are daunting opponents.137 While one person can, in theory, successfully take on an army of soldiers or corporate staff with flush bank vaults, we all know the fight is grossly uneven. Human willpower can be heroic, yet we also need supply-side solutions, the most important of which is copyright reform.138 Big Copyright would not fight to increase its sizable bounty, would not devote massive resources to product irresistibility, if extreme copyright did not enable such rewards. Copyright is not an ethical imperative that trumps all other considerations, any more than corporate greed trumps the happiness of people or the health of nations. Copyright needs a new beneficiary of its power to mold behavior.

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Wu, supra note 1, at 342–43. Id. Id. Id. Id. I offer a few supply-side proposals in the last chapter of this book. Besides copyright reform, all other demand-side solutions are likely partial, second-best attempts to reduce harm. Yet there are practical, nonlegal tools to give people a chance in their fight against corporate creatives and their financial backers. I offered a few dozen ideas in a past book, Big Copyright versus the People.

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effects of decreasing copyright There is no longer enough information left to tell how much good, or how much harm was done to Byzantine society by the seemingly pathological fascination with chariot racing of the citizens of Constantinople. Similarly, we can only speculate about the positive or negative effects of the interminable erudite debates, favorite pastime of the Florentine upper classes of the 17th and 18th centuries. Did they sharpen a participant’s faculties, were they largely a form of escape, or did those ritualized disputations prolong that society’s survival? And what about the famous Mayan ballgames, or the Roman circuses? Did they strengthen the commonweal, or sap its energies? —Robert Kubey and Mihaly Csikszentmihalyi139

The effects of Florentine debates and Mayan ballgames may be forever unknowable, yet the same does not have to be the case for current cultural practices. Yes, our knowledge of the precise effects of existing laws is imperfect, given the limitations inherent in statistical analysis and the inability to run experiments on a societal level. This does not mean that copyright’s effects are as mysterious as Byzantine chariot races. The fact that copyright is failing to inspire most of us is concerning. The fact that it is, practically speaking, putting us in a deathlike stupor is devastating.

Effects on Corporate Art To claim that a dramatic decrease in copyright protection would not stem the flow of polished corporate entertainment would beg the question of the utility of copyright law, while simultaneously negating opposition to such reform – i.e., if copyright does not support entertainment conglomerates in their efforts to supply entertainment, then they could continue producing without any copyright.140 At one extreme, if you were a Hollywood executive, would you be willing to pay actors $20 million to star in your $250 million film if your monopoly protection lasted for a day, week, or month? No. That is unless you did not care about losing money because you had overriding goals, such as getting a particular political message out to as many people as possible, wanting to share a piece of art that you genuinely believed was so beautiful it was worth losing money on, or not caring about losing money on the project because you were using it to sell a different

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Robert Kubey & Mihaly Csikszentmihalyi, Television and the Quality of Life: How Viewing Shapes Everyday Experience xii (1990). Corporations have been known to argue that excessive copyright is needed for individual artists, but when in history do corporations put themselves second? Any such argument is duplicitous on the part of profit-seeking entities. Yes, a few individual artists become fabulously wealthy because of extreme copyright, but the vast majority do not practically benefit from it. See generally Glynn S. Lunney Jr., Copyright’s L Curve Problem, SSRN (posted Mar. 18, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338060.

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product as advertisers do.141 At minimal amounts of protection, any executive focused on profits, instead of the higher values of art, would contemplate financially backing only media that could recoup the cost of production within such a short timeframe. Thus, while we do not know exactly how much of a drop in entertainment production would occur with any dramatic reduction in copyright protection, it is apparent why it would occur. A robust reduction in copyright would reduce companies’ willingness to invest in expensive media productions, yet copyright law is so extreme that a minor decline in protection might not make a dent in supply. Put yourself back into the shoes of the film executive; would your decision to produce a film hinge on whether copyright’s length was for 95 years or 100 years? If you are a rational profit maximizer, it would not, because very distant future profits are worth much less in current dollars, as they need to be discounted heavily. If the prevailing interest rate is 10 percent to borrow funds, a dollar in profits today is not equal to a dollar in profits even tomorrow, let alone 7 or 70 years from now. In fact, a dollar 100 years from now is worth a few pennies today given the power of compound interest. Thus, as a media executive, your decision to fund a project might be affected by whether copyright protection is 2 years versus 95, but very unlikely by whether it is 95 or 100. This is consistent with the United Kingdom’s Gowers Review on Intellectual Property, which states, “Evidence suggests that most sound recordings sell in the ten years after release, and only a very small percentage continue to generate income, both from sales and royalty payments, for the entire duration of copyright.”142 The report quotes a drummer for the bands Blur and The Ailerons, Dave Rowntree: “I have never heard of a single [band] deciding not to record a song because it will fall out of copyright in ‘only’ fifty years. The idea is laughable.”143 We have not seen a dip in copyright protection since the beginning of democracy in the United States. Thus we cannot empirically prove that if one happened it would result in fewer corporate works being made. A study by Kai-Lung Hui and I. P. L. Png suggests that only dramatic reductions would reduce the output of entertainment corporations. They studied the 20-year extension of copyright’s term in 1998 due to the Sonny Bono Copyright Term Extension Act from 75 years for corporate works to 95 years.144 Their results demonstrate that this large copyright

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Given space limitations, I will concentrate in this section on copyright term reform and its effects on the production of entertainment corporations. HM Treasury, Gowers Review of Intellectual Property, at 52 (2006) (UK), https://assets .publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228849/ 0118404830.pdf. The report provides further evidence that the pattern is similar in other art forms. Id. Sonny Bono Copyright Term Extension Act, Pub.L. No. 105-298, 112 Stat. 2827 (1998). Technically, the copyright term for corporate works is the shorter of 95 years from publication or 120 years from creation in the United States.

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extension did not motivate Hollywood to increase its production of movies.145 Their work could reasonably be read to intimate that if the reverse were to happen now – a 20-year decrease in copyright protection – little would change given the existing, extreme copyright laws. This appears reasonable in part because five Nobel Prize– winning economists have argued that the 1998 Copyright Term Extension Act put us at near infinite copyright length in terms of expected earnings from copyright for artwork given any revenue from the extension would happen so far into the future.146 The added expected revenue increase would be no more than one-third of one percent.147 Justice Breyer agreed, stating, “The present extension will produce a copyright period of protection that, even under conservative assumptions, is worth more than 99.8 percent of protection in perpetuity.”148 We need to approach the other end of the spectrum – zero. For a moment, assume that copyright were completely eliminated. Screen-based forms dominated by corporations, such as TV, film, and video games, would experience significant financial pain because new programming would be copied almost instantly by others and distributed for free online. Corporate-made video games would also be hit hard because others could copy them legally and then not charge individuals to play, plus give away add-ons. TV and film studios could still generate some income through product placement, merchandise sales, and possibly new alternative forms of revenue generation.149 Yet product placement revenue is relatively modest, and merchandise sales do not apply to all film characters – for example, few consumers probably want a figurine of anyone in Trainspotting or The 40-Year-Old Virgin. Plus, relying on contract law instead of copyright would fail because of the practical challenge of attempting to prove which of the thousands or more costumers broke the agreement not to copy the work. International sales would buttress Hollywood to a degree, although developing countries do not provide meaningful revenue to Hollywood. Yet foreign countries might be tempted to reduce their extreme copyright laws if pressure from the United States disappeared. Partially indicative of this is that the world’s second-largest market for films – China – has imposed an “informal cap” of only “about 34 foreign films a year” that can be shown in theaters in China.150 Further, “[e]very film must 145

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See generally Kai-Lung Hui & I.P.L. Png, On the Supply of Creative Work: Evidence from the Movies, 92 Am. Econ. Rev. Papers & Proc. 217 (2002). Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners at 10–12, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). Id. (assuming an author lives for 30 years after the book’s release). Eldred v. Ashcroft, 537 U.S. 186, 255–56 (2003) (Breyer, J., dissenting). Merchandise sales would in part rely on protection through trademark law and be relevant only to certain productions. Further, we might have longer-form ads to fill the gap – i.e., more product placement. But this would annoy – as Keats said, “We hate poetry that has a palpable design upon us.” Letter from John Keats to John Hamilton Reynolds (Feb. 3, 1818), in The Letters of John Keats 95 (Maurice Buxton Forman ed., 4th ed. 1952). Sheryl Tian Tong Lee & Jinshan Hong, China Is Stifling Its Own Movie Business, Bloomberg (July 10, 2019), https://www.bloomberg.com/news/articles/2019-07-10/china-s-movie-business-is-

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be cleared by the government” and the foreign films must share their revenue – getting only “about 25 percent of box-office sales, significantly less than in North America and other markets.”151 Also in China, “[p]rime movie-going periods like big national holidays and summer are usually reserved for local fare.”152 While middleincome dictatorships could quickly alter trade arrangements and domestic laws if developed countries dramatically reduced copyright, other middle-income countries might simply ignore unauthorized copying of foreign works and instead concentrate their enforcement efforts on protecting domestic entertainment corporations. Further, hopefully all middle-income countries would reduce their copyright to moderate levels to motivate local artists to help build inclusiveness at home. If copyright is not totally eliminated, these effects would be mitigated to some degree for screen-based forms of entertainment, yet Big Copyright would still produce less. The shorter copyright’s term, the fewer individuals would pay to immediately consume new entertainment, as opposed to waiting to watch it for free.153 If copyright lasted only three months, Hollywood would no longer be holding all the cards because many individuals might simply wait until the copyright expired. If this routinely happened, it would stop Big Copyright from making entertainment that could not recoup its cost within a condensed period of protection, which would potentially eliminate the funding available to make such works so addictive. Critics might cry that dramatic copyright reform would turn economic growth negative, at least for a while, and hence should not be considered. Yet, even during the largest economic expansion in US history starting from the late 2000s, most of the gains from economic growth have gone to the elite.154 Reuters notes that this expansion is “perhaps best characterized by the excesses of extreme wealth and an ever-widening chasm between the unfathomably rich and everyone else.”155 So yes, substantial copyright reform would hurt the 1 percent and the 0.1 percent, yet if the rich have not bothered to help those struggling, why should the favor be returned?

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taking-a-hit-from-its-own-government. China is also imposing harsher censorship over domestic works and has cracked down on tax evasion among actors and executives. In 2018, President Xi Jinping charged the Communist Party’s propaganda office with regulating films, id. Id. Id. This approach is nothing new – Hollywood has been using it to extract as much consumer surplus as possible through delayed releases, first showing content in movie theaters, then releasing it at different times online, on DVD, etc. Yet see Thorsten Hennig-Thurau et al., The Last Picture Show? Timing and Order of Movie Distribution Channels, 71 J. Marketing, Oct. 2007, at 63, https://www.marketingcenter.de/sites/mcm/files/downloads/research/lmm/litera ture/hennig-thurau_et_al._2007_jm_the_last_picture_show_timing_and_order_of_movie_dis tribution_channels.pdf. Reuters, We’re in the Longest Economic Expansion Ever – But It’s the Rich Who Are Getting Richer, NBC News (July 2, 2019, 9:26 AM), https://www.nbcnews.com/business/economy/were-longest-economic-expansion-ever-it-s-rich-who-n1025611. Id.

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Put more dispassionately, the economic and political system tilts in favor of those with money and power, so why should we not sacrifice some of the rich’s wealth in order to make the political and economic playing field more equal and just? Additionally, we fetishize economic growth in the United States. We need to expand our thinking about measures of a society’s health to include economic security (higher minimum wages), leisure (more paid vacation), access to low-cost health care, and freedom from not overconsuming half of our waking hours. Further, it is not clear that long-term economic growth would suffer. It is conceivable that the reduction in overconsumption that copyright reform ushers in would increase productive activity and national savings. We have allowed the elite to skew our economy to the point where elite artists, entertainment executives, and athletes make obscene amounts – for example, $124 million in a year for Dwayne “The Rock” Johnson, $109 million for Cristiano Ronaldo, and $129 million for David Zaslav, CEO of Discovery.156 Even former politicians stipulate what food should be provided to them during their $200,000 talks – for example, Joe Biden insists on a caprese salad, angel-hair pasta pomodoro, raspberry sorbet, and biscotti.157 If copyright is limited, so would be expenditures on new works.158 Yet in such an age of excess, could actors and executives, after copyright reform, go back to when the profession was more grounded in reality, as when “actors simply brought their own food in brown bags” to the film set each day?159 Effects on Noncorporate Art The financial benefits of excessive copyright protection primarily flow to corporations and an elite group of artists. This is in part because entertainment corporations are the most motivated by profit, and solely profit. While there may be some artists who do not care about creating beautiful work or art that conveys important messages, human motivation is more complex than corporate motivation. Few artists 156

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Michael Prince, The World’s Highest-Paid Actors 2018, Forbes, https://www.forbes.com/pic tures/5b7b16ada7ea43757f2cb680/2-dwayne-the-rock-johnson/#393e64ded0dd (last visited Sept. 29, 2019); Kurt Badenhausen, The World’s Highest-Paid Athletes, Forbes (June 11, 2019, 10:00 AM), https://www.forbes.com/athletes/#168aa38e55ae; and Brandon Katz, Here Are Hollywood’s Highest-Paid Executives, Observer (May 6, 2019, 10:57 AM), https://observer .com/2019/05/bob-iger-salary-reed-hastings-ted-sarandos-hollywood-highest-paid-executives. Greg Morabito, Joe Biden Just Can’t Get Enough Angel Hair Pasta, Eater (June 25, 2019, 3:00 PM), https://www.eater.com/2019/6/25/18744466/joe-biden-angel-hair-pasta. At this modest cost level, Hollywood productions could approach Nollywood works. To make their films genuinely comparable, more changes would be necessary, including reducing production staffs from hundreds to a few dozen, dramatically reducing special effects, etc. Yet production quality would substantially decrease with such a cost structure, possibly significantly reducing how many individuals would want to consume the works. Susan Stamberg, How Hollywood Gets Fed: A Lesson in Craft Service, NPR (Mar. 4, 2010, 12:00 AM), https://www.npr.org/templates/story/story.php?storyId=124245252. Later, “Universal Studios started a tradition of rolling a coffee and doughnut cart to each stage – everyone would put a nickel in the cup in the morning.” id.

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become artists without a range of motivations that go beyond money. Hence any reduction in financial incentive to create will be felt less dramatically by most artists than by companies. As important, if not more so, is the fact that the types of entertainment that individuals overconsume the most are usually distributed through screens. Such entertainment usually adheres to conventional art forms – television shows, films, video games, etc. – that generally entail collaboration among dozens, if not hundreds, of studio artists. Putting aside YouTube cat videos and simple video game apps, such art forms are more prone to be tied to corporations that have the money to coordinate and pay for elaborate productions (in addition to neuroscience hook techniques). Thus corporate-financed, screen-distributed entertainment is influenced in radically different ways by excessive copyright than many individual artists who paint, sculpt, compose music, or write poems and short stories. Especially in the fine arts, where only handfuls, not armies, of artists collaborate, and where solo artists are common, artists could continue their creative activities largely spared the losses sustained by entertainment corporations making screen-based art. This would be the case because most painters and sculptors, besides an elite, celebrity group, do not currently rely on copyright for much revenue at all. The value of their art primarily stems from selling the underlying physical object they create – a painting or sculpture – or receiving commissions and fellowships through foundations, universities, and patrons, not from striking licensing deals.160 While other art forms such as poetry rely on copyright more and can be displayed on screens, copyright does not generate much revenue for poets given the dominance of other art forms in the marketplace. Yet other art forms that can be digitally reproduced without screens, such as music, depend more or less on copyright to generate revenue depending on how popular a genre is and the individual piece itself. Individual musicians and authors could rely on digital tip jars, yet it would likely be harder to get consumers to tip middle-men such as producers and editors.161 There will be a small, elite group of noncorporate artists who will suffer financially from copyright reform – such as Boram, the six-year-old South Korean YouTuber who has apparently earned millions from her art.162 Yet most individual, noncorporate artists have varying motivations to create and probably do not currently feel the motivating effects of copyright, even in its extreme form.163 Hence relatively few existing artists in developed countries will stop creating if copyright is 160

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See generally Amy Adler, Why Art Does Not Need Copyright, 86 Geo. Wash. L. Rev. 313 (2018). Given the nature of music concerts, ticket sales would also help musicians. Julia Hollingsworth & Ji Su Lee, Boram, 6-Year-Old South Korean YouTuber, Buys $8 Million Property, CNN (July 27, 2019, 1:00 PM), https://www.cnn.com/2019/07/26/asia/boram-youtubekorea-intl-hnk/index.html. See generally Lunney, supra note 140.

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dramatically reduced.164 Plus, even if a significant number of artists did decide to quit due to copyright reform, they would hopefully be dwarfed over time by a growing number of individuals who start to create with some of their new free time generated by consuming less. Thus the substantial reduction in copyright in rich countries could lead to an increase in noncorporate art. Such increase would be welcomed because the content would not be designed to be addictive, and much of it would be shared with family, friends, and fellow artists. This would generate real communication among individuals through sharing their work with each other, instead of the existing one-way street from entertainment corporations to consumers. Ultimately, the question is not whether more noncorporate art would be created, but whether reducing copyright will get us closer to the point where we all create. One policy on its own cannot get us there, but extreme copyright is a critical current impediment to encouraging everyone to pick up drum sticks or knitting needles.

Reduction in Consumption If copyright protection is dramatically reduced, not only would entertainment corporations produce significantly less content, but individuals would consume substantially less entertainment over time. This is because there is only so much old, international, and amateur content people will substitute for the lack of new, polished entertainment. While the long-term decline would be large, consumption would not fall precipitously overnight – for example., many of us have long Netflix queues.165 Yet relatively few individuals desire to watch all 5,599 titles on Netflix available within the United States, outside of obscure competitions hatched between friends to see who first conquers all of Netflix.166 If some viewers are getting to the end of their backlog, they might start watching other content in an ironic way or start seeking new pleasures from it, such as playfully poking fun at works.167 Yet limits to such new uses, or derivative consumption, of works would also emerge. Our difficulty turning off screens would gradually yield to boredom. Substitution of other sources of entertainment for Big Copyright content would not be immediate 164

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Of course, some artists who are primarily interested in money might stop creating due to copyright reform because it would take away the remote chance that they might become wealthy. Yet Netflix only “accounts for 10 percent of TV viewing time.” Peter Kafka, Netflix Is Finally Sharing (Some of ) Its Audience Numbers for Its TV Shows and Movies. Some of Them Are Huge., Vox (Jan. 17, 2019, 4:02 PM), https://www.vox.com/2019/1/17/18187234/netflix-viewsnumbers-first-time-bird-box-bodyguard-you-sex-education. The figure is as of January 2018 given that material is added and removed routinely. Sam Cook, 60+ Netflix Statistics and Facts Stats That Define the Company’s Dominance, Comparitech (Mar. 14, 2019), https://www.comparitech.com/blog/vpn-privacy/netflix-statistics-facts-figures/. I’d like to thank Aaron Perzanowski for this idea.

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because, first and foremost, we have been acclimated to polished, high-productionvalue content. While there are exceptions, older screen-based content generally shows its age. Styles of cinematography and editing change (narrative structures, the speed of cutting from one angle or scene to another, the types of shots) as do the cultural trends old movies capture (styles of dress, haircuts, speech, and movement). The same can be said of much international screen-based forms of entertainment.168 Plus, advertisements would continue to be made professionally, because ads are not reliant on copyright. Slick ads would remind us of the gulf in production values between new, professionally made screen-based ads and old, international, or amateur content, making it harder to consume too much of the latter. Second, consuming a modest amount of old, international, or amateur content can be interesting, but since much of it does not contain neurological hooks to keep us watching, we will not necessarily overconsume such content. For example, it is one thing to splurge on amateur videos of babies one day; it is another thing altogether to do so every day for the rest of your life. This is not an insult to individual filmmakers (or babies). It is simply hard to compete against hundreds of full-time artists working as a team for months or years on one project. Imagine the equivalent in sports. Even a Lionel Messi by himself could not compete against 300 opponents. Third, we have preferences for genres, subgenres, actors and actresses, directors, style, production quality, etc. Consumers might alter their preferences to a degree, but many would have limits as to what they would be willing to consume, refusing to cross certain lines. For example, few 40-year-olds want to watch Dora the Explorer, even if their kids are present. Some individuals refuse to watch horror films. Others find romantic comedies to be horror. Of course, copyright reform will probably dampen, but not stop, the creation of new corporate entertainment. Yet individuals loosened from Hollywood’s grip may discover new art forms to consume – adding, say, poetry or stand-up comedy to the mix. Some may spend more time connecting with friends on social media to manage their withdrawal symptoms. No matter how gradually recovery happens or how we handle it, at some point we will decide to spend more of our leisure time doing activities other than consuming corporate entertainment. Without an 168

The same is not the case for music. See generally Joe Coscarelli, Spanish-Language Music Has Gone Global. Watch Rosalía Make Her Hit “Con Altura,” N.Y. Times (July 8, 2019), https:// www.nytimes.com/2019/07/08/arts/music/rosalia-j-balvin-con-altura.html. Yet my concern is with screen-based forms of entertainment, such as films, TV shows, and video games, not music. Also, while little of the content available on Netflix is foreign, Netflix is spending substantial sums to diversify its offerings. Part of this is dubbing content. Netflix “routinely dubs content in 10 languages, and as many as 26 if the show is for children.” Katie Collins, Netflix’s Plan to Get Everyone Watching Foreign-Language Content, CNET (Nov. 7, 2018, 2:19 PM), https://www.cnet.com/news/netflixs-plan-to-get-everyone-watching-foreign-language-content. A 2016 estimate claims that 5 percent of content available in the United States on Netflix is “foreign-language series.” Kim Masters, The Netflix Backlash: Why Hollywood Fears a Content Monopoly, Hollywood Rep. (Sept. 14, 2016, 9:25 AM), https://www.hollywoodreporter.com/ features/netflix-backlash-why-hollywood-fears-928428.

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overwhelming flood of addictive new content, it is highly unlikely that Americans will continue to consume an average of 9.5 hours a day of entertainment. Even if this statistic falls “only” in half, we would get a large chunk of our lives back – well over a decade of time.

Effects on the Quality of Art An argument can be made that if we reform copyright, we would allow more artistic geniuses to develop. The theory is simple and straightforward. If Americans overconsume on average so much, there are hundreds of millions trapped in a dynamic that leaves little time for anything else in life, including attempting to express oneself through art. If we can get a large portion of people out of this overconsumption prison, they could still consume, but less so, which would open up time for them to do other things in life.169 Some of these newly empowered individuals would likely spend at least part of their added free time creating. All things being equal, if more people are creating, there is a greater chance that society would discover artists who create exceptional works over time. To be clear, the number of polished, highproduction-value works of entertainment would fall precipitously in certain artistic mediums, though more true masterworks might be created. Furthermore, a case can be made that with dramatically fewer new corporate works after copyright reform, more voices could be heard, leading to more diverse art. In essence, without all the superhero movies, remakes, and sequels, budding artists might consume a different set of works. Discovering and listening to different voices, experiencing creations that invite conversation instead of controlling it, finding inspiration in art made by fellow humans instead of getting zombified by the shocks of the Hollywood machine – these new aesthetic experiences would spark individuals to create. Finally, corporate artists who are busy working on slick, expensive films, TV shows, and video games might be financially freed to create wholly in their own voice if copyright is significantly reduced. Currently, the allure of millions of dollars entices many good or great artists to work on corporate entertainment. If $200 million films are no longer being made, these unemployed artists could go off on their own and, over time, potentially create masterworks absent the golden handcuffs of Hollywood.

what i am not suggesting Having presented how dangerous overconsumption is and argued for the importance of creativity, I want to quickly make explicit what I am not suggesting about creative activity and its link to copyright. 169

While many geniuses have also been obsessives, we praise them for what they eventually produced, not what they consumed.

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Foremost, I am not arguing that society should ban anyone from creating or consuming. Hume’s vision of negative liberty expressed in his harm principle – that the state has no right to force you to do something or prevent you from doing something if you are not harming others – is a pillar of democracy. Yet some might believe that I am arguing for a paternalistic policy shift. To be clear, I believe individuals should be free to decide how much entertainment they consume. Arguing for copyright reform is not dictating what society does. Copyright reform does not mean a ban on any action. Further, our existing copyright laws already provide incentives to create artwork. I am suggesting only that we need to recalibrate the incentives already in place. My argument is no more radical than arguments for maintaining the existing amount of copyright protection. If reducing incentives to create is paternalistic, then so is creating incentives to create, along with a host of other laws. From Hume’s perspective, the actions of Big Copyright are harming others; to reduce the harm, we should take away a carrot that we currently provide to entertainment corporations. Further, I do not want to reduce creative activity overall; I want to increase it but simultaneously balance it out between corporations and individuals. This is similar to supporting economic growth but not wanting to see all the gains from it go to the top 1 percent. One might applaud the effort to reduce overconsumption by reforming copyright, yet desire that people spend their new free time as they choose. I completely agree. I want people to decide how to spend their time, including spending some of it consuming, if they so choose. I do not want to force people to spend time seeing friends, volunteering, consuming, or creating, nor do I think any of these activities are better than the others. Given the solitary confinement of addiction to corporate entertainment, I do hope that individuals will reserve time for activities that can help make life more robust. Since this book is about how to reform a law, copyright, that regulates artistic efforts, it seems appropriate to recommend the act of creating art as one such activity that can bring richness to life. It is a trope to say the internet has turned us all into creators through its radical democratization of communication. The internet has given all of us cheaper tools to create certain types of art and an easy and inexpensive means of sharing it. Yet we must still push back against the multinationals that inundate us with slick content and brand messages. Many people create, yet many more do not. The fact that unknowns can become YouTube and Instagram stars does not mean that overconsumption is in check or that hundreds of millions of individuals can shake off our entertainment addiction. Despite the liberating powers of the internet, we have become more trapped in overconsumption. We need to reduce Hollywood’s control over our lives and cultivate a norm of contributing as well as consuming. Just as responsibilities are intricately tied to rights, creation should be entwined with clicks. I do not care what individuals create. For example, I do not believe that screenbased art forms such as television are inferior to the traditional fine arts such as

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painting. My aim is to show that screen-based forms of entertainment, unlike fine arts, are more prone to overconsumption because they enable nefarious techniques that make it difficult for us to stop watching. Screen-based entertainment has become a tool of corporate control. Finally, I am sympathetic to Robert Kubey and Mihaly Csikszentmihalyi’s view that “television viewing, like other cultural habits, would be ideally studied and evaluated in the widest possible context.” TV is one of many art forms, any of which can have variable effects: “A simple comic strip may provide benefit to certain readers under certain circumstances, while not a few great esthetic works of art and religion have produced much conflict and resentment.”170 I am attempting to refine our collective stance on copyright globally in this manner to acknowledge that the effects of copyright can vary from country to country. Of course, we might even be able to go further in crafting copyright, but we must not fail to apprehend the destructiveness of overconsumption from fear of missing the totality of its meaning.

the methods to reduce copyright protection The challenge is how can we get Congress to see that our collective overconsumption cannot end well. This is an ordeal given that Hollywood owns Congress through a combination of campaign contributions, giving congresspeople access to the glimmering cachet of stars, and unstated, yet clearly visible personal financial inducements that take effect after public life, such as much higher paying jobs lobbying the next generation of congresspeople who take campaign contributions from media conglomerates. Assuming this monumental challenge of corporate capture can be solved, working out the mechanics of how to reduce copyright protection is relatively straightforward – simply significantly scale back all aspects of our current copyright regime. As mentioned earlier, no one can precisely know ex ante how large a reduction in copyright protection is needed to stop our plague of overconsumption. Nor can we know before commencing reforms exactly which reductions in copyright protection – for example, reducing the length of protection versus increasing the scope of fair use – will be more effective in giving people back precious time in their day. This is not a fault or weakness in the theory. Even if we had a few examples to examine, we would have an incomplete understanding of the effects. The challenge is that there is scant historical precedent on the effects of a reduction in copyright. With this limitation in mind, we need to reduce copyright significantly and observe the effects. If the reforms do not lead to a substantial decrease in consumption, further declines in the amount of copyright would be required. The only concern about how much to initially reduce copyright is considering how many rounds of reductions might be politically feasible. 170

Kubey & Csikszentmihalyi, supra note 139, at xii.

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As a first cut, reducing copyright’s term to the range of six months or a few years might be required. Currently, copyright terms are uniform across artistic mediums, yet this does not necessarily have to be the case. Thus, for example, we could dramatically reduce the copyright term for film and video while keeping a longer term for painting and sculpture, given that copyright multinationals largely capture our attention through screen-based forms of entertainment. We could also simply trim the scope of protection by completely stripping copyright protection from certain art forms. Again, the most likely candidates would be art forms that are distributed through screens. Numerous other suggestions exist, which could be combined to enhance the effectiveness of copyright reform in reducing overconsumption.171

the importance of creativity Life dictates its terms to us. From nature’s indifference to our continued existence to how we are nurtured, we can quickly get a sense that we do not have control over our lives or a voice in the world. We express this desire for control, communication, and meaning in many ways. Henry Wadsworth Longfellow articulated such concern through pointing out the transient nature of any one life and how it could be fought by art. He wrote: Art is long, and Time is fleeting, And our hearts, though stout and brave, Still, like muffled drums, are beating Funeral marches to the grave.172 171

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These suggestions are targeted directly at stemming the overconsumption that excessive copyright protection enables, yet there are numerous other reforms that could help reduce other harms generated by our existing copyright regime, while possibly reducing consumption on the margins. One harm already discussed is that our existing laws make it legally perilous for one artist to borrow without permission from another. For example, numerous reforms to the fair use doctrine, such as establishing bright-line safe harbor protections about how much borrowing would be permissible, could reduce such uncertainty. Another harm of our existing copyright regime is the vast trove of copyright orphans – works under copyright where either the artist is not known or it is unclear how to contact the artist to seek a license to use their work. Such a problem could be significantly reduced, going forward, by simply requiring any artist seeking copyright protection to register with the US Copyright Office. Also, copyright exhaustion could be reformed to reduce the “crisis driven by the widening gap between the norms and practices of the public and a legal code intended to govern that conduct.” Aaron Perzanowski, Copyright Exhaustion and the Personal Use Dilemma, 96 Minn. L. Rev. 2067, 2080 (2012). Such reform, Perzanowski states, could provide consumers “freedom to innovate with items that they own . . .. Such innovations are often difficult to predict and usually occur initially in private and on a small scale, making the prospect of seeking copyright holder permission for innovation impracticable,” id. at 2082. See also Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. Rev. 889 (2011). Henry Wadsworth Longfellow, A Psalm of Life (from The Voices of the Night), in Poems and Other Writings 4 (J.D. McClatchy ed., Library of America 2000) (1838).

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André Malraux had a similar sentiment: “Art is a revolt against man’s fate.”173 The Welsh poet Dylan Thomas wrote: In my craft or sullen art Exercised in the still night When only the moon rages And the lovers lie abed With all their griefs in their arms, I labour by singing light Not for ambition or bread Or the strut and trade of charms On the ivory stages But for the common wages Of their most secret heart.174

Explaining why he wrote, George Orwell said, “From a very early age, perhaps the age of five or six, I knew when I grew up I wanted to be a writer. Between the ages of about seventeen and twenty-four I tried to abandon this idea, but I did so with the consciousness that I was outraging my true nature and that sooner or later I would have to settle down and write books.”175 Other artists express the need to create as a search for meaning. The writer Marge Piercy elegantly observed, “The pitcher cries for water to carry and a person for work that is real.”176 The same might be said of creating. The nineteenth-century English artist William Morris famously paraphrased John Ruskin: “Art is man’s expression of his joy in labour.”177 Such theories espoused by artists have been confirmed by scholars. In one experiment, volunteers made origami creations. Then experimenters asked them how much they would be willing to pay for another’s “amateurish origami creations” as opposed to how much they would pay for their own “equally amateurish” origami artwork. The student volunteers were willing to pay more than four times more for their own artwork, which researchers believed indicated how the volunteers valued their own efforts at creation.178 Tom Stoppard, a Czech-born English playwright, has a character aver, “What is an artist? For every thousand people there’s nine hundred doing the work, ninety doing

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“L’art est un anti-destin.” Andre´ Malraux, Les Voix du Silence pt. 4, ch. 7 (1951). Dylan Thomas, In My Craft or Sullen Art, in Selected Poems 1934–1952, 136 (New Directions 2003) (1946). William Patry, How to Fix Copyright 15 (2011) (citing George Orwell, Why I Write 1 (Penguin Great Ideas 2005) (1946)). Marge Piercy, To Be of Use, in Good Poems 157, 158 (Garrison Keillor ed., Penguin Books 2002) (1973). William Morris, Art under Plutocracy (1883) from Lectures on Socialism, in 23 Collected Works of William Morris 164, 173 (Longmans Green & Co. 1915). Alter, supra note 79, at 173.

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well, nine doing good, and one lucky bastard who’s the artist.”179 This mixture of humor and seriousness is revealing. Society has not been organized to easily enable all of us to create. Even with the advent of modern conveniences such as dishwashers and cars, many feel time is more scarce than ever before given the demands of work.180 Stoppard appreciates the lucky status of the artist. He is not saying that artists do not struggle financially or have their own hardships; he is saying they experience life in a privileged way because they have the opportunity to create.181 A prison governor in Evelyn Waugh’s novel Decline and Fall concludes that “almost all crime is due to the repressed desire for aesthetic expression.”182 I am not going this far. Yet art is powerful and creation in general – not necessarily art, but any creative endeavor – is important to everyone. We need to work to make this a reality. Even the darkest, despairing poem is a seed of hope – not the message contained within but the fact of the poem’s existence. It is evidence that the writer has not given up on life. The poem’s existence is a challenge to others to make life contagious. This is no small feat: over 47,000 individuals took their lives in the United States in 2017.183 Suicide is the second leading cause of death not only for individuals between 35 and 44 years of age but also for those between 25 and 34, teens and young adults between 15 and 24, and kids between 10 and 14 years old.184 There has been a 33 percent ageadjusted increase in the suicide rate from 1999 to 2017.185 If one interprets Waugh’s call as a cry to communicate and establish relationships, extreme copyright creates a vicious circle of alienation from both. Excessive copyright incentivizes Hollywood to fill as many hours of our day as possible with its content – art contaminated by extra-artistic considerations, which makes us feel alone and powerless. We reflexively reach for more entertainment to console us, yet by doing so further reduce our connection to others. Countless artists and intellectuals from Kierkegaard to Nietzsche, Sartre to Camus, have argued that art helps us stave off boredom, allows us to leave a footprint during our short time on the planet, and enables us to forge our own meaning. Kurt Vonnegut’s letter to students at Xavier High School encapsulates the idea that to create is to experience becoming: 179 180

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Tom Stoppard, Travesties 28 (1975). Karol Jan Borowiecki, The Origins of Creativity: The Case of the Arts in the United States Since 1850, Trinity Economics Papers, Feb. 2019, at 11–12. In fact, US census data demonstrate not only that artists on average are paid less than other professionals but also that people who come from wealthy families and have more education are more likely to become artists. This makes sense if those with means do not have to worry about surviving financially. Id. at 12–13. Evelyn Waugh, Decline and Fall 232 (Little, Brown & Co. 2012) (1928). Suicide, National Institute of Mental Health (last updated Apr. 2019), https://www.nimh .nih.gov/health/statistics/suicide.shtml. Id. Holly Hedegaard et al., Suicide Mortality in the United States, 1999–2017, Centers for Disease Control and Prevention (Nov. 2018), https://www.cdc.gov/nchs/products/datab riefs/db330.htm.

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Practice any art, music, singing, dancing, acting, drawing, painting, sculpting, poetry, fiction, essays, reportage, no matter how well or badly, not to get money and fame, but to experience becoming, to find out what’s inside you, to make your soul grow. Seriously! I mean starting right now, do art and do it for the rest of your lives . . .. Dance home after school, and sing in the shower and on and on. Make a face in your mashed potatoes. Pretend you’re Count Dracula. Here’s an assignment for tonight, and I hope Ms. Lockwood will flunk you if you don’t do it: Write a six line poem, about anything, but rhymed. No fair tennis without a net. Make it as good as you possibly can. But don’t tell anybody what you’re doing. Don’t show it or recite it to anybody, not even your girlfriend or parents or whatever, or Ms. Lockwood. OK? Tear it up into teeny-weeny pieces, and discard them into widely separated trash receptacles. You will find that you have already been gloriously rewarded for your poem. You have experienced becoming, learned a lot more about what’s inside you, and you have made your soul grow.186

Of course, Vonnegut signed the letter with a cartoon drawing. As Vonnegut suggests, the value of creating, to the creator, does not hinge on the aesthetic or intellectual quality of the artwork. As mentioned earlier, creating art gives us a method of communication, autonomy, and satisfaction in practice to gain mastery. It keeps us receptive to new experiences and enables us to take ourselves less seriously by helping us become less self-conscious about not being Leonardo da Vinci. Creating art aids us in accepting the arbitrariness of our past lot in life and the significant role of luck in our future, without being defeated by it. While the overconsumption of entertainment is linked to both physical and psychological harm, creation is tied to health benefits. Expressive writing has been correlated not only with lower levels of stress but also with mood improvements in those suffering from posttraumatic stress disorder and with improvements in working memory capacity in Japanese undergraduates.187 One study attempted to determine the lower boundary of how much writing would generate benefits and found that writing for only two minutes for two days was correlated with fewer health complaints.188 A study asking adult participants to make visual art for 45 minutes found that it reduced stress in 75 percent of participants, as measured by cortisol levels in their 186

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Letter from Kurt Vonnegut to Xavior High School (Nov. 5, 2006), Letters of Note (Oct. 28, 2013), http://www.lettersofnote.com/2013/10/make-your-soul-grow.html. See generally Joshua M. Smyth, Jill R. Hockemeyer & Heather Tulloch, Expressive Writing and Post-Traumatic Stress Disorder: Effects on Trauma Symptoms, Mood States, and Cortisol Reactivity, 13 Brit. J. Health Psychol. 85 (2008) and Masao Yogo & Shuji Fujihara, Working Memory Capacity Can Be Improved by Expressive Writing: A Randomized Experiment in a Japanese Sample, 13 Brit. J. Health Psychol. 77 (2008) (no improvement was found when volunteers wrote on “trivial topics”). See generally Chad M. Burton & Laura A. King, Effects of (Very) Brief Writing on Health: The Two-Minute Miracle, 13 Brit. J. Health Psychol. 9 (2008).

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saliva.189 When asked to provide a written assessment of the experience, the volunteers said creating was “relaxing, enjoyable, helpful for learning about new aspects of self, freeing from constraints, an evolving process of initial struggle to later resolution, and about flow/losing themselves in the work.”190 A fascinating result of the study was that there was no link between how much experience participants had in creating art in the past and lower levels of cortisol after their 45 minutes of creating. This suggests that we don’t have to be Gentileschi to experience the benefits of creating. Further, if we currently avoid creating out of embarrassment over the quality of anything we might make, then we might need to get over it and go back to the freedom and eagerness kids have in picking up a paintbrush, chalk, or mud. As Vonnegut suggests, we can create for ourselves without necessarily sharing our creations with others, though hopefully over time we might do both. Finally, having more individuals create on their own will not only enrich their lives but is arguably the only way to solve certain societal problems like our broken internet.191 When it first arrived on the scene, the internet was touted as a way to connect with others, to form a web of meaningful interactions. Now, much of what we do online is consume. When we do communicate on the internet, we too often gossip or heckle rather than converse. The most promising way to fix both overconsumption and division is through online creation and communication.

respecting indigenous peoples There are at least two concerns regarding intellectual property’s effects on indigenous peoples. First, indigenous cultures are being flooded with content from outside. In this sense, the concern is similar to the worry that individuals in developed countries are overconsuming entertainment. Dramatically reducing copyright would help everyone in this regard, both indigenous and nonindigenous peoples. Significantly weakening copyright in developed countries will help stem the flow of new nonindigenous entertainment, which will not only reduce the amount of entertainment indigenous peoples consume but protect indigenous cultures. In essence, since nonindigenous entertainment is designed to hook individuals, but indigenous art is not, removing extreme copyright will help level the playing field to some degree. Another concern is that indigenous cultures are being exploited. Danielle Conway argues, “Commercialization or commodification of culture is akin to collecting

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See generally Girija Kaimal, Kendra Ray & Juan Muniz, Reduction of Cortisol Levels and Participants’ Responses Following Art Making, 33 Art Therapy 74 (2016). Id. at 74. The same can be said of our off-line communities. See generally Tom Borrup, 5 Ways Arts Projects Can Improve Struggling Communities, Project for Public Spaces (Jan. 1, 2009), https://www.pps.org/article/artsprojects.

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culture for purposes of exploitation, observation, voyeurism, and objectification.”192 While such exploitation also occurs within other IP fields such as patent law, to the extent it occurs within the purview of copyright, substantially reducing copyright in developed countries will limit the incentive for nonindigenous peoples to commercially exploit indigenous culture, and will somewhat reduce the injustice of appropriation.193 Conway states, “Issues of domination, control, and marginalization plague any legal system.”194 For indigenous peoples in developed, middle-income, and developing countries, more autonomy “from those who would, without authority or justification, exploit [indigenous culture] and reduce it to a short-term and short-lived commodity” could be had through a pluralistic IP regime, as proposed by Conway.195 She states that this would entail “employment of a sui generis legal system to bring to the fore essential protections for Indigenous knowledge, tangible and intangible cultural materials and artifacts, secret and sacred information and know-how, cultural expressions, and the biogenetic resources justly owned and possessed by Indigenous Peoples.”196 Conway argues, “Absent access to the knowledge, or acquiescing in the misuse and misappropriation of that knowledge, Indigenous identities become hostage to external perceptions and influences that often relegate Indigenous Peoples to subordinate or nonexistent status at the fringes of the global community.”197 As with copyright’s arc, Conway’s work acknowledges that copyright should vary according to the people it interacts with.

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194 195 196

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Danielle M. Conway, Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights, Identity, and Resources, 15 Tex. Wesleyan L. Rev. 207, 208 (2009) (Law Review Symposium Issue) (referencing Michael A. Bengwayan, Minority Rights Group International, Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia 20 (2003)). See generally Adam Mossoff, Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent “Privilege” in Historical Context, 92 Cornell L. Rev. 953 (2007); Xuan-Thao Nguyen, Trademark Apologetic Justice: China’s Trademark Jurisprudence on Reputational Harm, 15 U. Penn. J. Bus. L. 131 (2012); and Lateef Mtima, What’s Mine Is Mine but What’s Yours Is Ours: IP Imperialism, the Right of Publicity, and Intellectual Property Social Justice in the Digital Information Age, 15 SMU Sci. & Tech. L. Rev. 323 (2012). Conway, supra note 192, at 253. Id. Id. at 209. See also Peter Jaszi, Legal Protection for Indonesian Traditional Arts in Transition, in Diversity in Intellectual Property: Identities, Interests, and Intersections 494, 522 (Irene Calboli & Srividhya Ragavan eds., 2015). Jaszi argues that in Indonesia we need to augment novel legal efforts through providing “enhanced funding for revitalization projects” along with “efforts to reconnect communities engaged in traditional arts practice with their historic audiences.” He believes this can, in part, be accomplished through arts education programs that emphasize “the value of traditional Indonesian forms along with their Western counterparts.” Id. Jaszi also states that “physical performance spaces for traditional stage arts must be created, and virtual spaces for all the old arts should be identified within the mass media.” Id. Conway, supra note 192, at 210.

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Conway believes that “indigenizing intellectual property law” through legal pluralism is required because the current and most widely used and recognized laws governing intellectual property are, in their current form, incapable and at times inconsistent with protecting the rights and interests of Indigenous Peoples in their resources and intangible assets that have, through time, putatively derived from their origins, their interactions with their environment, their adaptations to the surrounding world, and their cosmology and creation stories.198

While such a proposal is “only an interim measure to protect Indigenous resources up to and until Indigenous Peoples have fully realized self-determination,” in Conway’s vision, “[r]ecognizing that Indigenous law is equivalent to western intellectual property law would evince a serious attempt by the dominant settler societies to work in partnership with Indigenous Peoples to develop a meaningful sui generis system of protection for Indigenous resources and intangible assets.”199 While I have criticized the existing copyright regime for being too monolithic, it is also fair to suggest that the tripartite treatment of countries in this book may also be too monolithic. There is room moving forward to pay attention to the many suggestions of IP social justice theorists about techniques to vary and enrich intellectual property so as to better promote human flourishing. My call to reduce copyright is thus not a call to wipe out all IP remedies or potentialities in developed or developing countries.

198 199

Id. Id. at 207 & 209.

5 Interaction between Copyright Regimes

Cultures will certainly change over time, as invention, organizational innovation, political change such as democratization, and globalization on many dimensions occur. This process of decay of the old and evolution of the new always evokes nostalgia among more sensitive observers . . .. As cultures evolve and elements of them vanish, we must decide what we need to remember and retain in our midst. All of the past cannot be frozen endlessly in time. —Jagdish Bhagwati1

We do not owe copyright law any nostalgia. Extreme copyright laws are altering cultures across the globe. Given that we are already engineering culture through law, we need to seriously consider the unintended negative harms that result. Since cultures will and should change over time, so should the law that relates to culture – i.e., copyright law will and should change along with the culture it governs. Thus attempts to reform copyright should not be dismissed on the grounds that reform will alter our culture, given that copyright has already fundamentally done so and continues to do so. Having copyright vary between countries in order to maximize the good that artwork can do for different societies is critical, yet it would create numerous scenarios where different copyright regimes across the world would interact. All three different theoretical justifications for copyright’s arc can co-exist and either reinforce each other or at least not work against each other.2 Furthermore, the arc of copyright does not need to work seamlessly to improve the lives of individuals around the world in their own contexts. If the three theories 1 2

Jagdish Bhagwati, In Defense of Globalization 112, 113 (2004). Critically, even if you remain unconvinced that all three theories can peacefully co-exist, this would not invalidate the three individual theories of how much copyright is needed in different countries. Alternatively, you might disagree with one or more of the three distinct theories of copyright presented earlier, which would not invalidate the others.

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conflicted, which I do not believe is realistic, countries might decide to do what is best for their citizens while disregarding the international effects of their policy reform and/or attempting to limit any domestic harm due to international influences. Yet the domestic benefits of copyright reform would likely be significantly larger than any negative international spillover effects.3 Our current global predicament is that Hollywood has set international norms to benefit itself. We are in the worst situation already; countries and corporations cannot do much more harm. No research exists proving that art benefits individuals more because of international copyright agreements. Even if there are global economic gains to multinationals from trade in entertainment, if the regime that enables such added economic growth brings harm to other important aspects of our lives, the bargain might be terrible. For example, how we measure economic success – gross domestic product (GDP) – does not account for environmental destruction. If anything, harm to the planet often counts as an economic gain – for example, the more trees are cut down and sold and the more oil extracted and burned as gasoline, the higher our GDP.4 Previous chapters have demonstrated how our existing excessive copyright laws steal the lives of those in rich countries and hinder self-confidence in the oppressed in developing countries. Surely, even if the three stages of copyright’s arc worked against each other and hence led to countries becoming more insular from an economic trade perspective, the trade-off would be more than worth it.5

three general scenarios Besides the likelihood that no reform occurs across the globe, three general scenarios can materialize: (1) both developing and developed countries dramatically reduce copyright; (2) developed countries lower copyright protections but developing countries do not; and (3) the exact reverse, developed countries maintain the status quo while poor countries work to pare back copyright. Of course, most developed or developing countries will not necessarily do what their similarly situated economic peers will do, and laws on the books are not always precisely obeyed. Further, even middle-income countries need to lower copyright protection, yet the extent of such reduction is not as substantial as it should be for both poor and 3

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Alternatively, the country exporting the negative effects could attempt to take steps to mitigate the effects on others. Concerned about such non-monetary considerations of both how we measure growth and unacknowledged harms from trade, the former president of France Nicolas Sarkozy commissioned Nobel Prize laureates Joseph Stiglitz and Amartya Sen, and others, to investigate alternative forms of measuring well-being for a nation that included components such as individual flourishing and environmental considerations. See Joseph E. Stiglitz, Amartya Sen & Jean-Paul Fitoussi, Report by the Commission on the Measurement of Economic Performance and Social Progress (2008), https://ec.europa.eu/eurostat/documents/118025/ 118123/Fitoussi+Commission+report. Again, this is assuming that the three stages actually work against each other instead of reinforcing each other or at least not being in conflict with each other.

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rich countries. Going from extreme copyright to a moderate copyright regime in middle-income countries will not have significant effects on other nations, unlike dramatically reducing copyright in developing and developed countries.6 Some scenarios will at first appear to be problematic, yet by expounding upon them I hope to demonstrate that they are less threatening in reality. These scenarios will be followed by a discussion of potential criticisms of copyright’s arc in general – for example, why Hollywood should capitulate to help individuals. As we shall see, copyright’s arc would spread ideas to and from all countries instead of the relative one-way street of the existing system. The practical effect of copyright’s arc would be increased cultural diversity across the globe, not a new dominant cultural colonizer from a middle-income country.

interactions So far, we have examined the flow of art across borders but only discussed the effects of law domestically – i.e., what happens internally to a country that substantially reduces its copyright laws. Now we will look at the effects of domestic law across borders – for example, what would happen in Paraguay if France reforms its copyright system. Cross-Border Effects of Both Rich and Poor Countries Reducing Copyright To organize the numerous effects from dramatically lowering copyright protection in developed and developing countries, I will first look at the effects on developing countries, then on middle-income countries, and finally on developed countries. Will Enough Content Reach Poor Country Citizens? A potential complication for the narrative of copyright’s arc is that developing countries require work from abroad to bolster respect for human rights and equality at home. The oppressed and possibly even the oppressors may change their minds on issues such as women’s rights if they are introduced to alternative views. Such shifts in values may inspire the oppressed to demand better treatment in the form of access to education and civil rights. Yet some might argue that developed countries would need to maintain high levels of copyright protection in order to not disrupt the flow of foreign artwork into developing countries. If this were the case, it would conflict with the need of rich country citizens to have significantly lower copyright laws to get them to consume less and create more on their own. In essence, if developed countries dramatically reduce their copyright regimes in order to spur creation by more developed country citizens, then how 6

For this reason, I will not address the international effects of copyright reforms in middleincome countries.

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will these noncorporate artists export enough art to poor countries to help spread awareness of human rights? The most important answer is: this job will be fulfilled primarily by middle-income countries over time. Even if all developed countries simultaneously significantly cut back copyright protection, reducing Big Copyright’s clout in international markets, many middle-income countries could step in to help by exporting their creations. The amount of middle-income country material imported into poor countries will likely rise once copyright is reduced in developing countries. This might happen because middle-income countries will simply find it easier to export art once the export markets are not so dominated by developed country content. It might also occur through a longer-term increase in production in middle-income countries, due not to developing country demands but rather to internal consumer demand once middle-income country citizens are consuming less developed country entertainment. Middle-income countries are already experiencing a domestic cultural transformation with positive political implications not only at the hands of Bollywood and Nollywood, but other burgeoning entertainment scenes. For example, Brazil’s flourishing telenovelas are in great demand in Indonesia.7 Greater future exportation of artwork from middle-income countries, many of whom were once colonies, will not only have a positive effect on perceptions of human rights in developing countries but will also be less prone to concerns of cultural colonialism. This is because many of the middle-income countries today are former colonies, not former colonizers. Furthermore, yet less consequentially, not every developed country is going to substantially reduce copyright at the same time. The citizens in countries that do pare back copyright will benefit from more space to create, while the developed countries that keep their excessive copyright regimes will still be in a position to export their works to help citizens in developing countries. In addition to this is the fact that as long as copyright is substantially reduced in developing countries, older developed country content can be imported without concern. While many in France or the United States might not want to rewatch substantial amounts of most TV shows from the 1970s, 1980s, or 1990s, those in recently media-dark areas of the world might receive such aged content in a more positive light. Anecdotal evidence suggests that even in our globalized, interconnected world, fashions and entertainment trends often tend to run a few years or more behind depending on the country. A quick search for Vanilla Ice in Russia brings up a surprising amount of recent references. There is a 2018 YouTube video titled “Vladimir Putin Dancing – Vanilla Ice – Ice Ice Baby” that reached 5.99 million views in six months – to be clear, Putin does not actually dance in the video.8

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Ibsen Martínez, Romancing the Globe, Foreign Policy (Oct. 20, 2009, 9:46 PM), https:// foreignpolicy.com/2009/10/20/romancing-the-globe. Vladimir Putin Dancing – Vanilla Ice – Ice Ice Baby, YouTube (July 8, 2018), https://www .youtube.com/watch?v=CeabhLS2-rM.

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Then there is a 2016 video of Vanilla Ice actually performing his three-decade-old song “Ice Ice Baby” in Russia.9 I could provide plenty more Vanilla Ice examples, but I think the point is made. Finally, developed countries will still produce a decent amount of artwork, the extent of which will vary by the field of art – for example, the amount of contemporary classical music will likely not budge if copyright is significantly reduced because the field’s reliance on copyright is minimal. While we should anticipate substantially less corporate work being created, some will still be made. Further, if fewer Americans are overconsuming, more will hopefully be creating and have a slightly easier time getting their works noticed domestically and internationally with the retreat of Big Copyright. This is not to claim that all art that is produced, including amateur content from new artists, will be widely exported; my point is simply that content from developed countries will still flow to developing countries. Will Developing Country Artists Be Hurt? Reducing excessive copyright in poor countries will have little effect on most domestic artists who create art that is not heavily reliant on copyright.10 The same will be largely true for any reductions in copyright abroad. While the loss of foreign royalties will likely be more significant than the reduction in domestic royalties, only a few artists from developing countries will lose significant foreign revenue.11 Again, I sympathize with such artists. Yet their loss of future income pales in comparison to 9

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Vanilla Ice – Ice Ice Baby Live in MTV Russian Moscow, YouTube (Dec. 6, 2016), https://www .youtube.com/watch?v=j_1y_Ij-GoI. A potential variation of copyright’s arc would be to have different copyright regimes within developing countries for domestic as opposed to international artwork. The idea would be to have more robust copyright protection for domestic artists so as not to discourage the few elite within the country who might be motivated by the incentives of copyright. Simultaneously maintaining little protection for all international works within developing countries would enable imported art to help inspire individuals to commit to equality, freedom, and human rights. This would be contrary to national treatment provisions in international agreements that allow only the reverse – greater protection for international works relative to domestic works. Yet, again, international treaties are surmountable in the sense that a country can decide to no longer be a party to a treaty. The advantages of such an approach would have to be weighed against a few concerns. First, the power of copyright’s arc in respect to developing countries is that content not just from rich and middle-income countries but also from poor countries could encourage the oppressed and possibly even the oppressors to alter their beliefs. Reserving this role only for middle-income and rich countries would not necessarily raise concerns of neo-colonialism but would emphasize such works more than local work simply because it would be less expensive to distribute. Another concern would be that attempting to maintain two separate copyright regimes within a developing country would be practically unworkable since it would allow for corporate arbitrage. Entertainment corporations based in developed countries could possibly attempt to register as domestic entities in developing countries to avail themselves of the more robust copyright protections for local artwork. Such attempts might fail, but we should not underestimate the ability of Big Copyright to find loopholes around a dual copyright system. See, for example, Chapter 2’s discussion of Alaa Al Aswany’s modest royalties.

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the tremendous potential of spreading belief in equality and freedom to large swaths of their fellow citizens, especially the oppressed. Plus, they are generally much better off financially than the average individual in a developing country already. Hence a dramatic reduction in copyright in developed countries will not undo the logic of copyright’s arc. Sufficiently Encouraging Middle-Income Country Markets Another possible concern about the interaction of different legal regimes is that creative environments in middle-income countries cannot be sufficiently cultivated without access to paying customers across the planet. Put less strongly, if copyright is dramatically reduced in developed countries, the financial incentives of middleincome country artists will not be as strong because the base of consumers willing to purchase their art will be smaller.12 This concern ties into an additional consideration – that the population sizes of middle-income countries must be considered. There are three significant caveats to the proposition that larger markets help artists create. First, the type of work important to middle-income countries is art that takes a diverse country of many groups and builds an inclusive sense of national unity. The size of export markets matters less to spur country-specific artwork than the existence of a domestic market. Put differently, the equivalent of Disney, a large corporation with access to foreign markets, did not positively build a sense of national unity in France during the Renaissance and Enlightenment – individual domestic artists did. Second, large markets can help, but they can also be an impediment if they are captured by large actors – for example, while the United States has the third-largest population in the world and the largest (in GDP) or second-largest (in PPP terms) economy, just look at our telecom, health insurance, pharmaceutical, entertainment, and technology sectors, which are all dominated by huge actors distorting the functioning of the market for their own gain.13 Third, the economic concept “all other things being equal,” ceteris paribus, can have the effect of deemphasizing the more important exercise of weighing competing interests. Yes, all other things being equal, larger markets provide more opportunity to artists, yet this banality obscures the far more important point that such benefits must be compared to the harms of the entire copyright regime. Here, the modest positive benefits of a larger market for middle-income country artwork, because it is supplemented by an export market, is less significant than the massive benefits of other factors, such as helping people not consume on average 9 hours and 30 minutes of entertainment a day. With these three important considerations in mind, export markets and population size play a role in the arc of copyright. Currently, the largest countries in the 12 13

I would like to thank an anonymous reviewer for mentioning that I should address this. IMF DataMapper, World Economic Outlook, GDP, Current Prices and GDP Based on PPP, Share of World, International Monetary Fund (April 2019), https://www.imf.org/external/ datamapper/NGDPD@WEO/OEMDC/ADVEC/WEOWORLD and https://www.imf.org/ external/datamapper/PPPSH@WEO/OEMDC/ADVEC/WEOWORLD.

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world by population are middle-income countries – China, India, Nigeria, Indonesia, Mexico, and Brazil. Thus, to incentivize creation, they do not need a bigger market than their already vast domestic markets. As for the art scenes in smaller middle-income countries, the best financial motivation would be a sizable reduction in copyright in developed countries. This is because artists in middle-income countries are competing against large, established corporations from rich countries. Over time, the population balloon that exists in the middle of the development spectrum will hopefully shift – many of the large middle-income countries will become developed. This would give more breathing room to artists in smaller middle-income countries, not only because fewer imports would be crowding their internal markets but also because they might modestly expand the exportation of their work to both developing and developed countries. Just as with a substantial reduction in copyright protection in developed countries, curtailing copyright in developing countries will not deter the expansion of middleincome markets for artwork. Only the elite within poor countries, whose numbers are limited, can afford to buy entertainment. Further, only a portion of the limited money they currently spend on entertainment is spent on middle-income artwork. Thus weakening the demand of the elite within developing countries by shrinking copyright in their countries will go nearly unnoticed. Moving Hollywood If the United States significantly reduces its copyright protection, a weakened Hollywood could pick up and move to a middle-income country with an established commercial entertainment industry. But such a relocation would not be necessary because developed country artwork created in California but exported to middleincome countries would still receive greater copyright protection in the middleincome countries than in developed countries that significantly reduce copyright. This is because of the principle of territoriality – that is, the law of any one country applies only within that country’s borders.14 Regardless of where an author resides, the level of protection provided to her artwork is based on the domestic laws of the country where she seeks copyright protection, not where the work is first published. Would it matter if Hollywood picked up and moved to Brazil? Even though it would not be relevant to how much copyright protection Hollywood’s entertainment receives, the greatest value to Brazil, pushing aside the added economic benefits, would be whether Hollywood begins to create more content tailored to its new home market.15 If Hollywood-in-Rio hires locals who are free to express their 14 15

Jørgen Blomqvist, Primer on International Copyright and Related Rights 47 (2014). Examining data on operas in eight Italian states between 1770 and 1900, Michela Giorcelli and Petra Moser suggest that “much of the observed increase in creativity [during this period] was driven by immigrants, who were attracted to states with more favorable laws.” Michela Giorcelli & Petra Moser, Copyrights and Creativity: Evidence from Italian Operas 1, SSRN (May 16, 2019), https://ssrn.com/abstract=2505776. Attributing this migration to increases in

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own culture and to build narratives around collective sacrifice and acceptance of all individuals, then Brazil would benefit more than if Hollywood simply continued to do what it has done for years – feature foreign cities and film stars from a select group of countries, while moving away from romantic comedies to action films because comedy does not travel as well as car chases.16 This current strategy of Hollywood weakly tailoring its productions to an international crowd is not detrimental to middle-income or developing countries; in fact, it brings benefits such as inspiring the oppressed in developing countries and to some extent solidifying the respect for equality and freedom in middle-income countries. Plus, some might argue that it fosters inclusion on an international scale – it helps us see that everyone around the globe shares a common humanity and an interconnected fate. Where Hollywood currently fails middle-income countries, thanks to extreme copyright, is in crowding out some locally made art, which can also advocate for human rights but simultaneously address issues of national inclusivity. However, if copyright regimes are significantly reduced in developed countries, the amount of imported content that middle-income country individuals consume would decline because Hollywood would produce less content overall and less expensive content without the support of developed country markets. This would open up significant space for local artists in middle-income countries to reach their fellow citizens. Of course, such migration by Hollywood might never happen. Certain middleincome countries are already making high-production-value entertainment, though not necessarily hiring neuropsychologists and using fMRI machines. Others are making a lot of less polished content. Further, Bollywood and Nollywood both sprang up during the existing reign of Hollywood, in the current age of globally expansive copyright. Whether or not Hollywood relocates to Rio, the primary impact of copyright’s arc on exports to middle-income countries will be to roll back the flood from Big Copyright and to increase the flow between middle-income countries. A downsized Hollywood, whether or not it stays put, might still have an incentive to create with specific consumer markets in mind. Hollywood currently assumes that its business model rests on creating products that appeal to the greatest number of consumers, just as generalized treatments for diseases do. If pharmaceutical companies are thinking about the possibility of designer pills personalized for individuals (even if only a distant idea at this point), Hollywood might consider a similar

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copyright protection as opposed to the desirability of living at opera’s geographic center, like determining whether technology entrepreneurs are drawn to Silicon Valley for the business climate and cluster of venture capitalists versus the community of like-minded individuals, is a challenge. See generally How China Is Influencing Hollywood Movies (and Tom Cruise’s New Top Gun Jacket), Times (July 26, 2019, 12:01 AM), https://www.thetimes.co.uk/edition/times2/how-chinais-influencing-hollywood-movies-and-tom-cruises-new-top-gun-jacket-2rcwq773v.

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development either on a societal or granular level. It has been making baby steps in this direction, and its marketing campaigns are already tailored and personalized. Further, maybe technology will logically “progress” in a manner that would allow for personalized entertainment content. For example, it is possible that virtual reality content never takes off, that it becomes a global sensation and is generic, or that it evolves through future AI developments that make it highly personalized. Effects of Copyright’s Arc on Middle-Income Citizens If striking reductions in copyright in both developed and developing countries will not noticeably hurt the advancement of artistic infrastructure within middle-income countries, would such international copyright reforms hurt consumers in middleincome countries? The most conspicuous effect will be that middle-income country consumers will be deprived of future Transformers and Avengers. Yet radically lower copyright in developed countries does not mean that no art will flow from developed to middleincome countries. While exports from developed countries are expected to decrease, an additional consideration is that fewer works will be from entertainment corporations and more will be from individual artists. To assume that this would be a harm would require one to believe either that Hollywood creations are superior to all other works or that more options to choose from is always better than fewer. I am unwilling to make either pronouncement. Yes, Hollywood productions are incredibly polished and millions are spent advertising them, which leads to hundreds of millions of individuals watching them. This does not mean that they are better or worse, from an aesthetic, philosophical, or sociological perspective. For example, I do not think that American entertainment corporations are creating content with more meaningful or profound messages than creations by noncorporate artists or corporations from other countries. As for more options always being better, many of us know this not to be true in our own experience, and research backs up our intuition. Sheena Iyengar and Mark Lepper offered shoppers 6 varieties of jam to sample on one day, but 24 options on another day. Shoppers who saw the larger spread were “one-tenth as likely to buy as people who saw the small display.”17 Plus, presented with more options, individuals became less satisfied. This result has been replicated “with matters as trivial as ice cream flavors and as significant as jobs.”18 While choice is a good thing, “more of it requires increased time and effort and can lead to anxiety, regret, excessively high expectations, and self-blame if the choices don’t work out.”19 While a diversity of messages within art is a good that is advanced with the importation of works from 17

18 19

Barry Schwartz, More Isn’t Always Better, Harv. Bus. Rev. (June 2006), https://hbr.org/2006/ 06/more-isnt-always-better. Id. Id.

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poor and rich countries, there is a limit to the number of options before it is no longer enabling. Just as middle-income and developed country works imported into developing countries will vary tremendously in aesthetic quality and content, yet overall will be helpful, so will developed country works imported into middle-income countries vary yet bring benefits. But one benefit that importation does not bring is country-specific unity building – for example, French cinema is not crafted to help Brazilians feel a positive sense of national identity, even if it conveys a general message about the value of inclusion. This is a limitation, but not a criticism, of imported content.20 The same can be said of the benefits of diversity. While too many options may be overwhelming, added diversity within a reasonable selection of entertainment options can be a positive development.21 Benefits from diversity can come from leveling the playing field between corporate and individual artists but also from giving different countries a greater chance to export their works across the globe. My argument for developing countries is based on increasing the volume and diversity of art available to citizens, while my point for middle-income countries is that copyright can be at its best if it inspires a specific form of diversity in messages – messages of diverse local groups united as one nation.22 Effects of Copyright’s Arc on Developed Country Artists Since the point of dramatically reducing copyright in developed countries is to impede the domestic entertainment industrial complex, worrying about the international effects of reduced copyright in poor countries on rich country entertainment companies is irrelevant. Put differently, it does not matter if Hollywood loses a minuscule amount of revenue from forgone sales to the elite in poor countries because the harm it does to developed country citizens arises from the extensive financial incentives it is afforded within developed countries. For the health of societies in developed countries, we need to make Big Copyright less profitable and encourage more individuals to create, even if most of their works are less polished. How would copyright reform in developing countries affect independent artists in developed countries? Very little. First, many noncorporate artists are not motivated by money, or are at least less profit-driven than corporations, so any reduction in copyright protections abroad will likely go unnoticed. Second, a good deal of 20 21

22

I thank an anonymous reviewer for making this point clearer. Hence advocacy for increased exportation of middle-income and developed country artists’ works to poor countries leads to a greater diversity in ideas and values. More diversity is likely to be exported to developing countries if the works are predominantly noncorporate creations by individual artists. Still, even if most of the exported works are corporate, great benefits can accrue. My argument for developed countries is that individuals need to consume less. If what they consume after copyright reform is more diverse in the sense of including more noncorporate art and more works from abroad, wonderful.

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noncorporate artists create in art forms that do not practically rely on copyright. Third, global fine art collectors are concentrated in developed countries. In 2014, 25 percent worldwide were in the United States alone; 16 percent were in Germany and the United Kingdom, combined; and 15 percent were in China, India, and Brazil, combined.23 Few collectors reside in developing countries, and, regardless, none would be motivated to collect because of copyright. Finally, copyright reform would open up new art audiences in developing countries. As previously discussed, nonprofits in developing countries would be able to freely distribute more artwork without risk of liability. While it might be assumed that these nonprofits will prefer to distribute corporate movies and shows, it is possible that they will choose creations by independent filmmakers instead. Effects of Copyright’s Arc on Developed Country Consumers The other main group within developed countries that would potentially be affected by changes in copyright law abroad is consumers. Yet developed country citizens are not consuming works from developing countries in any meaningful quantities, so a significant reduction in copyright in poor countries will not impact them. At the same time, it would not be surprising if the amount of content that developed country citizens consume from middle-income country artists would increase, yet nothing close to enough to offset the reduction in their consumption of developed country entertainment because changes in aesthetic tastes would likely take time to occur and the quality of works is not necessarily always comparable.

Cross-Border Effects of Developed Countries Reducing Copyright Combined with No Reform in Developing Countries Having reviewed the scenario of poor and rich countries simultaneously dramatically reducing copyright, we can now turn to what would happen if only rich countries significantly reduced copyright. Influence on Developing Country Citizens If developing countries retain their extreme copyright regimes, international artwork would still receive excessive copyright protection there. Hence the positive benefits of dramatically expanding access to international entertainment in developing countries would not materialize. Again, piracy of international entertainment is widespread in parts of some developing countries in the face of extreme domestic copyright laws. Excessive copyright would continue to prevent domestic and international institutions from distributing international content in both media-dark and media-light areas. This is no different from the analysis in Chapter 2. What is 23

Larry’s List, Art Collector Report 2014 (Jan. 2015), https://www.larryslist.com/images/files/Press %20release%20Larrys%20List%20Art%20Collector%20Report%202014.pdf.

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different: the fact that developed countries are reforming copyright, without developing countries following suit, would cause the amount of developed country commercial art available to developing countries to decrease. This would occur because the production of new corporate entertainment would decrease substantially within developed countries. As a result, entertainment from middle-income countries could begin to circulate in developing countries more vigorously. If Big Copyright is defeated in developed countries, its fall could rapidly create ripple effects throughout the globe. If Hollywood fails to successfully lobby the US Congress to maintain extreme copyright protection, in theory, Hollywood will be less effective in lobbying US trade negotiators to maintain pressure on developing countries to soldier on with excessive copyright laws. Thus if Hollywood can no longer lobby effectively, rich country governments would probably stop strongarming poor countries to maintain high levels of copyright protection, and developing countries might lower their copyright protections over time. This could increase access to international artwork in poor countries.24 Influence on Developing Country Artists Theoretically, developing countries could begin to export more artwork, yet practically this is unlikely or would occur only on a small scale. First, the internet makes distribution of art forms that can be digitized essentially costless for international consumers, assuming connection rates are a sunk cost because most rich country citizens will be on the web regardless of whether they can view and download developing country art. Yet the same is not the case currently for developing country artists attempting to upload their material to the web. The cost of an internet connection in many poor countries is prohibitively expensive.25 Second, most developing countries produce marginal amounts of polished commercial art, making it improbable that international markets would experience much more than a trickle of imports. In certain art forms, such as music, the gap has been largely 24

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As mentioned in Chapter 2, copyright is not a critical component of the average citizen’s life in poor countries. Many individuals live in media-dark areas, others are too busy scraping by to consume entertainment, and knowledge of laws is less prevalent. This does not repudiate the necessity to abandon extreme copyright, yet it does suggest that a combination of policies would maximize the flow of international artwork into poor countries. Particularly, the poor need increased access to technology in order to watch a film or TV show, browse a book online, or listen to a song on the radio. If the technology becomes more widespread while copyright stays on the books in poor countries, the flow of international artwork into developing countries would likely increase substantially if copyright enforcement continues to be lax. To be clear, such a potential increase could be wonderful if it inspires the oppressed to embrace human rights. The “average monthly income spent to purchase 1GB of mobile data” in Africa is 8.76 percent, while “the UN Broadband Commission’s target of affordable cost of a gigabyte of data” is that it not cost “more than 2 percent.” Yomi Kazeem, Having More Rival Mobile Networks in a Country Often Means Cheaper Internet for Africans, Quartz Africa (Sep. 14, 2018), https://qz .com/africa/1390318/africa-has-the-most-expensive-internet-in-the-world/.

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bridged, though this is not the case for all art mediums. Third, developing countries’ differing cultural norms and values – from preferring cricket to widespread homophobic and sexist views in some countries – would drum up little demand for developing country commercial artwork to be exported. This is not to claim that all individuals in developing countries are homophobic or sexist or that everyone abroad is not. Yet the degree to which certain liberal values have been widely adopted does vary, as do cultural norms that do not touch on important values – for example, the artistic equivalent of preferring coffee over tea.26 Hence it is unlikely that poor countries would turn into commercial art powerhouses even if copyright is dramatically scaled back in developed countries. Influence on Middle-Income Country Consumers With only developed countries significantly reducing copyright, middle-income consumers would over time see a shift in what is available to them. While the mix of content might include slightly more developing country content, most of the realignment would come from more domestic options, more international options from middle-income country artists, and less entertainment from rich country corporations. While middle-income country consumers might continue to enjoy existing content from Hollywood, over time their interest in such content would likely fade, further opening up new possibilities to increase diversity in what they consume. Influence on Middle-Income Country Artists The dramatic reduction in copyright in developed countries would reduce the amount of hyped corporate content produced. This decrease in new corporate content would lead to fewer cultural exports from developed countries to the rest of the world. Less Tom Cruise, Jay-Z, and Taylor Swift spread around the globe would open a partial void to fill among consumers in developed, middle-income, and developing countries. While the decrease in exported developed country content would likely not be fully met in any country, artists in some middleincome countries would be well positioned to expand their audience both domestically and abroad. The expectation is that even if middle-income country artists export more to developed countries, the influx would not compensate for the significant decrease in developed country content; it would not stop rich country consumers from using their new free time to live more.27 26

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Nor am I claiming that developing country artists are less, or that middle-income and developed country artists are more, open to the equality of humans. This is not a slight against middle-income country artists; rather, my concern is that all developed country citizens create on their own. Also, as mentioned previously, there are good reasons to believe a partial, not full substitution of middle-income country for developed country content would occur.

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Opening the Door to Totalitarianism? In theory, a totalitarian country could attempt to nefariously exploit this opening created by the loss of much of the content exported by developed countries around the world. The historical response to such a concern is that entertainment from artists under the thumb of despots has rarely had any mass market appeal. I do not mean to disrespect the likes of Dmitri Shostakovich and many other brave dissident artists trapped, like their fellow countrymen, in nightmares; I mean to suggest that the most profound art did not aim to do what dictators wanted it to do.28 The masterpieces such dissident artists created demonstrate the dangers of a lack of free speech and the harm from politics of terror. Plus, totalitarian regimes can censor – that is, they can prevent the release of works of genius if they are afraid of them. Furthermore, developed countries, which have strongly leaned democratic, have been on the cutting edge of creating cinematographically beautiful, polished mass entertainment. Chinese mass entertainment is rapidly catching up to the production quality of Western action adventure films and video games. This could become concerning if the political elite of China attempt to export content for political purposes. The Chinese state is already encouraging other nondemocracies from Venezuela to Egypt to adopt their internet censorship technology, facial recognition software, and biometric sensors.29 Plus, the Chinese hierarchy is engaged in spinning the news and implementing a public relations campaign both domestically and internationally. President Xi has ordered his “propaganda chiefs to put in serious efforts to ‘develop websites, Weibo, WeChat, electronic newspaper bulletins, mobile newspapers, IPTV and other forms of new media’” in order to build “positive energy” among citizens in the one area the government does not already dominate – soft content “‘such as relationship [advice], the zodiac etc.’”30 One conceivably might look at these trends and not be alarmed. The spread of the technology might be a business decision, while many competent bureaucracies manage public perception. While I remain more skeptical, it might turn out that the only glossy content a totalitarian country can effectively export are films that stress the collective over the individual. The sacrifice of an individual to help others can be beautiful. Yet there are limits to this theme. It does not extend to hailing dictatorship or abusing individuals’ human rights.

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Of course, some aesthetically “interesting” art has been produced in genuine support of authoritarian regimes, such as the propaganda films of Leni Riefenstahl. Justin Sherman & Robert Morgus, Authoritarians Are Exporting Surveillance Tech, and with It Their Vision for the Internet, Council on Foreign Relations (Dec. 5, 2018), https://www.cfr .org/blog/authoritarians-are-exporting-surveillance-tech-and-it-their-vision-internet. William Zheng, How Official Chinese Propaganda Is Adapting to the Social Media Age as Disaffection Spreads among Millennials, S. China Morning Post (Feb. 10, 2019, 2:04 PM), https://www.scmp.com/news/china/politics/article/2185300/how-official-chinese-propagandaadapting-social-media-age.

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Plus, the truth still has ways to find some light. Badiucao, a Chinese-born political cartoonist, recalls that in 2007 “he and his law school roommates had been watching a pirated movie when suddenly it cut to a documentary that was apparently spliced in. The three-hour film first showed crowds of young Chinese holding prodemocracy banners in Beijing’s Tiananmen Square.”31 Then the tanks and troops came. As reported by Amy Qin: The four roommates, all in their early 20s, sat in the dark, speechless. Until that moment, Badiucao recalled, he had been just another good, apolitical kid from a working-class Shanghai family. He was only 3 years old during the crackdown, but seeing the soldiers turn their guns on the students and civilians, he said, felt personal, like “dropping from heaven to hell.” The student protesters had been so young and carefree, he thought, he could easily have imagined himself there. Questions began racing through his mind: Why had he not learned about this before? What were the names of the victims? Was it even real?32

This is not to ignore the power of Nazi propaganda in the 1930s. It is to hope that many citizens are more sophisticated and that existing totalitarian regimes are not bent on armed conflict and hence desire to control their own citizens but not extend their domination across borders. Further, the number of middle-income countries that might consider such a policy are few, since many large middleincome countries are democracies. Yet, given that mass entertainment is much more widely consumed than traditional forms of artistic expression, combined with the possibility that middle-income states might be able to pressure artists with cutting-edge skills to create propaganda, such concerns should not be wholly dismissed. Influence on Developed Country Artists With a significant reduction in copyright in rich countries and no copyright reform in poor countries, developed country entertainment corporations could in theory switch to producing for consumers in developing countries. Yet this would be unlikely. Further, as we have already seen, individual artists in developed countries do not create with developing country markets in mind. Thus while a dramatic decrease in copyright in their own markets would affect them, retaining excessive copyright in poor countries would not. Influence on Developed Country Consumers Would individuals in developed countries be affected by developing countries’ decision to retain excessive copyright regimes? Probably not much. Since copyright 31

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Amy Qin, Mysterious Chinese Political Cartoonist Badiucao Unmasked at Last, N.Y. Times (June 4, 2019), https://www.nytimes.com/2019/06/04/world/asia/china-tiananmen-cartoonistbadiucao.html. Id.

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does little for most artists in developing countries, only an exceedingly few would increase their exports to developed countries. However, these exports would find a more welcoming audience as copyright reform in developed countries begins to stem the inundation of Hollywood content. In the medium to long term, developed country citizens would likely begin to expand their entertainment choices to include more international content, yet not to the point of overconsumption.

Cross-Border Effects of Developing Countries Reducing Copyright Combined with No Reform in Developed Countries Influence on Developed Country Artists Assuming rich countries retain extreme copyright, the effect of poor countries dramatically reducing copyright will be, at least initially, a slightly smaller paying market for rich country copyrighted exports. This will vary largely by the size of the elite within any particular developing country because they are the only citizens who have or can even contemplate the luxury of disposable income. As already discussed, the size of this group will be minuscule. Significant amounts of unauthorized copying of works from developing, middleincome, and developed countries exist within parts of some poor countries, yet such piracy is largely irrelevant to the cross-border effects of reducing copyright in poor countries. Unauthorized access is currently outside the formal market and will continue to be so even after copyright reform, unless all of copyright is eliminated. The biggest reason that any decreases in demand from paying customers in developing countries will be so low is because developed countries make almost all of their export earnings on copyrighted works in other rich and middle-income countries. To put this into perspective, the size of the US economy is 18 to 33 times larger than the economies of all developing countries combined.33 These numbers are even starker in regard to entertainment sales because the wealthier a country, the more disposable income its citizens have to purchase anything beyond the absolute necessities of survival. Also, the financial hit that artists and entertainment conglomerates take in developed countries will vary from essentially nonexistent to inconsiderable, depending on the different types of artwork they create. For example, ukulele musicians do not have sales to be lost in The Gambia, a poor country with only 2.1 million people.34 Even though Hollywood blockbusters likely sell the best of any 33

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GDP (current US$), The World Bank Group (variation depends on whether UN figures or World Bank figures are used; both are available), https://data.worldbank.org/indicator/ny.gdp .mktp.cd?most_recent_value_desc=true&view=map (last visited May 29, 2019). The World Factbook. Africa: The Gambia, US Central Intelligence Agency, https://www .cia.gov/library/publications/the-world-factbook/geos/ga.html (last visited May 29, 2019).

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rich country artwork, they currently do not generate enough income in Yemen to pay for the coffee budget of a film crew over a few months of shooting.35 Gray Market Goods Concerns about the implications of reimported entertainment are largely unfounded, especially for entertainment. Gray markets exist when, for example, an individual in Zimbabwe buys a legitimate copy of a UK computer science textbook for a fraction of its UK selling price and then resells it back in the United Kingdom.36 Since it is easier for a German consumer to illicitly download a movie online than to buy a copy from someone in Nepal, worries of developed country works being free of copyright in developing countries and hence destroying developed country markets through such gray market imports are unrealistic. Thus the economics do not make sense for gray market entertainment goods.37 Influence on Developed Country Consumers One could argue that developed country consumers would be deprived of new works that could have been created by developing country artists but for the reductions in copyright law, yet, as we have seen, rich country consumers generally do not consume such artwork already.38 The exceptions to this are diaspora communities within rich countries or one-off hits. Developed country consumers can learn a good deal from and be touched by the aesthetic experience of interacting with entertainment from developing countries; unfortunately, one would be hard pressed to find French citizens who know many artists residing in the Central African Republic or US consumers who are familiar with the works of artists from Afghanistan. As long as developed countries continue to have extreme copyright, this reality is unlikely to change. 35

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For example, Charlie Scott was in charge of feeding not just the 250-person movie crew for The Longest Yard, but 5,000 extras for 30 days. Scott needed an additional “crew” just to provide enough water to everyone. Susan Stamberg, How Hollywood Gets Fed: A Lesson in Craft Service, NPR (Mar. 4, 2010, 12:00 AM), https://www.npr.org/templates/story/story.php?storyId= 124245252. See generally Shubha Ghosh, Turning Gray into Green: Some Comments on Napster, 23 Hastings Comm. & Ent. L.J. 563, 567 (2001) and Shubha Ghosh, Pills, Patents, and Power: State Creation of Gray Markets as a Limit on Patent Rights, 53 Fla. L. Rev. 789, 790 (2001). The case is different for educational textbooks, which are more often sold in print than digitally in developed countries. This continued preference for printed textbooks, combined with their high cost, has spawned a market for gray imports of educational materials. This is an existing issue, not a new issue that would result from the implementation of copyright’s arc through the lowering of copyright in developing countries. Further, whether you think this is a problem depends on whether you care more about nudging up the profits of private companies that sell $200 textbooks than about helping reduce educational costs for students in developed countries. Of course, this discussion ignores the fact that what would be best for rich country citizens is to radically lessen copyright protections in their own markets.

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Influence on Middle-Income Country Artists The effects of reducing copyright in developing countries on middle-income country artists would be essentially the same as for developed country artists. The amount of middle-income country content imported into developing countries in many instances will be even less than the amount of developed country works imported into poor countries, though the numbers may vary by art form. For example, in certain regions, local music more fluidly crosses borders than video games from afar do. Even if more middle-income country art starts traveling into developing countries, the amounts would not substantially harm middle-income country artists’ bottom lines. Also, the artists might appreciate the wider audience, especially if they understand the economic reality of the average poor person in a developing country.39 Influence on Middle-Income Country Consumers Would middle-income country consumers notice if a developing country dramatically lowers copyright protections? Probably not much, if at all, since little artwork from developing countries is currently consumed by residents of middle-income countries. Plus, a reduction in copyright in developing countries would not demotivate the few noncorporate local artists who are currently exporting their works. It is likely that such artists will continue trying to reach audiences abroad. Influence on Developing Country Artists Putting aside the effects of reduced copyright protection domestically for artists in developing countries, would they be harmed by developed countries maintaining their extreme copyright laws? Again, many artists in developing countries create in artistic mediums that are practically unaffected by copyright. Plus, piracy in certain parts of some developing countries is significant. The combination of these two realities means that few artists in developing countries are making substantial money from existing, excessive copyright laws. So, if copyright is reduced in their country, many artists would continue to create for the many other reasons artists decide to do so. Thus the decision of developed countries to keep their extreme copyright regimes would not change the existing status quo for developing country artists.

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One might assume that gray market goods would be a greater problem for middle-income country artists versus developed country artists given, for example, a good deal of transactions involving Nigerian films still occur through the physical transfer of DVDs. Yet many of these deals are often unauthorized at the outset, unlike gray market deals, which start with authorized transactions. Piracy in Nigeria is so rampant that Nigerian filmmakers assume they will make most of their money in the first two weeks after release – the time they have before pirates make unauthorized copies and begin to sell them. Thus it is likely that middle-income country artists would experience little financial loss from gray market imports.

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Influence on Developing Country Consumers Having developed countries keep their excessive copyright regimes in the face of dramatic reductions of copyright in developing countries would not change how consumers in poor countries are affected versus the scenario of full implementation of copyright’s arc. In both situations, consumers would benefit from the ability of developing countries to more freely import international content.

Only Some Poor or Rich Countries Eliminating Copyright It is better for all developed countries, instead of only a portion, to encourage the dramatic reduction of copyright protection domestically. The same can be said of developing countries – all should significantly lower copyright protections. Yet, if only a fraction do so, a few are better than none. No one believes a sea change in copyright regimes is imminent; in the foreseeable future, we must face instead the challenge of lowering sea levels. This is due to Big Copyright’s grip on Congress, which enables entertainment CEOs to encourage politicians to maintain excessive copyright across the globe. Yet one of the consistent lessons of history is that radical change happens. It occurs quickly and often unexpectedly. It manifests often. In our lifetimes, many of us have witnessed the weakening of domestic political cooperation, the striking reduction in childhood cancer death rates, and hundreds of millions of individuals lifted out of poverty in China. We have seen the rise of the internet and the mobile phone, the Fukushima disaster, new forms of terrorism, increased income inequality, and total surveillance. Not only are cassette tapes and CDs foreign to my little kids, but so are TVs and connecting to the internet through cables. When I told them what a mouse was, they not only thought it was a wonderfully cute name for a computer accessory, but they credited me for making it up. I do not aim to predict changes to copyright, yet a gradual, sporadic transition to copyright’s arc is within the realm of the possible, at least more so than all rich and poor countries working in absolute concert. Do these potential narratives of the effects of the wholesale transition of entire categories of countries change? Put differently, what happens when only a few rich or poor countries eliminate copyright? The short, tentative answer is: some effects of copyright’s arc will be blunted, while others will be magnified, yet the calculus would not radically change. For example, if only a couple of developing countries significantly reduce copyright, would the effects on entertainment multinationals, foreign consumers, local artists, and local consumers differ from the effects if all poor countries cut copyright? Not much. One group to consider would be the developing countries that do not reform copyright. Would they be affected significantly by the decision of a half dozen developing countries to dramatically reduce copyright? Artists in the unreformed poor countries would likely not notice a drop in income, even if they are neighbors of a large poor country that slashes copyright. This would be for all the reasons

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previously mentioned – the utmost consideration being that poor countries, sadly, predominantly comprise people who struggle to make a living. Would consumers in unreformed poor countries be harmed by such international decisions (putting aside their own countries’ refusal to reform)? It is difficult to see how given everything we know about the reality of artists in developing countries and the existing global copyright paradigm.

How to Handle Collapse Countries do not always advance. Too often they collapse. Societies can completely disappear, as did the former inhabitants of Easter Island.40 Countries can directly or indirectly have their independence taken from them by larger powers, as in the case of the former Czechoslovakia when under the thumb of the former USSR. Others might bend to corruption to tragic effect, as in Argentina. These setbacks can be temporary – for example, Slovakia, an outgrowth of the former Czechoslovakia, has seen sustained economic progress since independence and the fall of communism. Yet a return to growth is not ensured. Further, while crises can bring hardship to millions, not all setbacks result in a country reverting from developed to middleincome status or from middle-income to developing status. For example, the Great Recession of the 2000s in the United States caused suffering throughout the country, yet did not change the country’s status as developed. What should happen to the copyright regime when a country experiences such a crisis that it moves backward economically? The answer depends on the extent of destruction, especially how well the society remains intact. We use economic categories as a rough approximation of other developments within societies, in part because there are limited options when it comes to classifications and because the economic status of a country is often correlated to other aspects of its society – for example, public health, education levels, and the diffusion of values of equality and freedom. Thus if a country erupts into a civil war that rips apart the society’s sense of inclusiveness, destroys the cultural norms that sustain good governance, causes tragic loss of life and health, and leads to entire generations without an education, it might be appropriate to reverse the country’s position on copyright’s arc. To be clear, if such a civil war occurs, copyright policies might appear superfluous. While these should not be the first policy changes given that copyright reform does not bring immediate results, they should not be completely discarded. For other countries that experience a sharp economic decline but not a disintegration of their societies, altering copyright might not be required because what copyright aims to do may not have changed. For example, the society of a developed 40

See generally Jared Diamond, Collapse: How Societies Choose to Fail or Succeed (2005).

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country that has slipped to middle-income status might not have lost its sense of national inclusiveness or stopped consuming significant amounts of entertainment.

potential objections Even if diverse copyright regimes in different countries interact well under copyright’s arc, there is still the possibility that problems might complicate the fluidity of the arc. Such potential concerns do not strictly relate to the objections we have already discussed but are more general in nature and touch on copyright’s arc itself. I might talk about the considerations as if they were concerns, but I do not want to overestimate their likelihood or gravity. I mention them to be as thorough and upfront as practicable. Fairness to Artists Some might claim that it is unfair that certain artists receive significantly more copyright protection based solely on where they live under copyright’s arc. Their argument is an ethical claim at the global level, which has domestic and global retorts. Domestically, the purpose of a society is to look out for everyone, not just cater to a subgroup to the detriment of everyone else. To claim that the financial interests of a handful of individuals trump improving the lives of the rest not only is unfair to members of the society but could lead to disaster if subgroups compete for unjustified benefits. It is a challenge to argue that much of life is not luck – being born in a prosperous country, enjoying good health, not getting killed in a car accident or hurricane, having caring parents who provided a safe environment, having access to high-quality educational opportunities. Even if someone thinks that as an infant they were responsible for their own good fortune, this does not negate the need to protect every individual’s human rights within each society. Doing so requires more than simply redistributing the proceeds of one’s luck or misfortune to pay for defense and infrastructure. It entails providing a floor of education and social assistance to all in need so that we can all meaningfully participate in political discourse as equals. For example, being a self-made individual does not absolve anyone of the moral and democratic requirement to help an orphaned child become an adult who will in the future vote on important policies that will affect the entire nation. Refusing to do so negates not only an ethical bond but the political bond among us all, because this obligation is a prerequisite for real democracy and the effective protection of human rights. If individual freedoms were implicated – for example, if the argument was the need to legally prohibit expression – the situation would be different. But the goal here is to optimize the law that supports artistic expression in order to achieve the

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best possible effects on societies at different stages of development. Copyright’s arc is liberty enhancing, not liberty restricting. In poor countries, it aims to help the oppressed understand that they should have the same human rights as their oppressors. In rich countries, it aims to restore the lives of those who are trapped in overconsumption. The same domestic response holds on the global plain. We redistribute wealth – foreign aid – from economically successful countries to unsuccessful ones. We do not judge foreign aid to be wrong because developing countries do not reciprocate with aid flows to the West.41 If we accept the legitimacy of wealth transfers for foreign aid, then how could we argue differently for copyright? This is even more the case because copyright aims to protect nonrivalrous, nonexcludable expression – that is, works that can be enjoyed for free and by everyone without reducing the availability and enjoyment of the work to others.42 Again, we need to ask what is in the best interests of all societies. In this case, the answer is varying copyright protection depending on each society’s needs. A related concern might be that it is impossible to know where a work of art comes from anymore given that artists collaborate with peers from across the world. Such collaboration is welcome, yet it is limited. Many forms of art are solitary endeavors, from painting to writing novels. As for art forms that rely on collaboration, more diversity exists, yet artists working on large Hollywood films, for example, tend to come from developed countries. This is not to say that artists from a developing country will not be involved when their local expertise is required, such as for the movie Black Panther, or when a film shoots on location in a foreign country, such as with The Man Who Knew Too Much, The Tragedy of Othello, and Gladiator, which were all shot in Morocco.43 Furthermore, global acting stars often come from middle-income countries, such as Jackie Chan and Zhang Jingchu from China. Some works are created by a positively diverse set of artists from across the globe, yet this is not the norm. Plus, just as artists who work in films do not own the copyright on their artistic contributions, given their part is considered a work for hire, the largest-grossing films tend to be led by the director and film studio from a small set of countries. Further, while corporate entertainment is deliberately trying 41

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This is putting aside criticisms of foreign aid that suggest it does no good, or even does harm, given the way it is currently structured. Such arguments are not questioning the ethical precepts underlying a claim of redistribution but the unintended consequences of the redistribution. See generally Dambisa Moyo, Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa (2010). James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law & Contemp. Probs. 33, 41–42 (2003) and Mark A. Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 143 (2004). Sandy Schaefer, Black Panther Writer on the Film’s Importance & Researching African History, Screen Rant (Feb. 16, 2016), https://screenrant.com/black-panther-movie-writer-script-africanhistory/ and Black Panther Soundtrack Features South African Artists, channel24 (Jan. 31, 2018, 11:21 PM), https://www.channel24.co.za/Music/News/black-panther-soundtrack-features-fivesouth-african-artists-20180131.

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to reach audiences from large middle-income countries through incorporating their actresses and city skylines, the heart and style of a Hollywood film is palpably distinct from a film from Brazil or Indonesia.

Distinguishing between Countries Economically How do we classify countries writ large given that every nation has a mix of economically advantaged and disadvantaged individuals? A few may argue that principled divisions between rich, middle-income, and poor countries cannot be drawn, hence dooming the usefulness of copyright’s arc. First, on some level, most or all classifications are inevitably going to be somewhat fluid. Within the law, a large component of an entire movement of legal thought – critical legal studies – emphasizes the relative arbitrariness of all legal distinctions and legal terms.44 This does not necessarily negate the value of such partitions. For example, without them the enterprise of law would be impossible. There is a world of difference between poor and rich countries just like there is more than a little difference between summer and winter if you live in France. The fact that Paris might have a few warm days in winter does not negate the usefulness of the seasons for Parisians. Nor does having less distinct seasons in Marseille make us want to erase the terms from languages across the world. The transitions between stages of economic development, like the transitions between seasons, are gradual; nonetheless, making these distinctions serves a purpose. To put it differently, it is an axiom of humanity that each human will be unique. Any collection of individuals or nations, no matter how seemingly uniform at first glance, can easily be shown to have meaningful differences within the group, yet this cannot prevent scientists, philosophers, or bureaucrats from relying on any classifications. Just as economists must create assumptions in order to be able to build economic models, when we make generalities about the world – distinguishing what is similar and what is different – we do so with the understanding that perfect uniformity within a category is impossible. In other words, the universe is so complex that without positing foundational assumptions, we cannot build understanding of that complexity. A model without assumptions would simply be a perfect encapsulation of all of humanity in its “infinite variety.” No theory, no copyright law, can escape assumptions such as the classification of countries into different groups. Otherwise, a perfectly comprehensive theory of copyright would have to consider copyright’s differing effects on each individual on the globe. Thus, we can debate whether a particular assumption or classification is the best we can hope for or wholly inappropriate; we can reevaluate and adjust our assumptions as empirical data presents and our understanding improves; yet arguing 44

Duncan Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75 (1991) and J.M. Balkin, The Promise of Legal Semiotics, 69 Tex. L. Rev. 1831 (1991).

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for no classification is nearly equivalent to arguing for no law. Further, to critique a particular classification or assumption simply because we see exceptions serves no purpose, since there are exceptions to every classification or model ever proposed. Every country in the world has a mix of rich, middle-income, and poor individuals within its boundaries. Scholars of dependency theory, mentioned in Chapter 2, believed that developing countries were the periphery being exploited by the center occupied by developed countries; analogously, they argued that within each poor country the same relationship of center and periphery, and its exploitative dynamic, existed between the poor and the elite. My argument is making a related claim – the elite are benefiting from copyright in its present form to the detriment of the less well-off. These categories are standard, accepted tools in the field of international development, yet they still vary to some extent. For example, the UN Committee for Development Policy lists 47 countries as being “Least Developed Countries.”45 The United Nations has another classification, the Human Development Index, which is not voted on by UN diplomats but instead is based on characteristics of citizens from countries: life expectancy at birth, expected years of schooling, mean years of schooling, and gross national income (GNI) per capita.46 It lists 38 countries as having “low human development.”47 The World Bank’s equivalent list of “lowincome economies” contains 31 countries, defined as GNI per capita of $1,025 or less per year.48 Furthermore, both the UN Human Development Index and the World Bank country classification lists have four rankings. The UN Human Development Index is divided into Very High Human Development, High Human Development, Medium Human Development, and Low Human Development.49 Instead of including two categories for developed countries, the World Bank classification includes two categories for middle-income countries. The World Bank categories are High-Income Economies, Upper-Middle-Income Economies, Lower-MiddleIncome Economies, and Low-Income Economies.50 While there is variation in the three indices, the countries that appear on some but not all of the three lists cannot be considered to be providing enough opportunity to their citizens – for example, 45

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49 50

UN Committee for Development Policy, List of Least Developed Countries (as of Dec. 2018), https://www.un.org/development/desa/dpad/wp-content/uploads/sites/45/publication/ldc_list.pdf. The UN classifications are from 2018. The United Nations has already passed five resolutions declaring that Angola, Bhutan, São Tomé and Príncipe, Solomon Islands, and Vanuatu will each move out of the group within a few years’ time. Human Development Reports, Table 1. Human Development Index and Its Components, United Nations Development Programme, http://hdr.undp.org/en/composite/HDI (last visited June 9, 2019). Id. World Bank Country and Lending Groups, World Bank, https://datahelpdesk.worldbank.org/ knowledgebase/articles/906519-world-bank-country-and-lending-groups (last visited Sept. 15, 2019). The World Bank figures are from 2019. UN Committee for Development Policy, supra note 45. World Bank, supra note 48.

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Bangladesh, Cambodia, Djibouti, Kiribati, Laos, Lesotho, Mauritania, Myanmar/ Burma, North Korea, Sudan, Syria, Tajikistan, Timor-Leste, Tuvalu, and Zambia appear on some lists but not others. Many of the most salient differences between poor, middle-income, and rich countries can be approximated by how advanced their economies are. As the World Bank suggests, “While it is understood that GNI per capita does not completely summarize a country’s level of development or measure welfare, it has proved to be a useful and easily available indicator that is closely correlated with other, nonmonetary measures of the quality of life, such as life expectancy at birth, mortality rates of children, and enrollment rates in school.”51 Again, these are not distinctions that always hold, nor can they be made with atomic precision. Yet the distinctions are used in part because economic policies have to be crafted to the needs of countries. Likewise, we should stop thinking of copyright law as some Platonic universal and instead implement different copyright policies depending on the needs of each nation. Further, the burden of proof should be on the critic to articulate why such accepted and widely used divisions are unprincipled. The question is whether copyright’s arc will significantly improve the lot of most individuals in the world compared to the existing international system of extreme copyright. It will. It will not be perfect, but very little is. Most important, the people who will be helped by copyright’s arc would largely be those most in need. Those who will be hurt by the realization of copyright’s arc would mainly be the elite producers of technologically advanced, hundred-million-dollar films, video games, and TV shows, not the sculptors of Haiti.52 Certain developing countries may prematurely categorize themselves as middle income, while fewer middle-income countries may be slow to acknowledge 51

Why Use GNI per Capita to Classify Economies into Income Groupings?, World Bank, https:// datahelpdesk.worldbank.org/knowledgebase/articles/378831-why-use-gni-per-capita-to-classifyeconomies-into (last visited May 12, 2019). There are limits to the use of GNI. For example, GNI may be underestimated in lower-income economies that have more informal, subsistence activities. Nor does GNI reflect inequalities in income distribution. Users should also note that the Atlas method used to convert local currencies into a common U.S. dollar is based on official exchange rates, which do not account for differences in domestic price levels. The Atlas method, with three-year average exchange rates adjusted for inflation, lessens the effect of exchange rate fluctuations and abrupt changes, but an alternative method would be to use the purchasing power parity (PPP) conversion factors of the International Comparison Program. To date, however, issues concerning methodology, geographic coverage, timeliness, quality and extrapolation techniques have precluded the use of PPP conversion factors for this purpose.

52

Id. David McFadden, Haiti Artists Forge Int’l Reputation with Art Made of Junk, Jakarta Post (Apr. 11, 2016), https://www.thejakartapost.com/life/2016/04/11/haiti-artists-forge-intl-reputationwith-art-made-of-junk-.html. After pitching “a shredded tire he found atop a towering sculpture he built out of rusty engine parts, bed springs and other cast-off junk,” Andre Eugene, one such sculptor, said, “‘This is what I do: I work with the garbage of the world.’” Id.

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themselves as developed. Recognizing that the distinctions are not in reality bright lines, we should not assume a rush to reclassify, but instead keep in mind there are existing advantages to remaining true to one’s economic reality such as favorable trade concessions and access to lower-cost loans through international financial institutions.53 For example, the African Growth and Opportunity Act (AGOA) provides 39 sub-Saharan African countries the ability to export to the United States.54 AGOA provides such duty-free access on more than 6,000 product lines.55 Additionally, developing countries may come to quickly see the value of minimal copyright protection, allowing for the inexpensive importation of educational material as well as entertainment. As mentioned earlier, they already understand the need for flexibility in patent law to enable them to obtain low-cost drugs to treat disease. Given this fact, would developing countries be slow to acknowledge a change in position when they obtain middle-income status, so as to avoid enacting moderate copyright? This also seems unlikely since politicians are not usually in the business of downplaying their achievements or telling citizens that they are worse off than they genuinely are. Nor are they likely to say no to stimulating the growth of local entertainment corporations. As for other possible scenarios, middle-income countries might be slow to declare achieving developed country status.56 Assuming the country bought into the idea of copyright’s arc, just as discussed earlier, its politicians would want to celebrate their progress. The biggest roadblock to acknowledging the transition from middle-income to developed status might be corporate capture. Yet corporations would likely not care how a country is classified, concentrating instead on what the copyright laws are within the country. If it is unlikely that a middle-income country would not acknowledge its success, might a middle-income country be too quick in declaring a transition to developed country status? Again, this is a possibility. In fact, it might be the most expected of all possibilities. Yet the decision would likely be independent from the country’s stance on copyright levels given the value that moderate copyright can provide middleincome countries. To be clear, I think such independence is appropriate; the only 53

54

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For a counterexample, see Editorial Board, It’s Time for China to Grow Up and Leave the World Bank Nest, Wash. Post (Feb. 7, 2019), https://www.washingtonpost.com/opinions/globalopinions/its-time-for-china-to-grow-up-and-leave-the-world-bank-nest/2019/02/07/e8c79c96-2a4311e9-b011-d8500644dc98_story.html?utm_term=.5fb28ff1dbee. African Growth and Opportunity Act (AGOA), Office of the United States Trade Representative, https://ustr.gov/issue-areas/trade-development/preference-programs/africangrowth-and-opportunity-act-agoa. Given that AGOA is a regional trade concession, it does not apply exclusively to developing countries; as of Jan. 1, 2019, it also applies to some middle-income countries such as South Africa and Namibia. Country eligibility is reassessed every year. Joshua P. Meltzer, Deepening the United States-Africa Trade and Investment Relationship, Brookings (Jan. 28, 2016), https://www.brookings.edu/testimonies/deepening-the-united-statesafrica-trade-and-investment-relationship/. I would like to thank an anonymous referee for suggesting this scenario.

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concern would be that it might deny middle-income countries some of the benefits from moderate copyright. While the decision to transition from one copyright regime to another cannot be perfectly precise, just as there are no absolute practical distinctions between levels of development, tailoring copyright protection is as important as tailoring other policies, such as economic policies, from country to country depending on their needs. Finally, given much of life is a spectrum or continuum, the reform of any country’s copyright laws along the stages of copyright’s arc does not have to happen all at once. For example, a country gradually transitioning from developing to middle-income status could roll out modest expansions in copyright protection over time. Not only would this possibly be easier to implement, it could help gauge how much of an expansion or reduction in copyright is warranted to obtain the desired results. Getting Citizens to Respect Shifting Copyright Regimes There are two potential shifts to copyright’s arc.57 First, when a developing country transitions into a middle-income country. Second, when a middle-income country transforms into a developed country. As countries change positions in the arc, it would be necessary to acclimate citizens to the new copyright rules. Acclimating Individuals in Countries Approaching Middle-Income Status to Paying for Art First, it must be remembered that just as there will likely always be people who assault others or commit fraud, there will almost certainly be some individuals who will consume copyrighted artwork illicitly regardless of how entrenched a norm may be. Such violations are not insignificant in many areas of the law; for example, it is estimated that nearly 25 percent of women are “raped and/or physically assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime.”58 Yet piracy may be on the top of our minds because of Big Copyright’s advertising campaigns urging us to stop it (and implying that piracy is rampant), such as its “You wouldn’t steal a Car” movie trailer.59 57 58

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Of course, ignoring tragic scenarios relegating a country to a less well-off economic status. Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, Extent, Nature, and Consequences of Intimate Partner Violence: Findings from the National Violence against Women Survey iii (July 2000). Their findings come from a survey consisting of “telephone interviews with a nationally representative sample of 8,000 U.S. women and 8,000 U.S. men about their experiences as victims of various forms of violence.” Id. Press Release, Intellectual Property Office of Singapore, Be HIP at the Movies (July 27, 2004), http://web.archive.org/web/20040804074635/http://www.ipos.gov.sg/main/newsroom/media_ rel/mediarelease1_270704.html. The trailer, a collaboration between the Intellectual Property

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Second, we need to give people some credit. If individuals recognize the value of a product or service, even voluntary contributions alone can sustain such activities. For example, Radiohead, a music band, released an album online, titled In Rainbows, and allowed consumers to decide how much they wanted to pay for it, with the option of not paying anything at all.60 In a survey of consumers, only about a third of those who downloaded the album chose to pay nothing, while some paid substantially more than industry norms.61 Further, over 10 percent polled spent 40 British pounds, slightly over US $55, on the discbox that includes the “download, the album on vinyl, a CD with additional tracks, and original art-work.”62 A Times article quotes Johnny Marr, an English member of Modest Mouse, a US band, as saying: “I think it’s a really fantastic idea because it puts the responsibility back on people’s own consciences and deals with people as grown-ups.”63 Such optimism is not isolated; a restaurant in St. Louis allows its roughly 4,000 customers a day to “pay what [they] like.”64 Around “65 percent pay the recommended amount. The remainder are roughly divided between over-payers and those who pay less or nothing.”65 Panera ran a similar experiment. It operated numerous stores on a voluntary, “Pay what you can” basis. While all of them closed but one, the remaining restaurant can recoup about 85 percent of its costs in this manner.66 Some viewed this experiment as a failure in that Panera could not reach a breakeven point, yet I am pleasantly surprised that the program came so close to selfsufficiency, given that it created a voluntary, private system to redistribute money to help those in need (while the remaining 15 percent could have been covered by donors). The heartbreak of the Panera experiment was that it seems to have failed in part because “‘the people who were not food insecure did not want to eat lunch with people who were food insecure.’”67 Third, dramatically reducing copyright will, over the long term, build respect for the rule of law and for liberal values such as equality, human rights, and freedom.

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63 64 65 66

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Office of Singapore and the Motion Picture Association, proclaims: “You wouldn’t steal a Car. You wouldn’t steal a Handbag. You wouldn’t steal a Mobile Phone. You wouldn’t steal a Movie. Movie Piracy is Stealing. Stealing is Against the Law. Piracy. It’s A Crime.” Id. Adam Sherwin & Yepoka Yeebo, How Much Is Radiohead’s Online Album Worth? Nothing at All, Say a Third of Fans, Times (Oct. 11, 2007, 1:00 AM), https://www.thetimes.co.uk/article/ how-much-is-radioheads-online-album-worth-nothing-at-all-say-a-third-of-fans-98vg59h6df0. Id. Yahoo Finance (using the exchange rate of 1 British pound equaling US $2.0338 on Oct. 11, 2007, the date of the earlier cited Times article), http://finance.yahoo.com/currency-converter/? u#from=GBP;to=USD;amt=1. Sherwin & Yeebo, supra note 60. Dough Rising: Fast-Food Restaurants, Economist, Oct. 9, 2010, at 94. Id. Sarah Gonzalez, All Things Considered: What Happened When Panera Launched a “Pay What You Can” Experiment, Public Radio East (Jan. 24, 2019) (speaker is Giana Eckhardt, professor of marketing at Royal Holloway, University of London), https://www.npr.org/2019/01/24/ 688372823/what-happened-when-panera-launched-a-pay-what-you-can-experiment. Id.

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These are foundational building blocks to a healthy society in which individuals respect and trust each other. This respect is often what causes people not to violate someone else’s copyright. This idea is best illustrated by a study of how many parking tickets UN diplomats from different countries received on the streets around the UN headquarters in New York City.68 Since collecting parking fines from diplomats was next to impossible given their diplomatic immunity (before a rule change in 2002), variations in the number of fines collected by diplomats from different countries spoke to the cultural values held by individuals in varying countries.69 Diplomats from countries with the highest level of such foundational values collected the fewest parking tickets, while many diplomats from developing countries appeared to have almost completely disregarded parking laws, collectively racking up shocking amounts in unpaid fines.70 This demonstration is indicative of the proposition that what matters is not whether people will become accustomed to not paying for art but rather the larger values present in the society, one such value being respect for the rule of law. If it is clear that copyright is being dramatically reduced for the benefit of a developing country’s long-term interest and that it will later be increased to a moderate level for legitimate reasons once the rule of law and respect for progressive values have gained greater acceptance, one would expect that the majority of consumers in the developing country would respond fairly. Finally, if developing countries build respect for legal institutions and good governance through the proposed policy, public officials would operate more efficiently and fairly. Such improved governmental performance would mean better enforcement of copyright. Convincing Individual Artists and Other Citizens in a Country Transitioning to Developed Status to Reduce Copyright The second shift is to get artists and other citizens in a country transitioning from middle-income to rich status to respect a policy shift of significantly reducing copyright. Citizens in such a country will be faced with the trade-off of an abundance of entertainment choices versus the realization that they would get more out of creating on their own and consuming less. Just like some of us decide not to keep junk food in our houses so as not to be tempted, entertainment consumers might appreciate the equivalent of less tempting options to pick from. The challenge is getting consumers to understand this trade-off. If citizens worry about ensuring artists are sufficiently financially supported, they would have many options besides a moderate copyright regime to show their appreciation. Consumers can voluntarily pay for content, as in the example of music 68

69 70

Raymond Fisman & Edward Miguel, Corruption, Norms, and Legal Enforcement: Evidence from Diplomatic Parking Tickets, 115 J. Pol. Econ. 1020, 1021 (2007). Id. Id. at 1045.

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releases given earlier, just as a TV show fan club can encourage its members to collectively agree to fund the next season of the show. Also, citizens can lobby for increased governmental support of the arts in numerous ways. Nonentertainment companies could even assist artists by employing them during the day so they can afford to create at night. This may sound outrageous, but in the United States, Olympic hopefuls are funded in part in such manner. For example, Home Depot provides jobs with flexible hours for Olympic athletes. Further, there is a distinguished list of artists who held day jobs, not least women who ran households and raised children while writing, like Shirley Jackson. Anton Chekhov and William Carlos Williams were medical doctors. Toni Morrison worked as an editor and raised two children by herself while writing The Bluest Eye. Joseph Conrad was in the merchant navy; T. S. Eliot was in banking; Henri Rousseau was in customs and excise. Charles Ives, Wallace Stevens, and Franz Kafka were in the insurance industry. Pablo Neruda and Octavio Paz were diplomats. Anthony Trollope worked at the post office. Inspiring an artist who previously made a living as a full-time artist to take up a position as a museum guard like Robert Ryman or a janitor like Henry Darger might not be as easy. However, even under current, incredibly expansive copyright, only a select percentage of artists are commercially successful enough to not have to make sacrifices for their art. Thus the world with copyright already looks more like that of Morton Feldman working in his family textile business than Damien Hirst buying his own sculpture of a platinum skull studded with 8,601 diamonds for close to $100 million.71 It is even plausible that the struggle of life improves the quality of art many artists create. To communicate something meaningful might be harder if one is hanging out with the elite rather than experiencing life like the rest of us. This possibility is related to the current literary debate about whether writers should write for art connoisseurs or the general public. The last time this populism versus elitism debate “dominated American letters was the 1930s, when the Depression at home and the rise of fascism in Europe led most literary people to positions on the left.”72 Adam Kirsch states, “The question that divided them was whether political virtue meant writing about and for ‘the people’ – as followers of the Popular Front, a Communistinspired coalition of left groups, believed – or whether the most radical and progressive work was necessarily too difficult for mass consumption.”73 Lionel Trilling “complained about the average liberal’s assumption that ‘wit, and flexibility 71

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Technically, the skull was purchased by an investment group to which Hirst belongs. Jeremy Lovell, Hirst’s Diamond Skull Sells for $100 Million, Reuters (Aug. 30, 2007, 7:08 AM), https://www.reuters.com/article/us-arts-hirst-skull-idUSL3080962220070830. Adam Kirsch & Liesl Schillinger, Which Force Is More Harmful to the Arts: Elitism or Populism?, N.Y. Times (Apr. 13, 2017), https://www.nytimes.com/2017/04/13/books/review/ which-force-is-more-harmful-to-the-arts-elitism-or-populism.html. Id.

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of mind, and perception, and knowledge were to be equated with aristocracy and political reaction, while dullness and stupidity must naturally suggest a virtuous democracy.’”74 The Mexican painter Diego Rivera believed in a related point – that artists need to connect with and draw inspiration from the world: The subject is to the painter what the rails are to a locomotive. He cannot do without it. In fact, when he refuses to seek or accept a subject, his own plastic methods and his own esthetic theories become his subject instead. And even if he escapes them, he himself becomes the subject of his work. He becomes nothing but an illustrator of his own state of mind, and in trying to liberate himself he falls into the worst sort of slavery.75

Some might object that certain artistic fields demand the entire working day of an artist because of the monumental task of the medium, as in film, or in order to reach the pinnacle of the field, as in opera. Yet I used to work at a law firm where one employee had his own films featured in recognized film festivals and another sang at the Metropolitan Opera. True, this would make some artists’ lives more challenging. I sympathize, yet I also think it is worth the trade-off of fewer Kardashians who become fabulously wealthy from extreme copyright in exchange for liberating countless individuals from a life of overconsumption. Further, some artists might prefer to live in a society without draconian copyright laws because it would allow them more freedom in borrowing from and transforming others’ works. Or they might like the idea of establishing deeper relationships with their fans without the high castle walls of extreme copyright – without the them-versus-us mentality that breeds contempt for a curious and enthusiastic kid who illicitly downloads their work because he is inspired by it. Finally, why shouldn’t we expect artists to listen to the reasons why copyright needs to be reformed? Even if personal financial concerns are placed above moral and civic obligations, the examples given here have already shown that we can anticipate a mature response from a majority of consumers when they are asked to pay what they believe an artwork is worth. A voluntary sliding scale would certainly widen an artist’s reach, as would the disposable income that thriving economies increase. Some artists will genuinely not be convinced, while others may agree intellectually but still fear for their livelihoods or covet their own castles. Yet not all artists will fall into these two camps. Surely even financially motivated artists can be brave pragmatists and have faith in audiences. Nor should we underestimate the efficacy of moral appeals. Many artists today still believe that art requires personal sacrifice and/or that art is necessarily, even if inadvertently, political. And if the works that most inspire us are any indication, then many artists will be drawn to the prospect that their creations, if circulated more freely in developing countries, could

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Id. Walter Lippmann, A Preface to Morals 334 (1929) (quoting Diego Rivera).

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fortify belief in human rights in oppressed individuals and contribute to the fight for social and economic justice around the globe. Practicability in the Face of Corporate Resistance The previous section examined the feasibility of convincing consumers and artists to respect the goals behind copyright’s arc. Another possible criticism is that copyright’s arc, even if it is exactly what the world needs, will politically never happen – Big Copyright will lobby to ensure that extreme copyright reigns everywhere. Even if lobbyists’ money and influence fail to protect excessive copyright laws in a few countries, copyright lobbyists will continue to survive in the remaining countries and will base their counterattacks there. As for developing countries, as discussed in Chapter 2, multinational corporations need to advocate for dramatic reductions to copyright in poor countries because it could boost their profits in the long term. Presently, developing countries are not a source of revenue for entertainment multinationals because their economies do not work – they have no robust markets. If the introduction of more international works into developing countries through reducing copyright leads to an uptick in belief of human rights and freedom, such a shift in values within such societies might help solidify the rule of law and governance. Such improvements are the foundation for sustained economic growth. Over time, when some of the poor countries transform into new middle-income countries that reinstate greater copyright protections, entertainment corporations would be able to profit from their artwork there. Thus ditching extreme copyright in developing countries could in the long run lead to new consumers for existing entertainment companies. Corporations can simply do nothing and hope that developing countries experience sustained economic growth on their own, yet even if this happens, it will occur less quickly. This would make any future profits less valuable from the perspective of the present. The same enlightened profit maximization argument will not work in middleincome or developed countries where reform will be hard fought. Yet, this is beside the point. Yes, political change is difficult, as has been previously discussed. In fact, many political systems have been purposefully designed to make this so. Using history as a guide highlights that profound change is possible nonetheless and occurs more often than some of us might recollect. France did not allow all women to vote until 1965. In the United States, during the same era, minorities were fighting segregation and environmentalists were pushing for clean air and water. While substantially more progress is needed on all of these fronts, real progress has also occurred. Reducing copyright in poor and rich countries surely cannot be as daunting or improbable as taking down the Berlin Wall. This is not to say that it will be easy or that it will happen overnight. It will be an epic fight over decades. Yet this does not mean that the aim of dramatically reducing

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copyright in poor and rich countries is unsound or should be discounted because of the goal’s difficulty. An example of this harks back to Chapter 1’s discussion that most countries in the world belong to international treaties that require signatories to maintain a minimum amount of copyright protection within their boundaries. William Landes and Richard Posner, two of the most celebrated legal scholars, remain unperturbed by this. They came up with their own reform proposal for copyright law: an indefinitely renewable copyright scheme that would violate numerous existing international treaty provisions.76 While I disagree with this solution, I appreciate their response, which was that they did not see withdrawal as an insoluble impediment: “This would require the United States to withdraw from the Berne Convention.”77 They cannot see such withdrawal as insurmountable or they would not have suggested such a scheme. I mention this because treaties have provisions enabling countries to withdraw if they desire. While withdrawal may be uncommon, it is often explicitly sanctioned as part of the international legal regimes that we create. Some might formulate this concern slightly differently. They might ask: How politically stable is copyright’s arc? If copyright’s arc is fully implemented, would Bollywood and Nollywood simply take Hollywood’s place to lobby for greater copyright in both developed and developing countries? First, given that middle-income countries like Brazil, China, Russia, Indonesia, Nigeria, and India have such vast domestic markets, which poor countries lack, the necessity for entertainment corporations or individual artists in middle-income countries to oppose the reduction of copyright in developing countries seems rather tenuous. This is especially true given, as we just mentioned, that they will likely make more profits in the long run if they help support human rights and thus, indirectly, governance improvements. Second, while our existing copyright system may be considered politically stable in the sense of being unlikely to be reformed tomorrow, it is contributing to the political instability of the entire political system of democracies. Overconsumption leads to less volunteering, to apathy or learned helplessness in the political realm, to corporate control over perceptions and views, and to isolation and divisiveness. Extreme copyright is also not about to be reformed in developing countries, though it is impeding progress toward political systems that are responsive to the humanity and needs of citizens. Thus, our existing global copyright structure is stable but dangerous and unjust. If copyright’s arc brings us to a less stable, yet more just, point, is this not better?

76

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See generally William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. Chi. L. Rev. 471 (2003). William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 215 n.15 (2003). But see Christopher Sprigman, Reform(alizing) Copyright, 57 Stan. L. Rev. 485, 552 (2004).

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Copyright’s Doctrine of Aesthetic Nondiscrimination But do my attempts to alter the amount of copyright protection in particular countries run against copyright’s doctrine of aesthetic nondiscrimination, a longheld policy that aims to not grant or deny copyright protection to works based on their content? One could claim that copyright is ideologically neutral, yet copyright’s arc is ideologically driven.78 I am not arguing for or against granting copyright protection to individual pieces. I am simply maintaining that developing countries need more content from abroad. I do not attempt to claim that the law should be used to export works with certain aesthetic or ideological views. Bring it all. Put differently, I do not pick winners and losers, though I am expressing a need to advance particular values to justify the existence of copyright. We have been doing the latter for centuries and indeed currently justify copyright as advancing certain policy objectives. The same goes for my position on setting the level of copyright protection in middle-income countries. I do not discriminate based on message or aesthetics.79 I solely make the point that realistically the only artists who will have the motivation or experience to tailor their art to a particular country are artists from that country. With this in mind, middle-income countries need a particular substantive value – inclusiveness. This value can be advanced through a moderate copyright regime that protects all works that meet basic standard requirements applicable to all works.

Copyright and the Internet The advent of the Netscape browser decades ago worried entertainment companies about whether the internet would make their existence, and copyright, irrelevant. As this has not come to pass, it is unclear why the internet would be a larger threat to copyright’s arc than the present reality of global extreme copyright.80 If developing countries cannot provide the most basic services or a functioning civil service, they are unlikely to provide universal, affordable access to the internet. Thus developing country citizens not only need more information and entertainment, they need more internet access. Given that developing country bureaucrats 78

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I am not purposefully creating a straw man with this point. One reviewer mentioned this as a concern. While I do not attempt to privilege works based on their content or aesthetics, Fred Yen has demonstrated that the “existence of copyright makes subjective judicial pronouncements of aesthetic taste necessary” – i.e., dutifully following the doctrine of aesthetic nondiscrimination may be impossible. Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247, 301 (1998). For those individuals from across the globe who desire to contribute to collaborative online artistic endeavors such as Wikipedia, copyright’s arc would not hinder their ability to contribute. This is largely due to the fact that existing collaborative projects rely heavily on Creative Commons or similar licenses to get around copyright’s constraints.

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ineffectively enforce most laws, copyright is no exception. Yet, as we have seen, the existing hurdle of extreme copyright in poor countries is making licensing too expensive for NGOs to distribute content in media-dark or media-starved areas. Copyright’s arc would change this. Plus, it might motivate nonprofits to concentrate more on bridging the technological access gap, which is as important if not more so than copyright reform. Would substantial reductions in copyright in rich countries lead to even more overconsumption? For the same reasons articulated earlier – different languages and cultures, less robust demand for old content than new – individuals in developed countries will consume less entertainment over time if copyright is dramatically slashed. The fact that accessing entertainment is easy over the internet will not change these reasons. Technological access to as much electricity as you want for free will not make you use more than you want to given other constraints. Thus, whether the internet would break copyright’s arc rests on what would happen in middle-income countries. From the perspective of middle-income entertainment companies, enforcement needs to catch up to developed country standards for both digital and nondigital works. Yet enforcement concerns are already a challenge – that is, copyright’s arc would not harm middle-income countries’ enforcement efforts any more than the status quo currently does.81 Further, even with dramatically reduced copyright in developing and developed countries, it is unclear that many individuals from middle-income countries would visit foreign websites to download unauthorized copies of works any more than they are currently doing. There are language barriers, convenience hurdles, and trust obstacles – it would not be possible to know exactly what you might be downloading onto your computer or streaming on your phone.

tailoring copyright Copyright regimes must vary significantly between countries in order to maximize the benefits that citizens in different countries obtain from consuming and creating art. The varying regimes of copyright’s arc would either enforce each other or at least not conflict. Yet the arc is intricate. This is a strong point of the theory because life is complicated, and copyright’s arc reflects that in an effort to help build support for human rights in poor countries, reduce tragic overconsumption in rich countries, and allow for middle-income countries to benefit not just from a sense of national unity, but a unity that is inclusive, that embraces the diversity of many countries. A one-size-fits-all approach across nearly 200 countries simply does not ring true.

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Putting aside laws such as the Digital Millennium Copyright Act that might be repealed.

6 Transitioning to Copyright’s Arc

The History of the World is nothing but the development of the Idea of Freedom. —Friedrich Hegel1

As Hegel intimates, it would be anticlimactic if the history of the world was leading to something as sobering as dictatorship. Yet extreme copyright “progression” is depressing – it is failing to reduce subjugation in developing countries, divisive nationalism in middle-income countries, and entertainment imprisonment in developed countries. We need freedom from oppression, prejudice, and overconsumption. Yet legal reform may not come soon. To significantly alter countries’ copyright laws, either a groundswell of public support for reform is required or the dysfunctions of the political process must be improved so that legislators do not kowtow to lobbyists but make independent, informed decisions in the best interest of their countries. Lawrence Lessig, once a preeminent copyright scholar, understood this and decided to focus his research on reforming the political process instead of concentrating on copyright per se. Mancur Olson’s insights into how specialized interests are often effective in gaming the political system at the expense of the public interest have been widely recognized.2 Yet effective countermeasures to correct such suboptimal dynamics are difficult to design and implement, given that corrective measures need to be passed over the opposition of special interests. For example, campaign finance reform in the United States has been disappointing. Given the challenges of building a popular movement and outmaneuvering Big Copyright’s lobbyists, both paths must be pursued in the hope that one succeeds.

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Georg Wilhelm Friedrich Hegel, The Philosophy of History 456 (J. Sibree trans., Prometheus Books 1991) (1837). See generally Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1971).

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Big Copyright has fought too hard for the current copyright regime to give it up easily. This chapter presents policies aimed at helping societies transition from their currently extreme copyright regimes to the optimal position for their situation on copyright’s arc. Such ideas might alleviate some, but not all, of the problems of excessive copyright. Additionally, certain recommended policies are not meant to facilitate the reduction in copyright so much as they are meant to further the guiding principles behind copyright’s arc – for example, strategies that aim to boost the creation of art by average citizens in developed countries or plans that endeavor to increase the acceptance of liberal values in developing countries. I do not mean to discourage. As I mentioned earlier, public movements can have tremendous impact. And as we have seen with the fall of communism, movements can be contagious not only because they serve as examples for others but because they can relieve political pressure imposed on a state by other countries. Thus, once some countries reform copyright, the pressure on other countries to maintain extreme copyright will ease.

policy proposals to increase international art distribution in poor countries It is not likely that all relevant actors will agree with such reasons or that progress on substantially weakening copyright in developing countries will occur in the short term. Thus this section discusses practical ideas on how to get actors closer to advocating for or (in the case of developed countries and Big Copyright) acquiescing to the reduction of copyright in developing countries and how to give developing countries significantly increased access to international art even with copyright as it is. These goals can be accomplished by pressuring, ignoring, or cooperating with Big Copyright. Coercing strategies are the most familiar – for example, lobbying, boycotts, and public movements – and hence will not be discussed here.3 The potential benefits of increasing the amount of middle-income and developed country artwork available to developing country individuals are, of course, tempered if a poor country refuses to let the artwork in.4 In the case of censuring, despotic developing country regimes, getting rid of copyright is only 3 4

Many of these ideas can be pursued simultaneously. China is far from alone in heavily censoring copyrighted material in hopes of maintaining its repressive regime: China’s “great firewall” already imposes tight controls on internet links with the rest of the world, monitoring traffic and making many sites or services unavailable. Other countries, including Iran, Cuba, Saudi Arabia and Vietnam, have done similar things, and other governments are tightening controls on what people can see and do on the internet. The Web’s New Walls, Economist, Sept. 4, 2010, at 11. Such policies are followed by despots around the globe, including Gurbanguly Berdimuhamedov in Turkmenistan, Aleksandr Lukashenko in Belarus, and Bashar al-Assad in Syria.

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part of the solution; the rich countries must actively promote developed country artwork in the developing countries. Subsidies Public subsidies by developed country governments or foundations could take numerous forms. A developed country government could buy the rights to distribute, in developing countries only, certain Hollywood creations that are pro-woman, pro-democracy, etc. Or developed country governments could provide tax breaks to Hollywood to encourage the free distribution of its content in developing countries. This is simply a variation on long-held policies of developed countries subsidizing the creation of new art that shifts the incentive to distribution of works within developing countries. Developed Country Individuals Sponsoring Rich Country Art Viewings in Poor Countries Big Copyright, with or without the assistance of governments, could establish websites where developed country citizens could watch developed country artwork and advertisements. For every television show and advertisement that a developed country individual watches, the copyright holder would donate one free viewing of the same television show to a developing country individual. This same idea could be applied to numerous art forms. Further, it could be modified in various ways. For example, developed country individuals could simply go to a website and watch advertisements in order to sponsor viewings of developed country artwork in developing countries.5 Alternatively, for every television show a developed country individual watches, she could sponsor the viewing of any developed country artwork by developing country individuals, not just the show she watches. A further variation of this concept could be applied wholly in developing countries – in return for watching a set of advertisements, a developing country individual could watch a developed country artwork for free.6 This idea could even be structured to allow developing country individuals to reciprocate – for example, a sister website could exist in developing countries so that for each local television show a developing country individual watches, a free viewing would be donated to a developed country individual. Exposure to artwork would be more helpful to individuals in media-poor areas within developing countries than to those who already have internet access. To reach people without ready access to the internet, cell phones, or television, portable movie screens attached to vehicles could travel from village to village, 5

6

This idea is similar to thehungersite.com, a website where clicking a button causes the website’s sponsors to donate money to organizations fighting hunger. Much like hulu.com used to allow viewers in the United States to watch television shows and movies for free as long as they viewed ads that appear with the work.

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providing free screenings. iDE (formerly known as International Development Enterprises) did just this. In the spirit of educational entertainment, the global organization produced a full-length film in which a “treadle pump played a central role in the plot” to publicize the benefits of such a cheap yet effective irrigation tool.7 Then iDE used a portable generator and screen to play the movie “to a rural audience of a million people a year.”8 Such simple free mass distribution techniques need to be nurtured and developed. Friendly Fan Competitions Star Wars or Star Trek? Black Panther, Wonder Woman, or Spider-Man? Fans of rival franchises or superheroes could create friendly fan leagues that compete to donate the most free viewings to potential new fans in developing countries.9 Such leagues could be linked to events like Comic Con. Bottom-Up Campaign Developed country citizens, in cooperation with Big Copyright, could start a campaign that allows music buyers to pay an extra 10 or 25 cents per song or album so that the copyright holders will distribute their material in developing countries for free. Differentiating Artwork: Charging for Premium Versions Hollywood could consider innovative commercial arrangements such as legally distributing free black and white copies of television shows and movies but charging for color versions of the same works.10 Copyright-Free Clearinghouse A clearinghouse could be created that would allow developed country copyright holders to donate the free or discounted use of their copyrighted artwork to certain 7

8 9

10

Treadle pumps are an alternative to dam-and-canal irrigation systems. Paul Polak, Out of Poverty 150 (2008). Id. See also Sonia K. Katyal, Slash/ing Gender and Intellectual Property: A View from Fan Fiction, in Diversity in Intellectual Property: Identities, Interests, and Intersections 315 (Irene Calboli & Srividhya Ragavan eds., 2015). Some individuals in developing and middle-income countries use innovative ways to communicate or educate through art. For example, Brij Kothari, in India, “created a system called Same Language Subtitling. The system uses color to highlight subtitles word by word as the songs play – akin to ‘follow the bouncing ball.’” Stephen C. Smith, Ending Global Poverty: A Guide to What Works 110 (2005).

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developing countries or even to particular groups within developing countries. Such a clearinghouse could work with Creative Commons to develop a new license for this purpose.11

Expanding Subtitles and Dubbing Governments or foundations could fund programs to subtitle or dub rich country artwork into the local languages of developing countries. Big Copyright could be convinced to participate because the dubbing or subtitling would limit the likelihood that developed country individuals would illegally access such material – for example, it is unlikely that Germans would desire a copy of a Hollywood movie in Pashto. A further limiting factor would be to host such dubbed or subtitled material on local-language websites, yet again making it harder for developed country citizens to even find such material on the web. It would be difficult and not worth the hassle for a teen in the United States or Japan to find a free, bootlegged copy of a Hollywood movie on an Arabic website if she does not know Arabic. Such a program could rely on assistance from fans to dub the voices – fans who are fluent in languages spoken in developing countries. Program coordinators could even appeal to the egos of developing country elites by asking them to voice their favorite movies and shows.

Compulsory Licensing Catering to a developing nation’s needs in trade policy is a familiar situation, which is explicitly provided for through compulsory licensing – international trade rules that give developing countries the right to modify intellectual property protection to address serious concerns, like debilitating diseases, within their countries.12 While compulsory licensing is most widely known in regard to patents in the pharmaceutical field, it can also be used in the copyright realm for not only educational works but also entertainment.13 Sadly, the existing rules are incredibly restrictive, eviscerating the hope that copyright compulsory licensing can be an effective tool without reform.14 11

12

13

14

Share Your Work, Creative Commons, https://creativecommons.org/share-your-work/ (last visited Aug. 4, 2019). Compulsory licensing of copyright is permitted under the WTO’s TRIPS provisions, though it is not explicitly referenced as such within the treaty, unlike the compulsory license of patents under Article 31. Article 13 of TRIPS incorporates the Berne three-step test, which limits how member states can relax copyright protection. If poor country governments opt not to invoke copyright compulsory licensing, a new trade provision could be established, possibly explicitly only for copyright, which would allow nongovernmental organizations (NGOs), instead of developing country governments, in poor countries to invoke a compulsory licensing-like proviso. See also Daniel J. Gervais, (Re)Structuring Copyright: A Comprehensive Path to International Copyright Reform 341–44 (2017) (discussing the Berne Appendix).

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Digital Lending Libraries Libraries in the United States buy digital copies of books and lend out each copy to one person at a time in developing countries.15 Similar arrangements, funded by governments or foundations, can be established for electronic books, movies, television shows, etc.

Celebrities Insisting on Free Distribution in Poor Countries Efforts could be made to convince famous Bollywood or Hollywood actors to insist that if they decide to appear in a film or TV series, the studio must agree that the film or show will be free for viewers in developing countries. Given the clout of many celebrities and the low cost of meeting such a demand on the part of studios, such contractual clauses could hold promise.

National Security Copyright Taskforce Developed country governments need to launch, if they have not already,16 copyright task forces within their national security framework to give greater emphasis and visibility to copyright policy’s effect on national security. Such copyright task forces could explore ways in which rich country artwork can benignly assist in strengthening the spread of liberal ideals, perhaps drawing from some suggestions listed here. Initiatives could be as simple as weekly outdoor movie screenings sponsored by US embassies in developing countries. Possibly the greatest area for potential positive influence, and also the least controversial given the classified or secretive nature of such organizations, would be implementing policies to undermine despotic, closed regimes like North Korea. Such task forces could expand upon Radio Free Europe’s mission of providing “free media in unfree societies”17 or the practice up until 2004 of South Korea and North Korea both blasting propaganda messages at each other using loudspeakers in the Korean demilitarized zone.18 15

16

17

18

Motoko Rich, Libraries and Readers Wade into Digital Lending, N.Y. Times, Oct. 15, 2009, at A1. “Brian Uzzi of Northwestern University in Evanston, Illinois, who advises intelligence agencies on democracy-promotion analytics, says diplomatic services are mapping the ‘tipping point’ when ideas go mainstream in spite of government repression.” Untangling the Social Web, Economist, Sept. 4, 2010, at 17 (special insert titled The Economist Technology Quarterly). About Us, Radio Free Europe / Radio Liberty, http://www.rferl.org/info/about/176.html. Radio Free Europe and Radio Liberty “journalists report the news in 21 countries where a free press is banned by the government or not fully established. We provide what many people cannot get locally: uncensored news, responsible discussion, and open debate.” Id. Donald Kirk, Deadly Silence at the DMZ, Asia Times (May 29, 2010), http://www.atimes.com/ atimes/Korea/LE29Dg01.html.

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Reciprocal Non-copyright Agreements New voluntary arrangements should be considered, such as a developed country and a developing country agreeing to a reciprocal non-copyright agreement whereby each country’s artwork would be freely accessible only in the other country – for example, US artwork would be free in Sierra Leone though not in the United States, while art from Sierra Leone would be free in the United States.19

Subsidizing Tools to Disseminate Artwork Foundations or governments could increase their subsidies to programs that help disseminate tools that enable broader authorized access to developed country artwork – such as mobile devices, computers, internet connections, software, and radios – in the same manner that the Open Society Institute donated photocopying machines to groups in Eastern Europe before the fall of communism.20 Such a policy would not only assist the poor in remote areas but also help individuals in politically repressive regimes to work around state censorship.

Copyright Corvée France’s ancien régime implemented a mandatory labor scheme, the corvée, “which obligated citizens to work a set number of days without compensation for the King and local lords.”21 Developing countries could establish copyright corvées – a day, week, or month every year, during which copyright owners would be required to allow free access to their copyrighted works to all.22

alternative policies to increase artistic production by the general public in developed countries The ultimate goal of copyright reform in developed countries is to get individuals to consume less and create more, not to alter copyright law for its own sake.23 Thus if 19

20

21

22 23

Of course, modification of national treatment provisions within international agreements would have to be revised in order to make such reciprocal non-copyright agreements functional. Anders Åslund, What Could the West Have Done to Help the East?, in The Paradoxes of Unintended Consequences 215, 232 (Lord Dahrendorf et al. eds., 2000). Martin Skladany, Copyright Corvée: Inverting the Ancien Régime, 34 Eur. Intell. Prop. Rev. 741 (2012). Id. Most of the ideas in this section are not new; they are mostly a combination of long-existing, viable ideas. For more strategies and policies, see Martin Skladany, Big Copyright versus the People: How Major Content Providers Are Destroying Creativity and How to Stop Them (2018).

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we can develop new ideas or revisit existing ideas to encourage a healthy balance between consumption and creation, we should do so regardless of whether we have the political capital to reduce copyright.24 While these policies on their own, without the reform of copyright, would likely increase the number of people creating art, combining them with copyright reform might have a transformative effect.25 Here are a few strategies we should consider. Strengthening the Commons Resistance against ossification of the soul can be fostered by encouraging a more robust commons along with a dramatic reduction in copyright.26 Doing so would provide existing and would-be artists more material to borrow from when creating. The two measures are in fact linked: significantly weakening copyright law would strengthen the commons. Numerous policies could help make the commons more robust. These policies are most clearly articulated by Yochai Benkler’s “three-layered representation of the basic functions involved in mediated human communications.”27 First, the physical layer, involving items like machines and cords, encourages approaches like open wireless networks and municipal broadband programs. Second, the logical layer – code – advocates for initiatives like free software development and peer-to-peer networks.28 Finally, the content layer, while including copyrightrelated issues, also comprises other policies like fostering sharing practices and use of Creative Commons licenses.29 All of these suggested policies tied to one of the three layers could boost the public domain, directly or indirectly, and hence encourage individuals to create. Reinvigorating Arts Programs in Public Schools Growing up, many of us might have taken art and music classes in public schools for granted – they were simply part of the standard curriculum that we all either had to 24

25

26

27

28 29

In fact, there may be policies that would have a greater positive effect than copyright reform – I am not claiming that copyright reform is the most important policy we should pursue. These policies could also help employ some of those left unemployed by the drop in commercial art. Chander and Sunder’s observation about the public domain – that different individuals will have unequal access to make use of the commons given differences in income, wealth, education, etc. – is relevant to my argument, insofar as the commons can motivate or assist individuals to create, because as a society we should take steps to equalize individuals’ opportunities to use the commons to create and communicate. See generally Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Cal. L. Rev. 1331 (2004). Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 392 (2006). Id. at 395. Id.

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suffer through or looked forward to. Yet many kids have been deprived of the opportunity to learn about the arts. For example, only 35 percent of surveyed eighth-graders took a visual art class in the South of the United States, while only 33 percent did so in the West.30 Even though 68 percent of surveyed eighth-graders in the Northeast did so, that still leaves many behind.31 Instead of nurturing creativity, we are putting kids in front of screens in school more often and at an earlier age. Paul France, the former “poster-teacher” for AltSchool, a start-up education company with investors such as Mark Zuckerberg, said for him the “turning point came one morning when he looked around a kindergarten classroom, ‘and the kids were staring at their tablets, engrossed by them.’”32 He said he was thinking, “‘They could be building with blocks, they could be doing a number of different things that are more meaningful that also build social and emotional skills but they’re choosing not to. Why? Because the tool is so addictive, that’s all they want to do.’”33 We need to take away the tools of overconsumption, screens, and bring back the tools of creative expression, such as paintbrushes and pencils. Community Art Educational Programs Not only do we need to breathe life back into public school arts programs, we must do the same for community art educational programs. Such efforts could broaden the base of art forms to include gardening, bricklaying, cooking, storytelling, etc. Additionally, more resources could be put into art therapy programs. Governmental Art Grants We often believe consumption and production questions are best left to the market. But if our goal is to reduce overconsumption by spurring people to create more art on their own, the market will not necessarily deliver optimal results. This presents government with a legitimate reason to step in and provide meaningful incentives for the public to create that cannot be easily captured by Big Copyright. One form of incentive the government could use is the subsidization of individuals’ creative efforts. Stephen Breyer suggested such an option: “It would also be possible for the government to pay for books to be produced.”34 30

31 32

33 34

David Loewenberg, New NAEP Data: Deep Rifts in Access to Arts Education, Education Writers Association (Aug. 17, 2017), https://www.ewa.org/blog-educated-reporter/new-naepdata-deep-rifts-access-arts-education. Id. Rob Waters, The Backlash against Screen Time, Atlantic (Nov. 9, 2018), https://www .theatlantic.com/education/archive/2018/11/screen-time-backlash/567934/. Id. Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 283 (1970). See also William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (2004).

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One can view government financial policies that encourage the creation of art by the general public as subsidies because they reduce the costs involved with artistic production. Such costs could include the price of paint, film, and paper and the opportunity cost of devoting two hours to writing a short story instead of working two hours of overtime at one’s job. Alternatively, one could view such policies as paying the general public to perform a desired activity – as a free financial option exercisable at any time. Thus government could increase existing efforts in this realm and implement similar policies in numerous ways, including tax credits or ex ante grants to average citizens to create art.35 Finally, the government could pay any citizen who voluntarily presents proof that he or she has created a work of art.36 Do we really want to live in a society that pays people to create? Numerous European countries have no compunction about distributing cash grants and/or subsidies to couples to induce them to have more children.37 Paying people to create art, instead of babies, surely is a step down in controversy.

35

36

37

To maximize the effectiveness of this strategy, it would be wise to provide ex ante or ex post financial payments to citizens instead of tax deductions. Tax deductions would not help individuals who do not have deductions that exceed the standard deduction available to all filers. Furthermore, many people do not file taxes. Tax credits should theoretically be equivalent to cash payouts by the government, but in reality most economists prefer strict cash transfers, given the numerous small transaction costs of tax credits – learning about what they are, determining if one qualifies, additional paperwork, etc. Of course, such a strategy would have to at least consider how to deal with individuals who fraudulently attempt to pass on someone else’s art as their own and whether some standard of acceptable art should be established. See the Child Benefits section in Gerda Neyer, Family Policies and Low Fertility in Western Europe 28 (Max Planck Institute for Demographic Research, Working Paper No. 2003-021, July 2003), https://www.demogr.mpg.de/papers/working/wp-2003-021.pdf.

Conclusion

The great law of culture is: Let each become all that he was created capable of being. —Thomas Carlyle1

Copyright must support the human quest for progress, in which creativity plays an essential part. In developing countries, where few besides the elite can afford to create, copyright’s purpose should be to help artwork from all corners of the globe promote freedom, equality, and human rights; to achieve this, copyright must be minimized.2 In middle-income countries, where more individuals have the opportunity to make a living and to draw fulfillment from creating, moderate copyright can play a larger role in assisting artists to construct a sense of national identity and inclusiveness; by fostering cultural creation, copyright also fosters a collective historical and romantic sense of the common good. Finally, in developed countries, a vast majority of the population has the luxury to create, yet copyright encourages the passive overconsumption of art; if individuals are to resist the sclerotic hardening of their character by creating art, copyright’s power must be diminished. However, we must not assume that developed countries necessarily represent a final stage of the arc. With the emergence of artificial intelligence (AI), virtual reality (VR), augmented reality (AR), and social media, there might be a future fourth stage. If this new stage materializes, it would bring the arc of copyright into zero protection or negative territory. In essence, copyright law would be replaced with anti-copyright, just as matter’s counterpart is anti-matter. Practically speaking, such null or negative copyright law would entail taking affirmative steps to 1

2

Thomas Carlyle, Jean Paul Friedrich Richter, in 26 The Works of Thomas Carlyle 19 (H.D. Traill ed., Charles Scribner’s Sons 1899) (1827). This observation or hypothesis is not meant as an insult to different societies. While I do believe certain societal acts like honor killings are brutal and unjust, many situations that societies find themselves facing – for example, a brutally repressive and corrupt dictatorship – are not the choice of the vast majority of individuals within the society.

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discourage corporations from creating works that are so addicting as to trap individuals into a world of little else but entertainment. In the United States, over half the average person’s waking hours are already taken up consuming, comparatively speaking, established entertainment such as television, film, and music. The news is awash in concerns over the dark forces of social media, from nefariously influencing elections to sowing spite, yet its grip on us in terms of time is relatively small in comparison. Despite this, its allure has hooked the young more than others. The singer and actress Selena Gomez, with over 150 million Instagram followers, has said, “For my generation specifically, social media has been terrible,” and she finds it “impossible to make it safe at this point.”3 Given social media’s hold on us, our interactions with others tend to happen through screens: as a rule, technology firms seek to forestall face-to-face contact, because it lessens their control over us. How many times have you seen a group of teens hanging out together, yet all glued to their phones? Corporations push digital interaction so they can capture behavioral and location data and sell to us wherever we are, digitally and physically, at any time; they enmesh brands into our lives by feeding us carefully targeted, highly personalized product messaging dressed up as convenience, rah-rah conversation, and unmissable fun. Beyond these “consumer benefits,” part of social media’s appeal is the opportunity to reformulate ourselves and “share” the content of our lives. Yet this reformulation and sharing can quickly turn into a self-promotion bubble that is hard to escape. For social media is often less about communication than it is about mutual display and judgment. Staging a photo for Instagram to many is not artistic liberation or a memorialization of experience; it is a doomed attempt to seek approval, measured by the number of likes and followers. In addition to being trapped into consuming entertainment produced by others, social media junkies are trapped into a perpetual popularity contest. Not only do we skip over volunteering, creating, debating politics in depth, and conveying our insecurities; we choose activities for the sake of posting “selfies” and we filter our warts. Even social media microtrends to confess our failures, in the context of Twitter, often merely facilitate yet another hashtag for attention. This hypercathexis in a social “profile” breeds hyper insecurity because we know that we are not as successful, happy, or proud as we appear. As each new post adds to the lie, our ability to connect to our own experience diminishes. Instead of sharing our lives, we display competing self-representations to each other. Our “social” “creations” are building a dystopia: a digital Lord of the Flies where technology has “liberated” us to subjugate each other through unrealistic expectations. It is individuals mimicking the tactics of corporate advertising – creating addictive wants where there were none 3

Gwilym Mumford, Selena Gomez: “Social Media Has Been Terrible for My Generation,” Guardian (May 15, 2019, 7:20 AM), https://www.theguardian.com/film/2019/may/15/selenagomez-social-media-instagram-cannes-film-festival.

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by presenting a version of life that is unachievable and hollow. While advertising idealizes life to promote brands, we brand and sell ourselves. Our worries become a product – our fake online persona – that we get trapped into marketing constantly, infecting and infected by others. Such disconnect from reality has the potential to get darker. As AR and VR technology becomes more accessible and ubiquitous, more of us will spend our leisure time in enhanced or entirely constructed worlds. Already, businesspeople as well as gamers are interacting in virtual spaces via avatars; game characters can meet us on the street and enter our living rooms; and news consumers can believe, at least for a few moments, that they are visiting refugee camps, living in solitary confinement, experiencing conversion therapy, and witnessing hurricanes. As AR and VR technology becomes even more sophisticated, the power of corporate art will increase exponentially. Whereas constructing a social media persona can lead to distortion and airbrushing of reality, donning a VR headset completely blocks out the user’s surroundings and enables immersion in an entirely virtual world, often including, when the user looks down or lifts her arm, a virtual body. Imagine the allure of constant escape into such worlds if AI enables us to work less to make ends meet or strips us from our jobs and puts us on the verge of crushing poverty. Individuals may feel isolated, frustrated, and unwanted in reality, while in VR they can star in whatever imaginary adventures they choose – and more as habituation to the new technology both deadens and expands desire. If these numerous concerns mushroom, we would need to reform copyright law so that it would not only stop encouraging corporate creation, perhaps by providing no copyright protection on corporate works, but actively attempt to discourage it, without going so far as to ban creation. Negative copyright protection, such as taxing corporate works heavily and progressively, would, of course, raise free speech concerns. I am not claiming that these suggestions will be effective enough to forestall more alienation, yet the role of copyright in reconnecting us to reality is something we need to start thinking about, even if such a digital dystopia never comes about. Also, social media, VR, AR, and AI can all take numerous forms that are more or less reliant on copyright – for example, social media’s current iteration is harming us and leading us down the path of total VR immersion, yet it does not primarily rely on copyright.4 Virtual worlds created by corporations would heavily depend on

4

Copyright reform in developed countries would turn advertisers away from copyrightdependent forms of entertainment such as TV and streaming services and push them toward social media, much of the content of which is technically protected by copyright though the business model relies more heavily on network effects and sharing. Such a shift away from copyright-dependent entertainment to social media would possibly, at a future point, shift back to the more copyright-dependent field of VR. Furthermore, the field of social media will potentially blend more with the fields of VR, AR, and AI, which are generally more reliant on copyright.

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copyright, unlike, potentially, virtual worlds run on a corporate platform but whose content is generated by users. Such concerns about VR, AR, AI, and social media do not take away from the fact that numerous benefits may come from possible future developments. As a society, we might consider allowing these new technologies to progress in certain areas and not others. Speculative future visions for AI could include helping keep overconsumption at bay through shifting individuals from content to tools that help individuals create. Further, we could continue to allow patents on VR for medical devices and AR for engineering devices but disallow intellectual property protection on VR and AR entertainment.5 The need for the fourth stage of copyright’s arc is not set in stone. What seems likely to happen is not inevitable. Maybe future digital technologies will usher in unmitigated benefits. In such an optimistic scenario, we could get rid of copyright altogether as a vestige without purpose. Just as Wittgenstein’s ladder, which helps us understand the limits of logic and language, can be discarded once we understand logic’s propositions, so could copyright’s arc outlive its usefulness.6 Such a positive scenario could develop in many ways – for example, we could have an enlightened democracy that enables technology to account for our needs and encourages us to realize Carlyle’s “great law of culture.” Individuals would not have to worry about gut-wrenching poverty and human rights abuses, national divisiveness, or having their lives stolen through addicting entertainment. We might transcend law, no longer needing its elaborate, aspirational precepts, yet we could continue to admire its internal, text-based virtual world that helped build our reality. If the law is not a progenitor of global harmonious anarchy, either in the sense of helping to make itself irrelevant or of Kant’s dreams of perpetual peace, it could be progress nonetheless. While I have talked about copyright’s arc in three stages to highlight how it can help developing, middle-income, and developed countries, a more historically expansive formulation would include the absence of copyright on both ends of the arc. This expanded arc would have its beginning in the scribal culture of Medieval Europe, when there was no copyright. Its apex would be the period in time when copyright becomes and remains relevant to humanity, our present age of 5

6

If such a distinction is made, companies would inevitably attempt to blur the line, as has been attempted in numerous contexts already. While we can understand the motivations for purposefully blurring the carefully constructed doctrinal lines within IP, such blurring does not negate the value of making a distinction. Vigilance would be needed. Wittgenstein states, My propositions serve as elucidations in the following way: anyone who understands me eventually recognizes them as nonsensical, when he has used them – as steps – to climb beyond them. (He must, so to speak, throw away the ladder after he has climbed up it.) He must transcend these propositions, and then he will see the world aright. What we cannot speak about we must pass over in silence. Ludwig Wittgenstein, Tractatus Logico-Philosophicus § 6.54 (David Pears & Brian McGuinness trans., Routledge 1961) (1921).

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three stages. Its end would be this positive, contingent vision of societies that no longer need the aid of copyright. Art is too important, too essential to who we are, for anyone to seriously believe that extreme copyright laws across the globe encourage human flourishing. While the implementation of this proposal would bring significant benefits to many, copyright’s arc is only the beginning. As societies and artistic expressions evolve, the law governing artistic creation must also evolve. Copyright must always be as responsive as possible to the various roles of art; it must do justice to our diversity as well as our common humanity; and it must aspire to help all of us become all that we are capable of being. This is no small task, but art can lead the way.

Index

Access to Knowledge (A2K) movement, 26 accountability, 15, 37 Adams, Henry Brooks, 29 Administrative Procedure Act, 15 advertising, 6, 99, 115, 126–27, 133, 152, 170, 181, 190–91 aesthetic education, 32 aesthetic nondiscrimination doctrine, 177 African Growth and Opportunity Act (AGOA), 169 African Study Meeting on Copyright in Brazzaville, Congo, 18–19 AIDS epidemic, 46 Al Aswany, Alaa, 63, 104 Alesina, Alberto, 96–97 all other things being equal (ceteris paribus), 149 Alter, Adam, 115, 117, 124 altruism in art, 45, 58 American Psychological Association, 123 amygdala activation, 120 Anderson, Benedict, 76, 82–84 Anelli, Melissa, 108–9 Angola’s National Institute for the Child, 53 anti-monarchist essays, 65 anticorruption efforts, 3, 77, 102 Apple’s iTunes store, 41 Arendt, Hannah, 10, 38 Aristotle, 1 Arnold, Matthew, 76 Aronofsky, Darren, 121 art/artwork altruism in, 45, 58 beauty in, 1–2, 22, 78 beliefs and, 37 commercial art, 6–7 community art education programs, 187 conscious consideration in, 22

copyright protection impact on, 6–7, 10, 13, 22, 72, 164–66 creativity importance, 22, 137–41 as cultural building block, 20 defined, 21–23 differentiating artwork, 182 disavowing prejudice through, 35–37 diversity of benefits, 105–6 domestic artwork, 2, 39, 103, 148–49 as education in developing countries, 37–38 effect of quality on copyright, 134 exposure value of, 32–35 extreme copyright and, 20, 174–75, 193 fine art collectors, 154 freedom and, 1, 36 governmental art grants, 187–88 human rights and, 34 importance of, 193 liberal values through, 34–35, 38, 44 nation unity through, 80–87 noncorporate impact, 130–32 oppression and, 37–38 paying for in middle-income countries, 170–72 prejudice and, 35–37 production policies by general public in developed countries, 185–88 as propaganda, 62–63 reinvigorating school art programs, 186–87 sequencing release of, 42–44 transparency and, 37, 46 tyranny and, 38–39 value of exposure, 32–35 artificial intelligence (AI), 189–92 artist concerns in copyright reduction, 148–49

195

196 artist concerns (cont.) copyright reduction in transitioning countries, 172–75 copyright regimes and fairness, 164–66 in developed countries, 152–54, 158–60 in developing countries, 148–49, 154–56, 161 in middle-income countries, 156, 161 The Attention Merchants (Wu), 125 augmented reality (AR), 189–92 authorial rights conception, 9–10 Authors Guild, 19 autonomy of adults, 61 art and prejudice, 36 in human rights, 55 individualism and, 55 personhood and, 54 average shot length (ASL), 121 background television exposure, 113 Bair, Stephanie Plamondon, 28 Baldwin, Peter, 107 Bantu culture, 53 beauty in art, 1–2, 22, 78 behavior change campaigns, 28–29 beliefs art and, 37 behaviors and, 85–86 corporate beliefs, 90 cultural beliefs, 45, 53 in developed countries, 62 in developing countries, 59 of entertainment corporations, 118 in equality, 77 freedom and, 62, 148–49 in human rights, 5, 28–32, 61, 65–67, 100, 175 in humanism, 33 in middle-income countries, 62 mistaken beliefs, 37 political beliefs, 80 prejudiced beliefs, 36 psychological influences on, 86 religious beliefs, 93 Benkler, Yochai, 186 Berlin Wall, 175 Bernays, Edward, 50 Berne Convention, 17–18, 176 Besley, Tim, 97 Bhagwati, Jagdish, 144 Biden, Joe, 130 Big Copyright (Hollywood) clout in international markets, 147 copyright protection and, 48–49 copyright reduction and, 129, 145, 150–52

Index in developed countries, 155 in developing countries, 25, 47–52 entertainment corporations and, 162 expanded subtitles and dubbing, 183 high-production-value content, 132–33 in middle-income countries, 92 orienting response in films, 121 overconsumption and, 110, 118 practicability and corporate resistance, 175–76 transitioning copyright, 180–81 Big Pharma, 51 binge watching television, 111, 116 Birch, Jenna, 112 Blake, William, 87 Boksem, Maarten A.S., 119 Bollywood, 74, 88, 147, 151, 176 Boram (YouTuber), 131 Borter, Gabriella, 116 bottom-up campaigns, 182 Bowling Alone (Putnam), 74 Bratsberg, Bernt, 113 Brazil, 31, 150–51 Breyer, Stephen, 187 Brooks, Arthur C., 118 Brownstein, Ronald, 12 cable television, 30 capitalism, 48, 56–58 Castro, Fidel, 102–3 censorship historical censorship, 67–70 selective enforcement of, 71 state’s ability to, 5 totalitarianism and, 103 uncensored works, 71 Center for Internet Addiction, 115 Cheers (TV show), 43 Chekhov, Anton, 173 Chick-fil-A, 90 child abuse in global cultures, 53 China censorship in, 103 flaunt your wealth challenge, 109 government propaganda, 157–58 great firewall of, 180 mass entertainment, 157 size of film market, 128–29 Chinese Communist Party, 102 Chong, Alberto, 31 citizen concerns in developing countries, 154–55 in middle-income countries, 152–53 respect for copyright regimes, 170 civic organizations, 33–34

Index civil rights, 59, 146 civil society organizations, 34 civil wars, 93–94, 163 Clemenceau, Georges, 7 collapsing countries/societies, 163–64 Collier, Paul, 93–97 colonialism, 18, 57, 59, 80, 147 colonialization, 59 color coding hook, 123–24 commercial art, 6–7 commercialization/commodification of culture, 141–42 Committee on Development and Intellectual Property (CDIP), 26 common law countries, 9–10 Common Sense Media, 116 communication in art and prejudice, 35–37 communism, 25, 66, 97, 102–3, 163, 173, 180, 185 community art education programs, 187 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), 18 compulsive gaming, 114 compulsory licensing, 183 Conrad, Joseph, 173 conscious consideration in art, 22 consumer concerns in developed countries, 153–54, 158–60 in developing countries, 162 in middle-income countries, 156, 161 voluntarily pay for content, 172–73 consumerism, 92, 106–25, 163 content concerns artist concerns in copyright reduction, 148–49 cross-border effects of copyright, 146–48 high-production-value content, 132–33 in middle-income countries, 89–90 contract law, 51, 128 convergence theory, 50 Conway, Danielle, 141–43 Coombe, Rosemary, 105 Copyright Act (1790), 16 copyright corvées, 185 copyright-free clearinghouse, 182–83 copyright in developed countries artist concerns, 152–54, 158–60 community art education programs, 187 consumer concerns, 153–54, 158–60 copyright protection in, 6–7, 41–42, 48–49, 107 copyright reform in, 154–59, 185–88 cross-border effects and copyright reform, 154–59 extreme copyright in, 72, 158–60 governmental art grants, 187–88 introduction to, 6–7

197

liberal values through art, 62 production policies by general public in, 185–88 reduction in transitioning countries, 172–75 reduction of, 24–25, 45–47, 147 sponsorship of rich country art viewings in developing countries, 181–82 strengthening the commons, 186 summary of, 189–92 totalitarianism in, 157–58 copyright in developing countries artist concerns, 148–49, 154–56, 161 Big Copyright in, 25, 47–52 caveats to, 44–45 consumer concerns, 162 copyright protection in, 24, 41, 58, 63, 169 copyright reform in, 153–54 corruption in, 25, 34, 47, 51 cross-border effects of, 146–55, 159–62 cultural imperialism, 58–60 cultural relativism, 52–56 economic development and capitalism, 56–58 education and art, 37–38 education entertainment, 28–32 extreme copyright in, 18, 24, 41, 63, 128, 154–55, 161, 177–78 free distribution of celebrity films, 184 human rights in, 3, 47, 147 idea creation, 39–40 impact, 63–64 influence on citizens, 154–55 intellectual property laws, 25–28 introduction to, 2–4 piracy concerns, 40–42 political capital, 101 possible concerns, 64 prejudice and art, 35–37 proposals to increase international art distribution to, 180–85 reduction of, 24–25, 100, 162–63 sequencing release of artwork, 42–44 tyranny and art, 38–39 unauthorized copying of works in, 159 value of art exposure, 32–35 copyright in middle-income countries artist concerns, 156, 161 artwork from, 45 caveats, 90–92 consumer concerns, 156, 161 copyright protection in, 5, 170, 175 copyright reform in, 152 corporate entertainment, 87–90 cultivating creative environments in, 149–50 education, 4, 73

198

Index

copyright in middle-income countries (cont.) effect on citizens, 152–53 ethnic diversity, 93–97 extreme copyright in, 63, 72–73, 146, 151 historical censorship, 67–70 inclusiveness and, 75–78, 84–87, 100–1 internet access, 178 introduction to, 4–6, 65–67 ironies of, 70–73 liberal values through art, 62 literary examples, 80–84 mainstream entertainment from, 42 moderate copyright, 73–75 nationalism and, 75–78 paying for art, 170–72 post-nation-state world, 78–80 prejudice reduction, 84–87 privileges versus, 69–72 reduction needs of, 145–46 solidarity strategies beyond, 97–100 summary of, 189 survival of cultural traditions, 92–93 tailoring content, 89–90 totalitarianism in, 101–4 copyright in rich countries corporate art impact on, 126–30 creativity importance, 137–41 cross-border effects of, 146–54 effects of decreasing, 126–34 introduction to, 105–6 methods of reduction, 136–37 noncorporate art impact on, 130–32 overconsumption and, 106–25 quality of art, 134 reduction in consumption, 132–34 reduction of, 162–63 refining collective stance, 134–36 copyright infringement penalties, 19–20 copyright law in developed countries, 189–90 in developing countries, 3 economic classifications in copyright regimes, 166–70 exemptions, 21–22 global legislation and, 14 introduction to, 1 in middle-income countries, 4–5 societal culture/needs, 7–8 copyright protections. See also global copyright problems benefits of, 130–31 on corporate works, 191 decrease in, 4, 126–30, 132, 135–37, 145–64 in developed countries, 6–7, 41–42, 48–49, 107

in developing countries, 24, 41, 58, 63, 169 doctrine of aesthetic nondiscrimination, 177 expansion of, 13–14 extent of, 16–21, 89, 91 impact on art/artists, 6–7, 10, 13, 22, 72, 164–66 in middle-income countries, 5, 170, 175 registration for, 17 copyright reform civil war and, 163 in developed countries, 154–59, 185–88 in developing countries, 153–54 domestic benefits of, 145 economic impact of, 129–30 entertainment corporations and, 118, 133–35 human willpower and, 125 impact on art/artists, 131–32 importance of, 20, 32 in middle-income countries, 152 overconsumption and, 137 unauthorized access and, 159 copyright regimes. See also cross-border effects of copyright citizen respect for, 170 collapsing countries/societies, 163–64 doctrine of aesthetic nondiscrimination, 177 economic classifications, 166–70 fairness to artists, 164–66 general scenarios of, 145–64 interactions among, 146 introduction to, 144–45 potential objections to, 164–78 practicability and corporate resistance, 175–76 tailoring copyright to, 178 Copyright Term Extension Act, 128 copyright violation penalties, 72 corporate art impact, 126–30 corporate capture, 10–13 corporate entertainment, 87–90, 133 corporate-level budgets, 72 corporate lobbying, 10, 12–13 corporate resistance, 175–76 corruption anticorruption efforts, 3, 77, 102 in developing countries, 25, 34, 47, 51 in middle-income countries, 77 country-specific unity building, 153 Cover, Robert, 80 Creative Commons, 11, 26, 182–83, 186 creative environments in middle-income countries, 149–50 creativity importance, 22, 137–41 critical legal studies, 166 cross-border effects of copyright content concerns, 146–48

Index in developed countries, 154–59 in developing countries, 146–55, 159–62 in rich and poor countries, 146–54 Csikszentmihalyi, Mihaly, 124, 126, 136 Cuba, 102–3 cultural colonialism, 147 cultural criticism, 65 cultural hegemony, 59–60 cultural imperialism, 58–60 cultural relativism, 52–56, 60 Cutting, James, 122 Czechoslovakia , former, 163 Darger, Henry, 173 Darnton, Robert, 65–66, 68 Davis, John W., 9 de Malesherbes, Chrétien-Guillaume de Lamoignon, 71–72 de San Martín, José, 67–87 Decline and Fall (Waugh), 139 demand-side solutions, 125 Demick, Barbara, 39 democracy artistic benefit, 46 communication and, 135 copyright impact on, 101–2 human rights and, 3 idea creation and, 40 Deng, Francis, 93 Dennis, John, 107 dependency theory, 57, 167 developed countries. See copyright in developed countries developing countries. See copyright in developing countries Díaz-Canel, Miguel, 102–3 Dickens, Charles, 81 dictators, 39 differentiating artwork, 182 digital device addiction, 113, 116 digital lending libraries, 184 Dillard-Wright, David B., 118, 124 diplomatic immunity, 172 Direction de la librairie, 68 discrimination, 36, 100 disincentives against expression, 20 disintegration of nations, 79 Disney corporation, 11, 108, 149 disposable income, 74, 159 dissemination of international artwork, 61 distribution increases in art, 2 diversity benefits, 153, 165 divisive nationalism, 179 Doctorow, Cory, 12–13

199

doctrine of aesthetic nondiscrimination, 177 domestic artwork, 2, 39, 103, 148–49 dubbing programs, 183 Duryea, Suzanne, 31 Easterly, William, 40 economic development, 56–58 economic growth, 73–74, 94, 101–2, 129–30 economic theory, 97 education aesthetic education, 32 art in developing countries, 37–38 community art education programs, 187 in developing countries, 146 ethnic diversity and, 98–99 formal education, 33 Japanese education on diversity, 98–99 in middle-income countries, 4, 73 universal education, 73 education entertainment, 28–32 Einstein, Albert, 76 Ekeinde, Omotola, 88 electoral competition, 94 electroencephalography (EEG), 120 Eliot, T.S., 173 elitism, 173 email protection, 21 Emergency Plan for AIDS Relief and Department of Defense program, 46 Emerson, Ralph Waldo, 76 EmSense, 120 Encyclopédie (Diderot), 71–72 energy systems hook, 123 enlightened anarchy, 78 entertainment corporations, 11–12, 108, 118, 162, 165–66 equality and collapsing countries, 163 Esquivel, Adolfo Pérez, 81 eSwatini, 48 ethnic diversity, 93–97 ethnic dominance, 94 ethnic identity, 95–96, 99 Etteh, Patricia, 96 European Union Copyright Directive, 12–13 export market size, 149 extreme copyright art and, 20, 174–75, 193 Big copyright and, 175 in developed countries, 72, 158–60 in developing countries, 18, 24, 41, 63, 128, 154–55, 161, 177–78 freedom and, 20, 103 impact of, 8, 10, 19–20, 125, 139, 144, 179–80 indigenous art and, 141

200

Index

extreme copyright (cont.) in middle-income countries, 63, 72–73, 146, 151 opposition to, 11, 132 overconsumption and, 111, 174 Ezekwesili, Oby, 95 Facebook, 108 factor-price equalization, 50 Fanon, Frantz, 80–81 fascism, 173 Federal Advisory Committee Act, 15 Feldman, Morton, 173 female literacy rates, 34–35 fertility of telenovelas of Brazil, 31 fertility rates, 74 feudalism, 70 Filipino Nationalism, 82–83 film viewers, 120–22 fine art collectors, 154 Fisher, William, 21 flaunt your wealth challenge, 109 Foddy, Bennett, 124 for-profit enterprises, 41 foreign aid, 165 formal education, 33 France, 69–72 France, Paul, 187 Franssen, Catherine, 123 free distribution of celebrity films to poor countries, 184 free trade, 15, 18, 60, 62 freedom art and, 1, 36 beliefs in, 62, 148–49 collapsing countries and, 163 extreme copyright and, 103 global development of, 179 prohibiting expression, 164–65 Freedom House, 38 freedom of expression, 44, 55, 164–65 French Revolution, 71–72 friendly fan competitions, 182 Friends (TV show), 43 Fukushima disaster, 162 functional magnetic resonance imaging (fMRI), 119–20 gaming addiction/disorder, 114, 117, 123 gender equality, 100 gender norms, 31 General Agreement on Tariffs and Trade (GATT), 17 Geneva Declaration on the Future of the World Intellectual Property Organization, 26

genocide, 84–86 Gerbier, P. J. B., 65–66 Gervais, Daniel, 17 Ghazali, Kamila, 98 Gibson, Caitlin, 114 Githongo, John, 34 global copyright problems corporate capture, 10–13 extreme international copyright, 16–21 introduction to, 9–10 legislative policies, 13–16 scope of protection, 21–23 global monoculture, 59 Glorious Revolution, 68 Godefroy, Denys, 70 Goldstein, Paul, 13, 18 Gollywood, 74 government-created artwork, 63 governmental art grants, 187–88 graduated nuances of legality, 69 gray market goods, 160 Great Depression, 173 great firewall of China, 180 gross domestic product (GDP), 145 gross national income (GNI), 167–68 guardianship system in Saudi Arabia, 53 Guild of Stationers, 67–68 Hall, Stephen, 120 Hargreaves, Ian, 12 harmonious global anarchy, 79 HarperCollins, 63 Harry, Prince, 116 Hasson, Uri, 120 health care in middle-income countries, 4 Hegel, Friedrich, 179 High Enlightenment works, 65–66, 70–73, 91 High Human Development, 167 High-Income Economies, 167 high-production-value entertainment, 151 Hirst, Damien, 173 historical censorship, 67–70 Hollywood. See Big Copyright Holmes, Oliver Wendell, Jr., 62 homegrown artists, 93 honjok (alone tribe) culture of South Korea, 74 hook techniques, 120–23 Hui, Kai-Lung, 127–28 human rights art and, 34 autonomy in, 55 beliefs in, 5, 28–32, 61, 65–67, 100, 175 child abuse in global cultures, 53 cultural relativism and, 52–56

Index defense of, 8 in developing countries, 3, 47, 147 in middle-income countries, 5, 100–1 neglect in developing countries, 42 oppression and, 59 politicization fears, 44 universality of, 53–54 human rights abuses, 192 Human Rights Foundation, 39 humanism and beliefs, 33 hypnosis, 120 iDE (International Development Enterprises), 182 idea creation, 35, 39–40 illiberal values, 42 imperialism, 79 inclusiveness, 75–78, 84–90, 100–1 indigenous peoples, 141–43 individualism and autonomy, 55 infinite format games, 123–24 intellectual property (IP) protections in developing countries, 2–3, 25–28 global measures, 17 indigenous peoples and, 141–43 intelligence quotient (IQ) and consumerism, 113 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), 26 international art/artwork altruism in, 58 in developing countries, 37, 46 differing interpretations, 61–62 harmful messages in, 60–61 introduction to, 2, 32–35 proposals to increase distribution to poor countries, 180–85 International Classification of Diseases (ICD), 116 international copyright, 16–21. See also global copyright problems internet access to, 40, 43 addiction to, 115–17 in developing countries, 155 entertainment and, 6 great firewall of China, 180 overview, 177–78 Ives, Charles, 173 Iyengar, Sheena, 152–53 Jackson, Shirley, 173 Japanese education on diversity, 98–99 Jasarevic, Tarik, 117 Jennings, Colin, 96 Jensen, Robert, 2, 29–30, 84

Johnson, Brandon, 103 Johnson, Dwayne, 130 Journal of Clinical Sleep Medicine, 112 Julie (Rousseau), 69 Kaepernick, Colin, 90 Kafka, Franz, 173 Kaldor-Hicks version of efficiency, 51 Kaminski, Margot, 15–16 Kandinsky, Wassily, 75–76 Kant, Immanuel, 79 Kardaras, Nicholas, 113, 117 Kartodikromo, Marco, 83–84 Kirsch, Adam, 173 Klee, Paul, 75–76 Kubey, Robert, 126, 136 Kudamatsu, Masayuki, 97 Kundera, Milan, 106 La Ferrara, Eliana, 31, 96–97 LaBenevolencija nonprofit, 84–85 Landes, David S., 58 Landes, William, 176 Least Developed Countries, 167 Lee, Timothy, 19 legal briefs, 71 legal pluralism, 143 leisure time, 74, 84, 133, 191 Lenoir, J.-C.-P., 70–73 Lepper, Mark, 152–53 Lessig, Lawrence, 19–20 LGBT+ community, 35, 43, 59, 100 liberal values through art, 34–35, 38, 44, 62 lieutenance-générale de police, 68 Lipton, Martin, 48–49 literacy rates, 34–35, 98 Litman, Jessica, 13–14, 20–21 Longfellow, Henry Wadsworth, 137 Louis XVI, King, 70–73 Low Enlightenment works, 65–66, 70–73, 91 low human development, 167 Low-Income Economies, 167 Lower-Middle-Income Economies, 167 Lowery, George, 122 ludic loop tool, 124 macro economists, 43 Madigan, Sheri, 113 magnetoencephalography (MEG), 120 Mahfouz, Naquib, 64 Malaysia, 98 male literacy rates, 35 Malraux, André, 138 Marr, Johnny, 171

201

202

Index

Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 26 Marx, Karl, 103 Marxism/Marxist theory, 32 mass entertainment, 157–58 mass media, 29, 31, 56, 88 materialist philosophical treatises, 65 mauvais livres, 68 Maza, Sarah, 71 Mbarbk, Oucha, 32 McCarthy, Rory, 63 McDermott, Nick, 112 McLuhan, Marshall, 45 media-dark areas, 30, 147, 154, 178 media-light areas, 154 Medium Human Development, 167 middle-income countries. See copyright in middleincome countries Miguel, Edward, 97 Miller, Greg, 121 mimicking technique, 122 Minaj, Nicki, 108 MindSign, 119 minimal group paradigm, 75 minimalism, 110 Minow, Newton N., 110–11 Mistress of a Married Man (Sy), 5 moderate copyright, 73–75 Modest Mouse (music band), 171 monopolistic protection, 7 mood changes and consumerism, 113 morality and copyright, 36, 48–49, 93–97 Morris, William, 138 Morrison, Toni, 173 Motion Picture Association of America (MPAA), 11 Motlanthe, Kgalema, 50–51 myths and art, 37 Nadu, Tamil, 30 nation building, 76, 78 nation unity, 80–87, 97 National Association of Broadcasters, 110 national identity, 2, 5, 75, 87–88, 92, 153 National Institute for the Child, Angola, 53 national security copyright taskforce, 184 nationalism, 75–78, 91, 179 Nazi propaganda, 158 negative liberty, 135 Neruda, Pablo, 78, 173 Netflix, 132 neurocinema, 119 NeuroFocus, 119 Never Forget Class Struggle slogan, 62

New York Times, 118 Nigeria, 50, 77–78 Nike company, 90 Nollywood, 74, 88, 147, 151, 176 non-copyright-focused companies, 49–50 non-governmental organizations (NGOs), 178 non-liberal cultural beliefs, 45 noncorporate art, 130–32, 147 North Korea, 39 not-for-profit enterprises, 41 Nyerere, Julius, 97, 99 objective legal scale, 67 Office of the United States Trade Representative (USTR), 14–16 Oi, Mariko, 99 Okonjo-Iweala, Ngozi, 34, 77 Olson, Mancur, 179 oppression concerns, 37–38, 59 orienting response, 121 Orwell, George, 138 Oster, Emily, 2, 29–30, 84 Otero Alcántara, Luis Manuel, 103 overconsumption addiction to, 115–17 of artwork, 75 of commercial art, 6 concerns about, 118–24 extreme copyright and, 111, 174 freedom of expression and, 164–65 getting people to care about, 109–10 harm from, 110–15 impact of, 176 passive overconsumption, 189 reduction in, 132–34 in rich countries, 106–25 role of excessive copyright in, 125 Paluck, Elizabeth Levy, 31, 84–86 Pandika, Melissa, 112 Panera experiment, 171 Panigrahi, Suraj, 121 Park, Alice, 112 Participatory Poverty Assessments (PPAs), 57–58 passive overconsumption, 189 Pay what you can basis, 171 paying for art in middle-income countries, 170–72 Paz, Octavio, 173 Pearlman, Laurie Anne, 86 personhood, defined, 54 Picasso, Pablo, 87 Piercy, Marge, 138 piracy concerns, 40–42, 154, 170 pluralistic intellectual property regimes, 7

Index Png, I.P.L., 127–28 political beliefs, 80 political capital, 101 political elite, 25, 28 political integration, 79 Poltrack, Dave, 6 poor countries. See copyright in developing countries Popular Front, 173 popular media, 65 positive propaganda, 99 positron emission tomography (PET), 120 Posner, Richard, 176 post-nation-state world, 78–80 post-traumatic stress disorder, 140 poverty concerns, 40, 58 Powdermaker, Hortense, 42 power, defined, 10 practicability and corporate resistance, 175–76 prejudice and copyright, 35–37, 84–87 principle law, 9 privileges vs. copyright laws, 69–72 profit maximization argument, 175 profit motives in corporate entertainment, 88 progressive artwork, 27, 31–33 propaganda through art, 62–63 Proust, Mercel, 81 public service announcements, 28 purchasing power parity (PPP), 168 Putnam, Robert, 74 Qin, Amy, 158 Radio Free Europe, 184 radio/radio broadcasts, 32–33 Radiohead (music band), 171 Randall, Kevin, 119 reciprocal non-copyright agreements, 185 Recording Industry Association of America (RIAA), 11 Rede Globo channel, 31 regulatory paraphrasing, 16 reinvigorating school art programs, 186–87 religious beliefs, 93 religious satire, 65 Ribadu, Nuhu, 50 rich countries. See copyright in rich countries Richelieu, Cardinal, 24 risk aversion, 41 Rivera, Diego, 174 Rizal, José, 82–83 Rogeberg, Ole, 113 Roosevelt, Theodore, 76 Rousseau, Jean-Jacques, 7–8

203

Rousseaus du ruisseau (Rousseaus of the gutter), 65 Rowling, J.K., 108–9 Rowntree, David, 127 rule of law, 47, 67 rural Indian cable TV, 2 Ruskin, John, 138 Ryman, Robert, 173 Saudi Arabia, 53 Schiller, Friedrich, 32 school art programs, 186–87 scribal culture, 192–93 self-confidence, 145 self-determination, 143 self-made individuals, 164 Semarang Hitam (Black Semarang) (Kartodikromo), 83–84 Sembène, Ousmane, 1 sequencing release of artwork, 42–44 Sganga, Caterina, 27 Shaver, Lea, 27 Shostakovich, Dmitri, 157 slave trade, 57 Smidts, Ale, 119 social capital, 31 social criticism, 65 social justice, 2–3, 21, 37, 143 social learning theory, 28 social media, 6, 111–12, 190–91 social reform, 86 social safety in middle-income countries, 4 social well-being, 32 socialism, 76 societal culture/needs, 7–8 software protection, 21 solidarity strategies, 77, 97–100 Solzhenitsyn, Alexander I., 66 Sonny Bono Copyright Term Extension Act, 127 South African Defense Forces, 46 South Korea, 74 Special 301 Report, 16 Special Representative for Trade Negotiations, 14 Staub, Ervin, 86 Stearns, Peter, 92, 106–8 Steinbeck, John, 81 Steiner, George, 91 Stevens, Wallace, 173 Stiglic, Neza, 112–13 Stiglitz, Joseph, 25 Stockholm Protocol Regarding Developing Countries, 19 Stoppard, Tom, 138–39 subsidy tools to disseminate artwork, 185 subtitle programs, 183

204 sui generis legal system, 142–43 Sumbelelo, Emilio, 53 superstitions and art, 37 supply-side solutions, 125 survival of cultural traditions, 92–93 Susco, Stephen, 121 Sy, Kalista, 5 systemic corruption, 3 tailoring copyright, 178 Tanzania, 97, 99–100 telenovelas of Brazil, 31 television background television exposure, 113 binge watching, 111, 116 in developing countries, 32–35 tension in copyright law, 4–5 territoriality principle, 150 them-versus-us mentality, 174 Thomas, Dylan, 138 three-step test, 17 Total Audience Report Q1 (2019), 111 totalitarianism, 101–4, 157–58 Toynbee, Arnold J., 91–92 Trade Expansion Act (TEA), 14 Trade-Related Aspects of Intellectual Property Rights (TRIPS), 16–18 traditional knowledge (TK), 26 Trans-Pacific Partnership (TPP), 15 transcranial magnetic stimulation (TMS), 120 transitioning copyright artistic production policies by general public, 185–88 bottom-up campaigns, 182 compulsory licensing, 183 copyright corvées, 185 copyright-free clearinghouse, 182–83 in developing countries, 172–75 differentiating artwork, 182 digital lending libraries, 184 expanded subtitles and dubbing, 183 free distribution of celebrity films to poor countries, 184 friendly fan competitions, 182 introduction to, 179–80 national security copyright taskforce, 184 proposals to increase international art distribution to poor countries, 180–85 reciprocal non-copyright agreements, 185 subsidy tools to disseminate artwork, 185 transparency and art, 37, 46 Treaty on Access to Knowledge and the Adelphi Charter on Creativity, Innovation and Intellectual Property, 26

Index Trilling, Lionel, 173–74 Trollope, Anthony, 173 Trump, Donald, 89 Tuell, Chris, 117 Twenge, Jean M., 114 tyranny, 35, 38–39 U.N. Human Development Index, 167 unalienable protections, 59 unauthorized copying of works, 159 uncensored works, 71 underconsumption of artwork, 75 United Kingdom’s Gowers Review on Intellectual Property, 127 United Nations Committee for Development Policy, 167 United Nations World Intellectual Property Organization (WIPO), 15 Universal Copyright Convention, 18 universal education, 73 universality of human rights, 53–54 Upper-Middle-Income Economies, 167 U.S. copyright policy, 107. See also Big Copyright (Hollywood) U.S. entertainment corporations, 152 U.S. IP law, 15 utopian visions, 65 Valenti, Jack, 12 value of art exposure, 32–35 Vance, Erik, 115 Vanity Fair, 12 variable-ratio schedule, 123 Velten technique, 120 Veronica Mars (TV show), 34 Very High Human Development, 167 video game overconsumption, 117, 123–24, 128 virtual reality (VR), 189–92 Voltaire, 91, 98 voluntarily pay for content, 172–73 Vonnegut, Kurt, 139–41 Wantchekon, Leonard, 95–96 Waugh, Evelyn, 139 wealth redistribution, 165 Western culture/Westernization, 58–59, 107 Whybrow, Peter, 117 Williams, William Carlos, 173 WIPO Copyright Treaty (WCT), 18–19, 26–27 WIPO Performances and Phonograms Treaty (WPPT), 18 women’s equality/status, 30, 92, 101

Index Woods, Michele, 41 working mothers, 35 World Bank, 28–29, 57–58, 88, 167 World Health Organization (WHO), 116 World Trade Organization (WTO), 17 The Wretched of the Earth (Fanon), 80–81 Wu, Tim, 105, 125

The Yacoubian Building (Al Aswany), 63 You Tube addiction, 116 Young, Kimberely, 115 Zaslav, David, 130 zero waste goals, 109 Zola, Emile, 115

205