Vol. 15 No.1 (January 2005), pp.90-93

PROMISES TO KEEP. TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT, by William W. Fisher III.   Stanford: Stanford University Press, 2004.  352pp.  Cloth.  $29.95. ISBN: 0804750130.

Reviewed by Irini Stamatoudi, LL.M, Ph.D, Athens, Greece.  Email: stamatoudi@syrigos.gr .

Amongst other activities, the digital revolution has mostly affected communication. And, since copyright has a lot to do with communication, constituting the basic medium for the protection of content, digitization also affects copyright to a large extent.

Up to now there are two main tendencies in the area of copyright and specifically on how copyright has absorbed the new developments in the digital world. One view holds that nothing has changed in essence. The issues arising and the problems posed are the same as they were in the analogue world. It is only the medium, and perhaps the frequency these problems arise, that have changed. Therefore no major legislation is required. It is only the interpretation of the current legislative structures that needs to be adapted to the new reality. The other view holds, to the contrary, that digitization reshapes copyright and generates the need for general face-lift in order for it to work effectively, become more social oriented and to respond to the challenges of the new era.

William Fisher takes the second view as the starting point in his book. One could argue that this second view is also more consistent with the common law approach of copyright, which on the one hand approaches copyright more as an entrepreneurial right while, on the other hand, placing much importance on the moral rights of authors, as opposed to the continental approach which sets first the rights of authors from a moral and personality-oriented point of view. The author of this book goes even further than that. He proposes a change in law, which will permit copyright to work as an administration model subject to business rules, thus allowing society to derive most advantages from it, whilst authors may be compensated adequately for their works.

This is not, strictly speaking, a law book. It is rather a book of policy, which concerns all those who are involved in the commercial chain of exploitation of works—creators, collecting societies, consumers, the public, record companies, film producers, as well as government policy makers. It is rather provocative in the sense that it deals with copyright under a new more pragmatic and business-like point of view without necessarily exploring always how traditional concepts and perceptions of copyright can be overcome. This consideration is particularly important given the fact that copyright policy is considered in many countries, as well as in the EU, as a very delicate political issue and a matter of cultural tradition.

This book seems to concentrate on one basic point—how works of the entertainment industry can be more [*91] effectively exploited for benefit by most of the parties involved in the commercial chain, especially authors and consumers. This is done through discussion of three alternative models presented in Chapters 4, 5 and 6.

Chapter 1 offers the general technological background against which copyright norms are tested. It deals with digitization, the communication revolution, the internet, and so on, while at the same time describing the challenges and risks they pose to creators. Chapters 2 and 3 discuss how the entertainment industry was traditionally structured and functioned. It also explores the strengths and weaknesses of the current system and the issue of what has gone wrong so far.

The three alternative legal and business models, which form the essential focus of the book, are the following. The first model takes as a starting point the fact that intellectual property rights should reflect traditional notions of property rights in tangible objects. Chapter 4, which presents this model, first considers the legal principles applying to property rights in tangible objects and then explores how these principles can be applied to copyright, whether the model offers advantages and what these advantages are. Fisher argues that such a model would necessarily entail the reinforcement of copyright against unauthorized copyright and trafficking of works over the Internet. This, however, would create strong oligopolies, which would exploit the works of the authors by their own terms, and although they would offer cheaper entertainment more efficiently, they would artificially keep prices at high levels and would prevent consumers from reshaping or adjusting products to their own needs.

Chapter 5 deals with the second alternative, which takes as its starting point that works constitute a public utility analogous to telephone lines, radio frequencies or roads. Under this approach exploitation of works should be made in such a way that government would play an essential role in distribution, regulation of fees, allotment of income amongst the various players in the chain, and so on. This would, however, entail tight governmental control and would prohibit the public from exploring the potential of creativity further.

Chapter 6 presents, according to Fisher, the best model. In fact it is a model, that transforms the copyright regime into an effective administrative system which comes very close to a form of involuntary license, not in the sense that one is obliged to license her work irrespective of whether she is prepared to do so, but rather in the sense that she is obliged to license it with particular terms regarding subsequent exploitation. According to Fisher, such a system would work as follows:

The owner of a copyright in an audio or video recording who wished to be compensated when it was used by others would register it with the Copyright Office and would receive, in return, a unique file name, which then would be used to track its distribution, consumption, and modification. The government would raise the money necessary to compensate copyright owners through tax. . . . Using techniques pioneered by television rating services and performing rights organizations, a government agency would estimate the frequency [*92] with which each song and film was listened to or watched. The tax revenues would then be distributed to copyright owners in proportion to the rates with which their registered works were being consumed. (p.9)

Fisher contends that such a system would bring with it a number of social advantages, such as consumer convenience, reduced transaction costs, cheap and effective access to works, and the like.

Although this book seems to focus on audio and video records, the analysis is relevant to copyright in general. In addition, the primary focus is directed to the US reality, although the impact of the digital era is felt throughout the world. Fisher is quite bold in what he proposes, especially, if this book is read by a reader on the other side of the Atlantic, and in particular from the continent. According to the continental point of view, copyright is an author’s absolute and exclusive right, deeply linked with his personality and moral interests to his work, offering him the monopoly required in order to control the work and reap the profits from it necessary to create further. Yet, the digital era, which places tremendous importance on data and content, has somehow degraded the notion of work, considering it a form of data and approaching it from a mere economic point of view. Fisher’s model does not sit well with this approach. In fact, from this point of view, authors are deprived of their right to decide whether they want their work to be published or otherwise used, by whom and where, to decide the royalties they receive, and generally to exercise the type of control they wish with regard to its use. One could argue that in the real world it is entrepreneurs who take advantage of works rather than the authors themselves, and authors might, at the end of the day, prefer a model allowing them to receive fair compensation in return. Is this, however, what copyright is all about? Are works nothing more than public utility, which should serve consumers?  Or, do they form part of an author’s personality and warranting special treatment, as has been the case up to now?

Fisher’s model offers a starting point for discussion but leaves open a number of other important issues—e.g., whether any government would be prepared to impose an additional tax upon citizens, whether any person who pays taxes would be prepared to pay an additional levy in order to maintain such a system, whether creators would be prepared to undergo a tight governmental or other control, what would the future of moral rights be, and whether this model should apply to any other copyright work, including the whole of the entertainment industry, and, if not, what makes other copyright works different from songs and films.

This book is one of those books that have been long awaited to broaden the discussion for the future of copyright. It approaches the various problems set by the digital era from a realistic and pragmatic point of view and tries to dispense us from the anchyloses of the past concerning sacred and untouchable rights, as copyright is considered to be in many countries. The most interesting aspect of the book is that it brings to the surface the very practical side of the copyright issue involving business considerations in the solutions it [*93] proposes. It goes back to the foundations and roots of copyright and raises questions as to how policy making should proceed. Fisher starts from the goal and works backwards to the law. In other words, he first explores what we want to achieve and then discusses how we can best achieve it with the help of the law. Policy makers work the other way round. They first explore what they have in terms of legal rules and then try and work their aim out on the basis of the existing legal rules. It would, however, be utopian to allege that the time is ripe for Fisher’s model, especially when the tide both in the US and Europe runs in the opposite direction. 

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© Copyright 2005 by the author, Irini Stamatoudi.