May 27, 2017

How to Talk to Lawmakers | Peer to Peer Review

A quick search of the Libraries’ catalog at my university shows that we have lots of books about how to talk with different groups. The target audiences for these improved conversations include children, liberals, teens, Christians, senior parents, and physicians. We even have a book (which I haven’t read) about how to talk about books you haven’t read; surely a well-developed skill amongst librarians. But it seems to me that in our current environment, there is another skill that librarians need to cultivate—how to talk to policy makers.

So, here are three rules for talking with lawmakers and others responsible for public policy; each is illustrated with lessons from the copyright wars, since that is the area I know best.

Start from Scratch

First, do not assume that the people to whom you must make your case know all of the background facts and share your fundamental assumptions. The writer Flannery O’Connor once wrote about the bizarre imagery she used in her stories that, “I use the grotesque the way I do because people are deaf and dumb and need help to see and hear.” It is frequently the case that policy makers need help to see and hear things that seem obvious to most of the rest of us who deal regularly with these matters. For example, that the purpose of copyright is to provide an incentive to create, not to support a particular commercial business model. Or that the copyright monopoly must be limited. Both of these statements come straight from the Constitutional provision that authorizes Congress to enact copyright laws, but that does not mean that even Congresspersons are aware of them. Congresswoman Mary Bono famously said on the floor of the House that she thought copyright should last forever; one of her aides had to explain the problem with that sentiment.

In the recent dust-up over the memo about copyright reform written by a staffer for the Republican Study Committee, it is telling that one of the first tasks that the author felt he needed to accomplish was to remind his Congressional audience about the incentive purpose of the law. We simply cannot assume that the people who are charged with determining the direction of our copyright laws know even the most basic facts about those laws; they need their constituents, especially their constituents who happen to be librarians, to educate them.

This education, like all good education, often needs to be tailored in a way that is appetizing for the particular learner. As Virginia Postrel wrote in this column for Bloomberg News, the RSC memo could have been especially compelling for conservative Republicans (had it not been withdrawn) because it was making a free-market case for copyright reform. For some policy-makers we might want to emphasis the “social good” aspect of the argument for reform, while for others the free-market and overall “good for economic growth” is the more productive approach. There is nothing deceptive here; both storylines are true enough, they simply appeal to different sets of values.

Use Your Numbers

The second rule about talking with policy makers is to have data at hand to make your case. A recent international survey on ideas about intellectual property reported several interesting findings. One was that the developed North is beginning to catch up to the developing South in its awareness of the need for copyright reform. Another was that policy makers tend to believe statistics and economic data, even if that data is not well-founded. As Professor Jean-Frederic Morin, who conducted the survey, said, this is a troubling result for two reasons. First, few policy makers actually have the training to correctly interpret economic data. Second, much of the data they are being presented with in the intellectual property arena is “junk.” But for all that, we need to be armed with numbers when we want to talk with policy makers about copyright.

The numbers we can present do not have to be complex; it might be better, in fact, if they are not. In her Bloomberg article, for example, Postrel focuses on a single case in order to make her argument that the term of copyright protection has far exceeded any rational relationship to an incentive for creativity. She looks at Robert Frost’s poem “Stopping by Woods on a Snowy Evening” and observes that, when it was written, copyright lasted for 56 years, if it was renewed. That was sufficient, apparently, to motivate Frost to write the poem, if copyright even entered into his thinking. But the term was extended, retroactively, by 42 years, and that extension did not happen until after Frost’s death. Those 42 years—Frost’s poem will be protected until 2018, 95 years after its original publication—had no value as an incentive for creation; they amount simply to a tax on culture that the public pays, and which did not benefit Frost at all. This kind of case study, with actual numbers attached, can be very persuasive.

We know that the recording and movie industries approach legislators with statistics designed to make their eyes pop and their hearts race—hundreds of billions of dollars and hundreds of thousands of jobs lost each year because of piracy. We also know that those figures are bogus, thanks to a study done by the Government Accountability Office. Yet according to Morin’s survey, lawmakers are likely to believe them because they are “hard” economic data. So it is extremely important that Congress hear both sides of the story, including other studies that show that fair use also generates a sizable amount of money for the U.S. economy. Likewise, we can cite the research done by Cambridge economist Rufus Pollock into the optimal term of copyright to bolster our argument that the current term represents an unjustifiable tax on the public (he found that 15 years was probably sufficient to create the needed incentive for creativity). For better or for worse, numbers help us make our case, both on the specific level, as with Frost’s incentive, and from the large-scale economic perspective.

Focus on Outcomes

Finally, the third rule for talking about copyright with policy makers is to be willing to challenge assumptions and to talk about actual impact. One of the things we often hear, for example, is that creative industries cannot exist, much less thrive, without strong copyright protection. Of course, since copyright has only existed for about three hundred years, and human creativity (and even publishing) is much older than that, this one should be easy to undermine. But it is more effective to cite current examples of creative industries that thrive without copyright, and even places where unauthorized copying has become part of the industry itself, and a source of profit for the creators. In The Knockoff Economy, from Oxford University Press, this is exactly what Professors Kal Raustiala and Christopher Sprigman do, examining a diverse set of industries, including fashion and restaurants, which do not “benefit” from copyright and have not only been able to grow and thrive, but have even made the “knockoffs” into a part of their economic structure. These sorts of examples can show that the actual impact of copyright and copyright reform might well be different than most lawmakers assume.

Another area in which this kind of argument is important is when talking about compulsory licensing. Policy makers around the world, and especially those enamored with the “three step test” from the Berne Convention, often see compulsory licensing as a solution to many copyright problems—just pay a small fee for specific uses and everyone wins, the user can move forward and the copyright owner gets fair compensation. Here again, actual impact is a cure for rosy assumption. In this short article on SSRN, lawyer and library advocate effectively debunks the assumption that collective licenses and the collective rights organizations (like ASCAP and the Copyright Clearance Center) that go with them can make our system more efficient. Instead, Band catalogs an amazing story of corruption and failure that has plagued CROs around the world. Far from making the copyright system more efficient, the actual impact of reliance on collective rights licensing has been a sorry tale in which few funds are ever distributed to creators and massive overheads (especially executive salaries) eat up the majority of the money collected. This is the kind of information we need to upset the cozy assumption about licensing that is common amongst policy makers.

If we keep these three rules in mind, we can approach the conversations about copyright policy that are so desperately needed with more confidence and more hope of success.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s ( principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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  1. Thanks for this thoughtful and interesting piece and for citing my article. Readers may be interested in some further information on the Frost’s estate’s aggressive enforcement of its copyright:

    Another point, which is worth mentioning, is that there are many professional writers, myself included, who are not represented by groups like the Authors Guild that purport to speak for professionals on these issues.

    Here’s a more esoteric example than Frost’s poem: There is a scene in the 1930 Joan Crawford-Clark Gable movie Possessed that I describe in my forthcoming book The Power of Glamour. I would like to reprint a still or series of stills from that scene. But the studio didn’t include anything from that scene in its original publicity kits, so neither stock houses nor the studio that now owns the copyright can supply something easily. It would be fair use to take a screen grab but my publisher, Simon & Schuster, would never permit that without written permission and the studio won’t even respond to my requests. It’s not worth their time. So everybody loses.