Note de lecture : Copyright Unbalanced

Note de lecture de l'ouvrage Copyright Unbalanced: From Incentive to Excess, Tom W. Bell, Eli Dourado, Timothy B. Lee, Christina Mulligan, David G. Post, Patrick Ruffini, Reihan Salam, dir. Jerry Brito, Mercatus Center at George Mason University, 2012, ISBN 978-0983607755.

En raison du caractère très US-centré de l'ouvrage, ma critique est en anglais. Pour ceux que cela rebute, voici un shorter : bon bouquin, qui illustre bien la manière dont le régime de propriété intellectuelle aux États-Unis et l'usage de marteaux-pilons judiciaires pour le faire respecter sont devenus proprement terrifiants. Dommage qu'il soit couché en termes inutilement partisans (on tape sur les Démocrates pour montrer qu'on est un bon Républicain), et complètement US-centré, au point de faire un certain nombre de recommandations ridicules, traitant les US comme un pur marché domestique, n'important aucun bien ou service culturel.

This book is a remarkable collection of essays on the topic of copyright, or rather the sheer madness the US copyright framework has become. Having somewhat studied the question as a scholar, I was familiar with most of the economic arguments against the current copyright regime. I did found them in the book, accurately represented in understandable terms. What I was less familiar with was the legal aspect of it. What I read in this book appalled me. I did know that the US copyright enforcement regime was dysfunctional. I was not aware, however, that a mere suspicion of copyright infringement could get you detained and your property seized without any meaningful right to defend yourself. And that’s the bright side of it, if you happen to be a US citizen. This book is thus a thoroughly researched, reasonable and articulate plea for a much-needed, in-depth reform of US copyright law – and why SOPA should never have been considered in the first place. I would recommend it as a must-read to any US citizen, for some fundamental elements of the US system, such as freedom of speech, are indeed badly hurt by the copyright enforcement.

Did I say US citizen? I did, and that is this book’s weak point. It deals only with the US and on purely US terms. While several essays rightly underscore that in an interconnected world, geographical frontiers and jurisdiction limitation loose most of their meaning, a focus on the US system would have been understandable. Comparative law is a tricky business, especially when it comes to copyright and the difference between Anglo-Saxon Copyright and Continental Droit d’Auteur with its moral rights part. I could also have borne with the incessant references to the Founders and the exceptional quality of the US system. It is the way these things work. What I felt superfluous however was that perfectly valid, pragmatic and potentially consensual points are hammered down with pointless Democrat-bashing. Granted, DMCA was passed by a Democrat administration, but PRO-IP was signed into law by George W. Bush. The idea that Hollywood-backed Democrats are the main culprits of the absurd growth of copyright enforcement strikes me as rather shabby. Form what I saw it is a continuous trend that enjoys wide bipartisan support. All the copyright extension laws did past muster with a nearly-unanimous vote. If that means that in the current climate, you cannot treat such an important topic without targeting a specific political audience (conservative and libertarian), and doing so by bashing a straw man, the US democracy is in a sad shape indeed.

Another highly debatable part of this book is the last chapter. I would say that while making some interesting (and in fact well-known) points, it embodied part of what makes even moderate conservatives the laughing stock of the rest of the world. I read this chapter as absurd and inconsistent. Absurdity starts when the author advocates a unilateral withdrawal of the US from the Berne Convention, arguing that only the domestic market matters. Reality check: is the author aware that a large part of US copyright-protected products earn more abroad than in the domestic market, and would not be profitable without an easy access to that market? Moreover, on the same chapter, the author (rightly) says that consumer’s interest should be paramount. I fail to see how withdrawing access to all the cultural goods and services produced abroad could do anything but harm the US consumer. This internally inconsistent and inconsistent with the point repeatedly made by other authors in this book, that with the Internet, borders should not matter.

On the whole, this is a very good collection of essays, especially if you live in the US and lean Libertarian or Conservative. It is regrettable, however, that the book should be so full of uselessly partisan arguments and that it occasionally veers in ridiculous US exceptionallism when dealing with a topic that matters for an interconnedted world.

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