The Creative Rights Act of 2020: Rethinking Copyright for the Future

Technologists distinguish between two types of change: change in degree, and change in kind. The leap from gas-powered cars to hybrid and electric vehicles was an example of change in degree; the car became more energy efficient, but the functionality remained largely the same. Changes in kind can be harder to spot, but consider the recent invention of the driverless car. Clearly, the driverless car is not merely a sleeker upgrade to the existing automotive lineup. Rather, autonomous vehicles will fundamentally alter the nature of human transportation, and thus represent a change in kind.The law tends to be more adaptable to changes in degree than to changes in kind. For instance, as cars become more fuel-efficient – a change in degree – traffic laws remain logical and effective. Far less clear, however, is how existing laws might translate on the driverless roads of the future. And even if old laws can govern in an era of autonomous vehicles, that does not mean that they necessarily should. Many existing traffic laws date back to the 19th century, when horse-drawn carriages dominated the roadways. Consequently, policy makers already anticipate the need for new legislation before driverless cars might be introduced to the public.This paper is premised on the claim that, with the advent of digital media technology and the Internet, lawmakers mistook – and continue to mistake – a change in kind for a change in degree. Digital is not simply the latest in a line of successively more efficient content deployment formats. Nor is the internet merely a faster distribution platform.To be fair, the distinction is easier to recognize with the benefit of decades of hindsight. However, it must by now be clear that the convergence of these technologies arguably represents the most significant change in kind of our time. Yet neither development has apparently merited a bottom-up rethinking of the way the government fulfills its constitutional mandate to protect creative works for the public good. Indeed, the most recent major revision of copyright law was the Copyright Act of 1976.The argument is not that copyright is obsolete. By definition, copyright is a system that protects copies of creative works. The books on the shelf; the artwork on the wall; these are the bread and butter of copyright, for their value resides in the copies themselves. If the copy of the artwork hanging on the wall is worth $100 dollars, then, presumably, two copies of that artwork have a combined value of $200 dollars. In a sense, copyright is fundamentally rooted in a simple principle: double the copies, double the value.Digital media does not conform to this formula. No value is gained in creating two, or two-thousand, identical copies of a digital music file on one's hard drive. And the Internet does not obey the rules of analog distribution platforms.In fact, the Internet is rapidly undermining the relevance of the traditional “distribution” model altogether. Taken together, there are few provisions of copyright law which these technologies do not strain.But this is not a paper about copyright reform. The once chaotic digital world is now rapidly organizing around the demands of the public and institutional actors. Herein lies a small window of opportunity to enact a new framework to complement copyright in the digital realm. A dichotomous regime that accurately reflects the unique and evolving character of the technological landscape might help steer society from its digital adolescence toward an age of creative abundance and economic prosperity.This paper is about the Creative Rights Act of 2020, a legal framework intended to seize this opportunity. Notably, the year attached to this act is not arbitrary. According to a survey conducted by the Pew Research Center, by the year 2020, the world will primarily access applications and content from remote server networks, or the “cloud.” Since the publication of that 2010 study, numerous cloud content services have come to market, suggesting an even faster transition to the cloud-based future.Further, some lawmakers look to the “five-year rule” when considering the pace of the legislative process. The rule states that, on average, it takes at least five years from the conception of a bill to the date of its final enactment, even in the case of compelling legislation. In the specific context of major copyright legislation, the five-year rule likely provides an overly optimistic timeline.Thus, the moment to contrive new laws is upon us. This paper begins by surveying the incompatibilities of modern technology (namely, digital media and the Internet) and copyright law. The goal is to substantiate the claim that lawmakers should cabin copyright as a system for the protection of physical opies of creative works, and create a complementary framework for digital works. The following section examines the economic and political dimensions of the content ecosystem, concluding that the law should foster the advancement of the cloud content model. The final section of this paper is intended to serve as an explanatory supplement to the Creative Rights Act of 2020, a bill that envisions one possible path forward.