Cracking the Copyright Lock:
A Debate about Implementing the WIPO treaty

May 14, 1998
Washington, DC

Tom W. Bell

Good afternoon! I'm Tom W. Bell, director of telecommunications and technology studies at the Cato Institute. Allow me to welcome you to a Cato Institute policy forum, "Cracking the Copyright Lock: A Debate about Implementing the WIPO treaty."

We're pleased to be able to bring today's debate to the Hill, and thank Representative Tom Campbell's office for sponsoring our visit.

Recent legislative proposals to implement the World Intellectual Property Organization--the "WIPO"--copyright treaty have included bans not just on copyright infringement, but on technological tools that might assist copyright infringement.

These proposals have generated a storm of public debate. Fortunately, we have a strong and balanced panel of experts to help us assess such legislation. We will hear, in order:

• Professor Jessica Litman, of the Washington College of Law at American University, arguing against the prohibition of copyright protection circumvention technology;
• Emery Simon, of the Business Software Alliance, arguing pro;
• Seth Greenstein, of the Home Recording Rights Coalition, arguing con; and
• Steve Metalitz, of the International Intellectual Property Alliance, arguing pro.

Before I introduce our first panelist, however, allow me to answer a question that many people have asked upon hearing about this policy forum: "What do libertarians think about banning copyright protection circumvention technology?"

Libertarians have widely varying views about the proper scope (if any) of intellectual property rights. Those of you interested in one approach to the problem might enjoy my paper, "Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine," a few copies of which I have on hand for hard-core copyright geeks.

I do not want to delve into the libertarians' internecine debate over intellectual property. Allow me to observe, however, why anyone who respects property rights must regard with great skepticism legislation that would outlaw entire technologies just to add to the many protections already enjoyed by copyright owners.

We enjoy a natural right to our persons and tangible property, and have instituted governments to protect those rights. In contrast, nobody has a natural right to intangible, intellectual property such as copyright.

As Thomas Jefferson said, "If nature has made one thing less susceptible than all other of exclusive property, it is the action of the thinking power called an idea . . . ." Ideas, he concluded, "cannot, in nature, be a subject of property."

Statutory protections of intellectual property do not protect natural rights; they encroach on them. Patent laws limit how we employ our machine shops. Copyright laws prevent us from peaceably using our printing presses and computers.

Given that they violate our natural rights to tangible property, can we justify intellectual property laws? Perhaps, but only if they help to prevent an otherwise catastrophic market failure, and only if their benefits clearly outweigh their harms. By that measure, proposals to ban copyright protection circumvention technologies look suspect. Far from suffering a market failure, the
copyright industry is booming.

The IIPA, represented here today by Steve Metalitz, recently issued a report showing that in the last twenty years U.S. companies that create copyrighted products grew at an annual rate of 4.6%--three times as fast as the economy as a whole! In 1996, these companies achieved foreign sales and exports of over $60 billion, surpassing for the first time every other export sector! Clearly, the copyright industry does not suffer from market failure.

Furthermore, legislation that bans whole classes of devices, that criminalizes entire areas of technological innovation, will impose certain and heavy harms in exchange for speculative benefits.

Proper respect for our natural rights to person and property calls for less intrusive legislation--or, at least, a more convincing justification than we have heard to-date.

Maybe today's debate will offer new and better proof of the wisdom of prohibiting technologies that circumvent copyright protection. Or maybe not. At any rate, though, we have a lively and informative discussion ahead, so let's get started.