is current copyright legal framework useful for culture?

8/7/2019 Is current copyright legal framework useful for culture?

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Guillermo Olivares 1

Is current copyrigh tlegal framework

useful for culture?


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Ideas should

freely spread from

one to another over

the globe, for the

moral and mutual

instruction of man,

and improvement

of his condition.1

Thomas Jefferson

1 Thomas Jefferson, Letter to Issac MacPherson

(August 13th, 1813) in The Writing of Thomas

Jefferson, (Washington, 2002) http://press-

pubs.uchicago.edu/founders/documents/a1_8_8s12.html


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1. Introduction

During the last 10 years or less, creative

industries have been the battlefield of a relentless

struggle undertaken by global media corporations

against what they have called in a very general,

broad and, probably, intended way: piracy of

copyrighted works. In this fight these companies

have used all the tools available, including

lobbying lawmakers to make their agenda been

approved, using mass media to spread their

message and manipulating public opinion

claiming that they are just fighting to defend the

rights of creators and promoting their creativity.

Nonetheless, when one realises that

lawyers have become a sort of main characters in


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the development of creative industries, more than

authors or creators themselves, it is necessary to

wonder if these current regulations on copyright

are really helpful for culture and creative

industries.

The following essay can be helpful to

contextualise and understand the current state of

copyright framework, some of its antecedents

and further implications for cultural and creative

industries.

2. Contextualising

During centuries or even thousand of

years, humanity progressed in the way of

learning from past mistakes or challenging


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previous knowledge. Throughout history,

tinkering has been a natural method in the

learning process as, indeed, it is now in primary

school for children. This method was historically

natural to everyone so that nobody claimed for

the use of these established scientific theories or

artistic values. It was in the nature of societies to

take advantage of previous works to make

progress in different fields of human knowledge.

On one hand, creators profited socially and

economically with the use of their works by

selling them, performing them or even letting

others to use them and, on the other hand, society

benefited with new forms of expressions and

works of art.

Moreover, society received a further


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benefit, a brand new cultural background from

which to start new artistic or cultural works in the

normal way of derivative works by taking it as a

model or by modifying it.

For instance, when Buster Keaton opened

his film Steamboat Bill Jr. he was adding a

new and extraordinary piece to his outstanding

career as a performer in silent cinema, but, to a

certain extent, he was also establishing a new

creative background for further creations. Not

because of mediocre performers were waiting for

new works to plagiarise, but because it was -and

it is- a normal behaviour among creators to

borrow inspiration from the surrounding cultural

environment. That happened when Walt Disney

created and screened for the very first time a


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Mickey Mouse adventures film called Steamboat

Willy2. There were no lawsuit against anyone,

there were no claims on plagiarism and no one

was treated as a felon.

Creative expressions were considered a

kind of property, as indeed they are, but a

property with unique features that made them

quite different from others properties such as

land, cattle or vehicles.

One of its main and historic features is

that is a property with a limited extension in time,

after an appropriate term devoted to the profit of

the author and potential heirs, the cultural

product becomes part of the public domain,

where can be freely used, modified, translated,

2 Lawrence Lessig. "Free culture:the nature and future ofcreativity". (New York: Penguin Press, 2004)


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quoted or mixed by others creators who make,

then, a new generations of cultural works. In that

way, society used historically to progress.

However, the perception of content

industry on copyright changed radically when the

physical reproduction of books, records and even

films was made possible. Nevertheless, this

change became specially notorious when Internet

arrived to change the way humanity

communicates, spreads and shares contents. The

former reproducibility suffered dramatic

transformations due to technological

improvements which were easily available to

common users at an affordable price.

Thus, this reproducibility became in a sort

of hyper-reproducibility in which users have the


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possibility to cut, copy, mix, modify or alter any

type of content and also make the resultant works

available to other users within hours or even

minutes.

As consequence, creators, stakeholders

and right owners when realised on this behaviour

tried to protect their works, but it can be stated

that in this attempt they were beyond the tradition

in Western culture of cultural progress as argued

in the above arguments.

In such way, the industry started the

campaign against what it called piracy, which

one can witness everyday on media.


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3. Current legal framework

Since 1710, when the first legal

framework on copyright was established in

England under the name of Statute of Anne in

relation with the book publishing business a

complete transformation had happened in legal

systems in order to protect those right.

One can check a considerable number of

laws on this topic and all of them clearly state

that the main purpose is to protect the rights of

creators and artists to their work and their

creativity.

For instance, the very same Office of

Copyright in the United States informs on its

online handbook that "copyright is a form of


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protection provided by the laws of the United

States (title 17, U. S. Code) to the authors of

original works of authorship"3.

However, if one reviews some of the most

controversial modifications in the copyright

legislation, specially in the US legal system, this

purpose is not so clear.

Firstly, the Copyright Extension Act of

1976

4

states that to be protected by copyrights

works were not longer required to be registered at

the Copyright Office. From that moment on, the

copyright protection was automatically applied to

every work whether published or not. There were

3 United States Copyright Office, Copyright basics,Washington, 2008.

http://www.copyright.gov/circs/circ01.pdf4 United States Copyright Office, Copyright law of the

United States, Washington, October 2009.http://www.copyright.gov/title17/


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no formalities required to follow to make a work

protected not even being published.

Secondly, in 1994, the Uruguay Round

Agreement Act5 signature by President Bill

Clinton represented the immediate and automatic

restoration of copyrights in the US to the

majority of the foreign works which their rights

expired or were not renewed in the US. Those

works were already in the public domain, but

when the President Clinton signed the agreement,

he changed dramatically the situation of public

domain, and consequently the rights of the public

and creators to the access to cultural goods.

Thirdly, in 1998, the US Congress

5 United States Copyright Office, Notices of restoredcopyrights, Washington, revised August 29, 2007,

http://www.copyright.gov/gatt.html


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approved the Sony Bono Copyright Term

Extension Act6 which extended for 20 more years

the term of copyright by that time already

extended to 75 years, so in this way the copyright

term are now 95 years. It is very clear, now, that

US legislators had just one work and one

company in mind -Mickey Mouse and Disney-

when approved this controversial act7.

Based on the last one, maybe the

congressmen thought exclusively in the

protection of the Disney's rights, but they

affected and altered totally the whole tradition on

copyright matter in the US and to a great extent

6 The Library of Congress, S.505, Washington ,http://thomas.loc.gov/cgi-bin/query/z?c105:s.505.enr:

7 Simon English, Gloves are off over US 'Mickey Mouse

Act', The Daily Telegraph, Octiber 8th, 2002.

http://www.telegraph.co.uk/finance/2829530/Gloves-

are-off-over-US-Mickey-Mouse-Act.html


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in all the world.

In addition, if one analyse the

combination of all these legal measures, the

Congress along with protecting some rights in

favour of just a few right holders, made a huge

amount of works unavailable to the public, even

those considered orphan works8 which in 1998

should have been put in the public domain.

They have also privatised cultural goods

already in the public domain taking them away

from their legitimate owner: the whole

Humanity.

Besides the legal view, there is a

economic dimension to be considered in these

8 Orphan Works are those whose copyright holders are

very difficult or impossible to make contact with.http://www.publicknowledge.org/issues/ow


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modification and to be taken into account in

further analysis.

For instance, in his dissenting vote in the

Eldred vs. Ashcroft court case9, the US Supreme

Court Justice Stephen Breyer states that in

conjunction with official figures on copyright

renewals, the CRS Report indicates that only

about 2% of copyrights between 55 and 75 years

old retain commercial valuei.e., still generate

royalties after that time10.

Consequently, all the 98% left has 20

more years of no profit and according to the law

no possibility of cultural life, because if one uses

9 Eric Eldred, Internet publisher and former computerprogrammer, tried to challenge the constitutionality of

the Sony Bono Copyright Extension Act by10 Eric Breyer, 537 U. S. ____ (2003), Washington,

January 15th, 2003, p7.http://www.copyright.gov/docs/eldredd1.pdf


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a work under copyright without permission could

be sued and probably condemned to pay

millionaire damages.

So taking into account just this fact to

make an initial conclusion: It is all about greed.

Congressmen instead of protect the

superior interest of people as signalled in the US

Constitution, took side of global corporations

defending and promoting the privatisation of

public goods by creating laws and by modifying

them to make them to fit in the stakeholders

agenda.

In the US Constitution (Article 1, Section

8,. Clause 8)11 is clearly written the interest of

11 To promote the progress of science and useful arts, by

securing for limited times to authors and inventors theexclusive right to their respective writings and


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lawmaker for cultural creations and scientific

knowledge, but it is also clear that the rights

conceived for them are just for a limited term.

Nevertheless, according to the Sony Bono

Copyright Extension Act and the further revision

in the Supreme Court (Eldred vs. Ashcroft case)

this idea of limited times may become in a tacit

perpetual term, because the US Congress has the

attribution to review and modify the copyright

term, despite being explicitly stated in contrary in

the US Constitution.

So if one considers just these ideas, one

can say that the current copyright legal frame has

been built considering a minimum amount of

works and a majority of those that now should be

discoveries;(US Constitution,)


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part of the public domain have been captured and

to a certain extent stolen from the public.

For all the reasons expressed above, one

has to be careful when adhere openly and

sincerely to these claims on copyrights, because

it is normal to sympathise with authors, artists

and creators and their rights to their works.

Even more, corporations lobbyists

normally appears on media talking about the

right and fair interest of creators, but they hide

the real interest that industry has on these works.

Who can be against artists or authors?

Who can support piracy? One cannot be in any

way in favour of stealing the rights of artists on

their work.

However, these lobbyists attempt to mix,


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most of the times successfully, many different

and unrelated behaviours of users below the

concept of piracy.

So, they condemn even legal and

legitimate uses, i.e. download and share films

already in public domain such as The night of

the living dead (1968) by George C. Romero12

or Nosferatu (1922) by Friedrich Wilhelm

Murnau

13

along with proved piracy behaviour

like to copying original DVDs and selling them.

If one can express the questioning on this

issue in a different way, one can say, then, if

copyright primarily intend to protect the rights of

12 The film is available onhttp://www.archive.org/details/night_of_the_living_dea

d13 Originally titled Ein Symphonies des Grauens (Film

available at www.archive.comhttp://www.archive.org/details/nosferatu)


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authors and their potential creativity what kind of

benefit will receive a creator 95 years after the

publication of their work when he and his direct

heirs surely will be dead.

One core reason for all those efforts and

strategies taken by corporations can be found in

the expressions by Mark Getty, the owner of

Getty Images, one of the biggest copyright

related companies, during an interview in The

Economist. Intellectual property is the oil of the

21st century. Look at the richest men a hundred

years ago: they all made their money extracting

natural resources or moving them around. All

todays richest men have made their money out

of intellectual property14.

14 The Economist, Blood and Oil, March 4th, 2000, 68


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4. The crisis of a model ofbusiness

The explosion in internet file sharing

make the traditional content companies to notice

that the market was changing and the trends of

consumption were progressively modifying

towards a virtual environment.

However, they were blind to preview the

dimension of these changes and they also were

completely incapable to react in terms of industry

and business within a free market to these

technological challenges.

On the contrary, they started a endless

legal war against everyone who can be a possible


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felon on copyright matters. Thus, everyone as a

consumer or user is now a potential law breaker.

The very first chapter of this war was

Napster, and paraphrasing the blogger and author

Cory Doctorow the outstanding issue in the story

was not the appearing of Napster, but the way

industry managed to destroy this project15.

Since then, industry and their

protectionist agenda has used its influence on

lawmakers and politicians to make the file

sharing of protected content a crime even more

serious than, for example, medical malpractice.

For example, in 1997 the Great Ormond

Street Hospital had to pay 65,000 to the parents

15 Cory Doctorow, Content: selected essays ontechnology, creativity, copyright and the future of the

future, (San Francisco, Tachyon Publications, 2008)


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of a 12-year-old child who died after he was

wrongly injected to the spine with drugs for his

cancer16. In contrast, in 2007, Jammie Thomas, a

30-year-old single mother from Minneapolis, was

found guilty of wilful infringement of copyright

by file sharing 24 songs and the verdict was a

$1,920,000 award for damages17.

Even more, the No Electronic Theft Act,

also known as NET act, approved in the United

States in 1997 establish that copyright

infringements could be punished with a

16

Chris Gray, Medical negligence pay-outs double inthree years, The Independent, Mondat August 7th,

2000. http://www.independent.co.uk/life-style/health-

and-families/health-news/medical-negligence-payouts-

double-in-three-years-710637.html17 Mikey Harvey, Single-mother digital pirate Jammie

Thomas-Rasset must pay $80,000 per song, The

Times, June 19th, 2009,

http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece


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maximum of 5 years of prison and fines up to

$250,000. The NET act also increased the

statutory damages up to $150,000 per work if

wilful infringement is proved18.

Nevertheless, this is not the first time that

industry claims that a new technology is

destroying creative industries and inflicting

serious economic damages to industry.

In this sense, during the XX century the

world witnessed as stage performers criticised the

appearing of radio, broadcasters were afraid

when films opened in cinemas, Hollywood

producers saw a negative future for them when

television became a reality, but now in 2009, one

18 Departamente of Justice, The No Electronic Theft

("NET") Act, February 18, 1998,

http://www.justice.gov/criminal/cybercrime/17-18red.htm


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has the chance to go out and to attend the theatre

or the cinema or one can decide to stay at home

and to choose whether to listen to the radio or

watch Television. All these stakeholders

prophesized tragedies on media and cultural

industries that never happened. It can be

expressed that the market simply had the

responsibility to adapt itself to new players and

new rules. Why this time should be different?

Itunes, Spotify and Last.fm, just to

mention some projects, have shown that both

adapting to new technologies and success are

possible and what is in crisis is just a model of

business, a model stuck in the 90's or even in the

end of the 80s, based, for instance, on the sales

of CDs, but no necessarily on downloading


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music.

In addition, copyrights has converted the

market in a complete disorder and became in an

unexpected threat to customer, due to false

claims of rights from corporations that have

adopted the habit to sue users even if they have

no the right to do it.

Some blogger and lawyers have called

this behaviour Copyfraud

19

, which means that

companies in the business of intellectual property

claim copyright and even threat with suit and trial

to users for contents that have no copyrights or

are licensed under others licences.

For instance, the news agency Associated

19 Jason Mazzone, "Copyfraud", Brooklyn Law School,

Legal Studies Paper No. 40 New York University LawReview, Vol. 81, p. 1026, 2006


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Press (AP) charged 12 dollars bill to a user20 for

the use of an excerpt that after was discovered it

was written by Thomas Jefferson21 in a letter.

Those words were expressed in 1813 and they are

no more under copyright regime, so anyone can

use it with no permission or fee payment

involved.

In other words, AP is selling a quote

22

that they do not wrote and even more that they

do not own.

20

James Grimmelmann, The AP Will Sell You a"License" to Words It Doesn't Own, in The

Laboratorium, August 3, 2009,

http://laboratorium.net/archive/2009/08/03/the_ap_will

_sell_you_a_license_to_words_it_doesnt21 Jefferson, Letter to Isaac McPherson, 1813.22 The quote bought to AP is the following If nature has

made any one thing less susceptible than all others of

exclusive property, it is the action of the thinking powercalled an idea (Thomas Jefferson)


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5. The search foralternatives

The automatic extensions to copyright

term and the retroactive measures to restore

copyright has been a very profitable and

convenient policy for corporations devoted to

make money in the intellectual property business.

However these regulations has been disastrous

for cultural, academic and artistic communities,

due to the impossibility to check a catalogue of

public domain works. There is no such a list of

works available.

According to Lawrence Lessig a complete

generation of US films will be lost as

consequence of this legal framework, because of


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the legal obstacles to use them even within the

fair use exceptions23.

For instance, if one wants to rescue and

restore a film produced in 1935 for academic

purposes due to its artistic or historical value, one

should be aware that as first step needs the

permission of the right owner, to get that

permission one must to identify and localise the

right holder, but in this very unlikely case one

can face three different situations. The first one is

that one cannot find or even identify a right

owner, the second one is that one can find him,

but after doing it the person denies the use of

their material and the third one, the process of

identifying and tracking the owner of these rights

23 Lessig, Free Culture, 1999


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can reach unaffordable values24.

This kind of corporate behaviour and its

complete legal architecture built not to share

knowledge, but to make profit for corporations

through the exploitation of cultural and artistic

resources convinced the academic, artistic and

technological communities to start working on

parallel projects of licensing tending to return the

sense of sharing and tinkering to the cultural

work as it was historically.

In 2001, one on these efforts became real

when Creative Commons started to act in the

copyright environment. As maybe known this

kind of licensing offers creators and users a series

of choices to distribute and share their work, and

24 Ibid.


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some requirements to accede to it25.

Progressively this licence has gained a

good reputation in academic and artistic

communities due to its features which are

respectful with both creators and users.

One of the most outstanding examples in

the use of this licence was the release on the

album Ghost I-IV by Nine Inch Nails26. There

are several options for the user to accede to this

record even for free, and according to the license

the user are free to mix and share the material

under certain conditions, for example, to attribute

the record to its author, to distribute the

derivatives works in the same license conditions

and to share for free among users.

25 http://creativecommons.org/choose/26 http://ghosts.nin.com/


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The record was released in March, 2008

and according to The Chicago Tribune27 the band

informed that the sales reached $1,6 million just

after a week and it also received two nominations

to the Grammy Awards.

A second one is the blogger and author

Cory Doctorow, who has released his books

online under a Creative Commons license at the

same time that paperback version. How he

managed to convince his publishers? One do not

know, but the time and the balance have give him

the reason. The same Doctorow express in his

book Content I've discovered what many

authors have also discovered: releasing electronic

27 Greg Kott, "Reznor's one-week take for 'Ghosts': $1.6

million", Chicago Tribune, March 12th, 2008,

http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/reznors-one-wee.html


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texts of books drives sales of the print

editions28.

6. Conclusion

When in the 18 Century, lawmakers

created copyright regulations in US and England,

they tried to protect the legitimate rights to profit

on their work of authors and creators.

The extension term considered in this first

stage were reasonable to this premise and to the

natural law as Thomas Jefferson expressed in

1813in the same letter mentioned before.

By an universal law, indeed, whatever,

whether fixed or movable, belongs to all men

28 Doctorow, Content, 80


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equally and in common, is the property for the

moment of him who occupies it, but when he

relinquishes the occupation, the property goes

with it29,, he clearly stated.

However, in the same way that

technologies improved the publishing and

distribution chain, the growing content industry

attempted to maximise their profit by modifying

the copyright laws.

So, if one can compare the original acts

with the most recent legislation one can notice

that they are completely different and they are

efforts to protect contrasting realities.

The former were laws that intended to

protect the author and their creativity by a limited

29 Jefferson, Letter to Issac McPherson, 1813


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term, so in that way benefit society and, in the

latter, laws has been modified to protect profits

of corporations affecting society with the

privatisation of works already in the public

domain, where they stay for all humanity benefit.

The current laws allow industry to sue

and even prosecute internationally to users

accused to infringe copyright regulations who are

threaten to be sent to prison during several years

and paying millionaire damages to copyright

holders.

Along this process, creativity was

undoubtedly the major casualty in this war

against piracy, because usually creators used

piece of arts surrounding them to take inspiration.

But now it is impossible to confirm if a work,


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among million of works, belongs to the public

domain or it is copyrighted.

In consequence, nowadays, it is

absolutely understandable that no one want to

take the risk to be suited for using the wrong

work. The costs to investigate the copyright

status, to avoid lawsuits, can be absolutely

prohibitive.

In summary, tinkering has become a

dangerous and risky activity and because of the

risks and the fear is that creativity tend to

diminish, which is contradictory with the original

sense of copyrights laws.


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Bibliography

Breyer, Eric. 537 U. S. ____ (2003),Washington, January 15th, 2003, p7.http://www.copyright.gov/docs/eldredd1.pdf (accessed 21 December 2009)

Departamente of Justice. The No ElectronicTheft ("NET") Act, February 18, 1998,

http://www.justice.gov/criminal/cybercrime/17-18red.htm (accessed 23 December2009)

Doctorow, Cory. Content: selected essays ontechnology, creativity, copyright and thefuture of the future, (San Francisco,

Tachyon Publications, 2008)

English, Simon. Gloves are off over US 'MickeyMouse Act', The Daily Telegraph, October8th, 2002.

http://www.telegraph.co.uk/finance/2829530/Gloves-are-off-over-US-Mickey-Mouse-Act.html (accessed 21 December 2009)

Gray, Chris. Medical negligence pay-outsdouble in three years, The Independent,Mondat August 7th, 2000.

http://www.independent.co.uk/life-style/health-and-families/health-news/medical-negligence-payouts-double-in-three-years-710637.html (accessed 25 December 2009)


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Grimmelmann, James. The AP Will Sell You a"License" to Words It Doesn't Own, inThe Laboratorium, August 3, 2009,http://laboratorium.net/archive/2009/08/03/the_ap_will_sell_you_a_license_to_words_it_doesnt (accessed 21 December 2009)

Harvey, Mickey. Single-mother digital pirate

Jammie Thomas-Rasset must pay $80,000per song, The Times, June 19th, 2009,http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece(accessed 23 December 2009)

Jefferson, Thomas. Letter to Issac MacPherson

(August 13th, 1813) in The Writing ofThomas Jefferson, (Washington, 2002)http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html (accessed 24 December 2009)

Kott, Greg. "Reznor's one-week take for 'Ghosts':$1.6 million", Chicago Tribune, March

12th, 2008,http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/reznors-one-wee.html(accessed 22 December 2009)

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The Economist, Blood and Oil, March 4th,2000, 68

The Library of Congress. S.505, Washington ,http://thomas.loc.gov/cgi-bin/query/z?(accessed 23 December 2009)

United States Copyright Office. Copyright

basics, Washington, 2008.http://www.copyright.gov/circs/circ01.pdf(accessed 22 December 2009)

United States Copyright Office. Copyright lawof the United States, Washington, October2009.

http://www.copyright.gov/title17/ (accessed 24December 2009)

United States Copyright Office. Notices ofrestored copyrights, Washington, revisedAugust 29, 2007,http://www.copyright.gov/gatt.html(accessed 22 December 2009)

is current copyright legal framework useful for culture?

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