In October, the New Yorker ran a piece by Louis Menand about the problems and debates about how copyright protections are currently understood (primarily, but not entirely, in the United States). Menand highlighted some particular difficulties faced by individuals who attempt to either protect or create copyrighted material, and particularly the difficulties that arise when these two categories of individuals (or, in the case of the copyright holder, corporations) come into conflict. Unfortunately, what might have been a chance for intelligent reflection on an important issue was, in fact, a fairly incoherent ramble through fraught, but by no means unpassable, territory.
Menand early on recognizes that copyright is, literally, the right to make a copy of something. This literal definition is less straightforward than it sounds, but not for the reasons Menand suggests. As Lawrence Lessig points out in his work on “remix” culture, copying happens far more often than we are aware of—for instance, any time you play a CD, a digital copy of the CD’s contents is being made. This is an unremarkable copying, and one that is generally not troublesome at all. But Menand includes under the notion of “copying” something that is not at all an obvious use of the term: providing a link in the text of a blog (as I did for Menand’s article at the very beginning of this post).
Menand suggests (subtly—he never makes a clear assertion about this) that linking to his article on the New Yorker‘s website might be considered little different than reprinting the article in a physical (paper, ink, and glue) book. He cleverly (he thinks) notes that the terminology of web browsing merely conceals the fact that there is a parallel between these activities: we move from one “site” to another, so when you click the link I’ve provided above, you have the impression of leaving my website and going to a new (conceptual) space, the New Yorker‘s website.
But this isn’t merely a play of words; clicking a link on a blog is not the same as printing a copy of Menand’s article. When you click the link, what happens is not, by the definition stipulated by Menand himself, an act of copying. I have not reproduced Menand’s text on my own site. I have no control over anything the New Yorker does with his text, including layout, advertising, embedded links and media, and so forth. I provide a link to the magazine; whatever the magazine does with its content is beyond my control. This is less like reprinting Menand’s text and more like providing a footnote that will allow you to find and read an article if you so choose. (In fact, I wonder whether you’ve already been to Menand’s article yet.)
The implications of how we understand the act of “copying” are profound, even in as trivial a case as this. (If I’m lucky, I can count on one or two people to read this post; Menand has an audience of thousands, thanks to his copyright arrangement with the New Yorker.) I have, as yet, not “copied” anything Menand has written. None of his text has yet appeared here. But even were I to copy from his article, I would be well within my right to do so, provided I excerpted from the article for purposes of commentary. I can’t simply reproduce his entire text here, but the doctrine of “fair use” clearly allows me to reproduce a reasonable excerpt if I transform it in some way—in my case, through commentary on the excerpt.
So I’ll do so, and at some length. Menand writes,
What’s the rationale for maximizing protection? The idea of a public domain belongs to the theory that individual rights are intended to promote public goods. The First Amendment protects individual expression, for example, because it’s in society’s best interest to have a robust debate—not because each person has a right to say what he or she thinks simply by virtue of being human. So the right to make copies was imagined by the Framers as a way to encourage the writing of books by individuals for the good of an educated citizenry. But, if you are a natural-rights person and you think that individual rights are inalienable, then you don’t recognize the priority of the public domain. You think that society has no claim on works created by individuals. The right to control one’s own expressions, to sell them or not, to alter them or not, is not a political right. It’s a moral right, and it cannot be legislated away.
In other words, the expansion of copyright that has taken place throughout the 20th and into the 21st centuries is the product of thinking about creativity as an individual act—even when, seemingly paradoxically, the benefit of that individual act accrues to a vast corporate entity long after the nominal creator is gone. (Think Mickey Mouse.) This framing of copyright as a “moral” right can be extended to absurd lengths, to the point where the public domain simply ceases to exist. Want to stage a play by Samuel Beckett? As Menand notes, you’d better get approval from Beckett’s estate, or else risk a costly lawsuit. Posting a YouTube video of your family singing “Happy Birthday” to your grandmother? Not if you don’t want to end up in court—even though the ownership of the “Happy Birthday” copyright is far from a settled matter.
A large part of the difficulty with the current understanding of copyright stems from an understanding of creativity that separates producers and consumers of cultural products. Musicians want to protect their copyrights in their recordings, making it difficult for artists to repurpose recorded materials. (Thank god for the Illegal Art record label.) Some artists—Prince, famously—even want to institute a right of refusal for the copyrights on published songs, which would essentially eliminate the ability of anyone to perform or record a cover version of anything. These positions are predicated on the notion that the creator’s rights to a cultural product (be it a song, a recording, or some other entity) are inalienable and infinitely protected. The public exists in this view merely as consumers; they are permitted no role in the creative process.
Clearly, though, this is not how creativity works. No artist, Prince or otherwise, is only a producer of cultural products; all artists are always also consumers. (Prince himself has made some rather inspired cover versions of other artists’s songs.) The sonata form that opens a symphony; the AABA song form popularized by Tin Pan Alley; T-Pain’s bizarre proprietary claim on particular uses of pitch-adjustment technologies—these are all possible because artists build on the work of others. But as Patricia Aufderheide and Peter Jaszi realized early in their work on fair use, artists almost universally see themselves as inhabiting exclusively the “producer” category.1)See Aufderheide and Jaszi, Fair Use: How to Put Balance Back in Copyright, p. xi–xii The result is a debate that not only favors powerful entities with extensive financial and legal resources (major record companies, large movie studios), but that also polarizes copyright producer-consumers.
The greatest victory of these corporate entities is not the repeated extension of their copyright interests, but rather, convincing artists that their interests are represented by the corporations themselves. The answer is not in Menand’s knotty and incoherent exploration of these difficulties, but rather, in a balanced and prolonged challenge to what we often take to be the fundamental assumptions of copyright law. Are there no permitted uses of copyrighted material in the public domain? Does it serve the public interest to entirely restrict access to and use of any and all copyrighted material? Do we, as a society, want more for ourselves than a culture that is legally controlled by a handful of infinitely powerful corporate masters?by
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|1.||↑||See Aufderheide and Jaszi, Fair Use: How to Put Balance Back in Copyright, p. xi–xii|