Firstly, I think it would be wise to acknowledge the obvious – that copyright law differs from country to country but that the West has dominated the discourse surrounding it for decades. Even with seemingly egalitarian international agreements, countries such as the US and Canada determine what many view as the “standard” for copyright law. Having lived in the Global South, I have a differing view of what copyright law should be. I shall, therefore, divide my opinion into: “what Grace the person thinks” and “what Grace the publisher thinks”. Only because I am talking about publishing shall I focus on the US and Canada. Oh, and one last disclaimer, I am centering my argument on the creative sector only.
Grace the person believes that the creator of an original piece of work should be able to financially benefit from that work and that they should be able to set the rules about when they want that work to fall into the public domain. Idealistic, yes, but fair. They created it, why should they not determine when they as well as their families for generations to come should benefit from it? I recognise that this may cause confusion as this will entail eliminating the government as the overriding voice in issues of the law. Also, there are countless creators in the creative sector and it will be tough to keep track of what each individual wants. Therefore, the more realistic suggestion I guess would be to give creators of original pieces of work autonomy by extending the copyright laws currently in place.
Life+70 in the States and Life+50 in Canada are not only beneficial to creators from a financial standpoint but they force other people to create their own innovative works as opposed to reinventions or reuses of existing ones. Some may argue that “nothing is new under the sun” and that I am wrong to call any work truly “original” but I disagree. Human innovation has produced some bona fide work and to keep this influx flowing, copyright laws should remain as they are or be extended. If I were to practically change the laws, I would increase them to life +100 in the US and life + 70 in Canada as a start.
Before you begin to think that I am against the sharing economy, I am not. I believe in collaboration and that people can draw inspiration from each other. I even believe in the usefulness of fair dealing. I just believe that society should not feel entitled to the creative work of others. And unless a deal is struck with the original creator of the work or unless the original creator gives express permission during their lives, then their work should be theirs even up to a century after their death. Also, a lot can happen in a century, technology can shift massively and by the time the works fall into the public domain, careful thought might have been given on how to work with it and space would have been made to welcome a new wave of creativity.
Grace the publisher
In an article titled A Publishing Contract Should Not Be Forever, the Authors Guild in the United States argues that Life+70 should not apply to the publishing industry because most contracts between publisher and author favour the publisher and leave the author without a way to defend their original work. I will not lie; this leaves me conflicted. Grace the person, for example, would say that as the original creator of the work, an author should be in control of it and that publishers should not have complete rights over the work of others. The budding publisher in me, however, has now seen how much goes into the polishing of a manuscript and how much labour the publisher puts in before a work can go to market and believes that Life+70 should stay in the hands of the publisher. If ever the publisher stops adding value to the piece of work, however, the rights should revert back to the author. This will make publishers accountable, to try and get the best out of the market in a mutually beneficial way.
As you can tell what I believe as a person does not always align with what I believe when I put my business cap on. Please notice that the scope of my discussion is copyright law in relation to people and not corporate entities because this is what I am familiar with. Let creators and their estates benefit from their work and may this motivate others to innovate!
These opinions are different to those of the majority but do not condemn them just yet- let us continue the conversation instead!:)
“We’ve moved beyond the fact of the Internet being merely a ‘presence’ or ‘contraption.’ It is a society in and of itself, a virtual reality overlaid a physical one, but with no less real repercussions. Human “consciousness” and thus “credos” are influenced, expanded and rewired in the face of a multitude of subjectivities and an extra layer of reality, the human world will expand, collapse, and change in ways we can, at this moment, only speculate.”
My argument sounds a bit New Agey, even to me, but the opportunity to look critically at current copyright law in the face of digital information sharing via the Internet is an interesting case study to illustrate my line of thinking. If we begin to think of use, function, and sharing beyond only print culture and expand to adapt to the realities of electronic culture, the laws and protections regarding intellectual property will need to find a balance which benefits creators, publishers and the public. The model for this already exists: it’s called the Creative Commons.
In the 1960’s, Marshall McLuhan proclaimed that society was moving from the print age to the electronic age– one in which print culture is replaced by electronic aural and oral culture– I would go a step further to add “participatory culture”. McLuhan argued that the fragmented nature of electronic transactions would cause society to reassemble itself in a kind of “global village” or collectivism. Keeping in mind this prediction was made 30 years before the invention of the Internet and yet uncannily describes it, one must imagine a McLuhanian argument in regards to intellectual property: that the enclosure, or contemporary copyright law, is no longer valid because the law was a result of print technology. From the 1710 Statue of Anne, this law was considered a compromise between the utilitarian position of intellectual property, which valued published work in regards to public interest, versus the natural-rights position, which valued the individual’s right over their creation (Hesse 36). The current Canadian Copyright Act , and similarly copyright laws in other nations, apply copyright only to intellectual property that has been recorded. In Western tradition, for better or worse, this makes sense as communication, ownership, and idea transmission has travelled via printed text. But print and recording are based on a concept of stasis: that the original is the authority and any copy is just that, a replica. The individual, the singular original, is the foundation of print culture and by extension, copyright. When we consider the nature of electronic communication, its inherent copy mode of transmission, editable and shareable capabilities, current copyright law feels like a small square cage for a gigantic, amorphous creature.
As a person involved in artistic production, I am aware and stand by an artist’s right to their work and labour. I imagine I might be upset if I found another person profiting from the copy and resale of a piece of art I had made. On the other hand, I don’t believe anything is truly original and that human creation has always been a form of re-creation. I am a proponent of the iterative process that involves reinterpreting existing works– be they chords of a song, a pharmaceutical formula, lines of coding– to make something better, even ground-breaking. This is no different in the digital age; it is amplified. How can creation happen if creations are locked down to one rights holder?
The answer, I believe, stands in the Creative Commons model. Creative Commons is a non-profit organaization that provides legal creative rights for creators to apply to their work which both protects the natural-rights of the author as well as specifies the level of usage (access within the public domain) the author chooses the work to have. Since it is applied by the creators, it overrides any kind of automatic copyright and puts agency into the hands of the maker. Imagine if graphic novelists or musicians all chose to allow their work to exist under Creative Commons: scanners of comics and remixers distributing their creations would be celebrated, not penalized; creative iteration would proliferate; and the creator’s intellectual property would be legally protected. Current protectionism around intellectual property is often founded in fear of a loss of profit, for the author but primarily for the publisher. This was true in 1710 for the Stationers’ Company, when the purchase of printed copies of a work were the only way to access the work or make profit off of it. It is understandable that publishers, on or offline, would want to maintain this control today– protected copies are their lifeblood. However, unlike the 14-year term of the Statute of Anne, Canada now sees a term of life+50 years, with chances of an increase as Canada negotiates with the US term of 75 years in NAFTA talks. The bottom line, for me, is that the electronic, aural, oral, and participatory culture–that is, the user– is going to drive the use of content, whether authors, publisher or the law likes it or not. James Boyle sums up the argument for shorter copyright terms and bringing work under Creative Commons neatly:
“The goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish.” (11)
The transition of any era is difficult. It is hard to shed ingrained (brainwashed?) ideas about the meaning of property and ownership. As global society moves into a globalized, connected and accessible framework, legal protection of content needs to move as well. I propose it move out into the Common.
Copyright in its current form aims to protect the work produced by creatives—authors, artists, designers, publishers, etc.—by not allowing others to publish (that is, to make public) their work without the proper permissions. The reason for this is to ensure the creator of the work is properly compensated for the creative work they have produced, and so the creator does not suffer loss whether monetary or otherwise from the unauthorized publication of their work.
Copyright law is extensive and confusing, and not all creators or publishers (or people in general) understand it—hence why we’ve had multiple classes on the topic in our master’s program. As a future publisher (in the not-so-distant future), I want to raise two questions with current copyright law. One, we’ve talked about before in class: what to do with orphan works, and should copyright have to be renewed. And two, a “how does copyright factor in this” question about small publishers with backlist books from big name authors.
In the digital age, a lot of people expect all content to be available at their fingertips online. As a society, we’re not far off from that, but copyright does limit the (online and print) publication of works—not everything that has been created is or has been publicly available. In Hannah’s History of Publishing course, we’ve talked about preserving history through writing and publication, and it’s a great cause but copyright is preventing the public from seeing and experiencing works that have no discernible owner. After the original creator has died, their estate inherits their copyright, but the owner of their estate may not realize that they own copyright to any work; this also may not be public knowledge, so tracking down owners of estates with copyright can be extraordinarily difficult.
When copyright is a possible issue for a piece being published but the publisher cannot locate the copyright holder, the publisher can either err on the side of caution and not publish the piece, or hope the copyright holder does not come forward and publish the piece anyway, as Scott Steedman did with one of his press’s books. The former keeps the publisher safe, but limits the works available to the public. The latter can be risky, but is ultimately in the public’s best interest by making more works available.
In order to limit the number of orphan works and maintain the rights and protection copyright law allows, it should be considered that copyright law be changed to require estate owners to renew or check-in the copyrighted works they now own and register it in their name so they are more easily found by those who seek them for copyright purposes. (Of course, there would be security and privacy issues with this change in the law, but that’s a topic for another course.) With this change, publishers could find copyright owners easier and do their due diligence, and it would, I believe, ultimately lead to more works being available to the public.
The second issue I wanted to bring up has to do with small publishers who have published works by authors who have since become best sellers with larger publishing houses. I’m not 100% sure this is a copyright issue in itself, but the topic seems close so I’d like to bring it up and see what people think.
As a future small publisher (and someone who has worked with many small publishing houses), I believe the key to my business’s success is the success of the authors I work with. Sometimes, that author’s success will lead them to a larger publisher that can pay them more and offer a higher marketing budget than my small house can afford—and that’s okay. I recently read an article that contained interviews from small publishers in Canada and the US, the article discussed a situation with publisher Hawthorne Books and their author Monica Drake:
Seven of the publishers based in the Pacific Northwest had authors who had left to publish with a larger publisher. However, small publishers do not seem bitter about this, in fact, Hawthorne Books said “if they can get a better deal then I’m not opposed to that”. For example, Hawthorne Books published Clown Girl by Monica Drake: Crown (PenguinRandomHouse) offered a $10,000 advance for Drake’s next book while Hawthorne could only offer $1000. When talking about this move, Hawthorne Books said, “There was absolutely no hard feelings: I was delighted for her: it shines the light back on our catalogue and our books: A win for everyone.”
I would like to highlight that second-to-last line: “it shines a light back on our catalogue and our books.” As a small publisher, this is my view. If an author I published gets a major book deal at a larger publishing house, people will read their next book and want to read more of that author, and they’ll end up with a book on my backlist. This is a wonderful thing, and I think this clearly demonstrates how a publisher’s success is measured by their author’s success.
However, I wonder what copyright considerations come into play when the small press then wants to promote their backlist book by the same author when their new book is coming out, or if they want to promote their new book from the larger publisher to bring attention to their backlist. I do not have comprehensive knowledge on copyright, but after some of our discussions in class I wonder if there would be a copyright concern from the large publisher’s perspective (or the author’s perspective) for the small publisher to want to bank on their previous author’s success to sell their own backlist titles.
“Any protection can be hacked given enough time, and the main users of digital software and media content—the young—have the time and incentive to do just that,” writes Aaron Fellmeth in this great article about the uncertain future of copyright in the on-demand age. Hellmeth discusses the Digital Millenium Copyright Act, adopted in 1998, and finishes by explaining that “we live in a chasm between the old product-based copyright law and the newish reality of cloud computing, streaming on-demand content, and content-as-a-service. Until Congress passes a new ‘Digital Services Copyright Act’ of some kind to defend legitimate consumer expectations, the software and entertainment industries are holding all the virtual poker cards.” So that’s the fundamental question now: as emerging publishers, we find ourselves in a time when changes are occurring at faster and faster rates.
Let’s say I have a blank canvas and Copyright Law of 2018 (20 years later) is at my whim. What do I care about and how would I like it implemented?
I’ll start off by saying that having your ideas stolen is not a nice feeling. Has it ever happened to you? In my case, it wasn’t someone making millions, or winning I don’t know what trophies, but as small as it was, it certainly burned. More than anything, it taught me the valuable lesson of keeping my mouth shut. I read somewhere this saying, something about how “if you can’t keep your own secrets, why would you expect your friends / your partners to do so?” These ideas are super well developed in Halt and Catch Fire. I devoured the series, it really does a marvelous job summarizing the technological advancements of the last couple of decades. Completely unrelated but very much worth stating, nearly each episode passes the Bechdel test. Just stunning scriptwriting!
Anyway, at some point, the main character (a super visionary guy) takes his former partner’s chunk of code and turns it into an antivirus program. They battle it out in court for a while, less relevant to this conversation. The point is that it reminded me of my scenario and it made me reflect on the relevance of copyright. We live in a world where individuals are made of different levels of greed and generosity. As far as I’m concerned, credit should be given where it’s due. SO in my agenda, I wrote down “Annie Slizak said this brilliant thing, that copyright should be renewed every five years.” I loved her idea, and I wanted to remember it, so that if I’m ever in a position, 5 or 15 or 25 years from now, where I’m in the publishing industry (or any other creative one) sitting down with Canada’s policy makers, that I discuss it as someone’s great idea.
I do believe, very much, in the value of copyright law, and I do see potential in developing this concept of renewed copyrighting. Another student of my cohort, Grace-Emmanuelle Kabeya, had an excellent counterargument, in regard to the financial aspect, as differentiator between those who were able to spend the amounts necessary, versus those that did not have sufficient funds. Given the gravity of this issue, I do believe then that an important change I would make would be to Canada’s Grant system, i.e. to develop a branch that examines applications for Copyright Extension from those that are perhaps unable to cover the cost.
I am a content creator myself, and I would like to know that if I am ever to produce any work, whether a book or a photography collection, or a documentary, that I have a system that acknowledges me and rewards me as creator. This is why I pay for Netflix, I pay for movies in the cinema to this day, I pay for my own Creative Cloud license, and why for the longest time I paid for CDs. I had to stop because “I’m too bloody young to not conform to new technology,” I told myself, thus I now pay my Apple monthly fees.
To me, this is my form of rewarding my creative peers for their work. And of respecting the copyright laws in place.
I hope, when the time comes, the same respect will be conferred upon me.
In my previous jobs working on a travel magazine, a design magazine and a film production house, part of my work entailed interviewing people and then writing a story, interspersing it with excerpts from the interviews. Interviewing became such an essential requirement of my job that I invested in a Dictaphone, which assured better audio quality than the voice recording app on my phone, which tended to capture too much ambient sound. In all those years of interviewing people, my focus was on researching for the interview, scheduling it, ensuring my interviewee was comfortable, that there were no technical hiccups, transcribing the interview (the longest and most painful part of the process), and then actually writing the story. Often, one story required me to interview as many as four people and that meant repeating the process four times. As you can imagine, my mental bandwidth was stretched thin and most often, I was just glad when it was done and I had submitted the story for publication. Not once did either I or the publication think of obtaining a signed consent from the interviewees and not once did the publishing firm or the film production house I was working for insist that I hand over the recordings of the interview and the entire transcription to them. Granted we weren’t involved in some major, earth-shaking scientific research, but what we were engaged in was still the recording, interpretation and sharing of oral histories. If there was one thing I would enforce with regards to copyright, it’s that people ensure oral histories and traditional knowledge gets protected and is treated with the same respect that is granted written knowledge.
Most historical knowledge from where I come, which is India, is in the form of either traditional knowledge or oral histories. Considering this knowledge dates back thousands of years, most of it is undocumented and not protected under any kind of intellectual property laws. Traditional Knowledge (or ‘TK’ as it is abbreviated) exists in India in the form of thousands of medicinal recipes and yoga asanas, and oral histories exist in the country in the form of folk songs, legends, and folklore and, more recently, in the form of stories of those who suffered India’s Partition in 1947 and the wars of 1962, 1965 and 1971. It is only recently that there has been a concerted effort to document and preserve these forms of indigenous knowledge. The government of India set up the Traditional Knowledge Digital Library (TKDL) to undertake the mammoth task of documenting nearly 2,260,000 medicinal formulations in multiple languages and 1500 yoga asanas. This happened in response to applications filed in the Europe and US that attempted to patent what were actually traditional Indian medicinal formulations. To safeguard India’s oral history, various projects – such as those undertaken by the Oral History Association of India (OHAI), the Nehru Memorial Museum and Library, the Amritsar Partition Museum and the 1947 Partition Archive – are involved in the painstaking recording, transcription and preservation of histories from the mouth of those that witnessed and experienced it. These histories, indeed, challenge history itself, as most do not conform to the textbook or government-sanctioned version of events as we know them. And as commendable as these projects are, one needs to think whether enough measures are being taken to ensure that these efforts are being protected against misuse.
In the Indian media industry – I use the term broadly to encompass television, film, and literature – there’s a certain laissez-faire attitude when it comes to following protocol. On a documentary film I worked on, I interviewed survivors of an oil-rig disaster, considered at the time to be one among the 10 worst oil-rig disasters in the world. The stories I recorded – from ship captains, divers, mechanics and other rig personnel – recounted events that did not necessarily corroborate with information that was disseminated by the oil company and were hence, highly sensitive in nature. In spite of this, we were not required to get any consent forms signed by the interviewees. Nor were the tapes and audio files of those interviews archived in any library or institution. And this practice continues across various forms of media. The ephemeral nature of magazine publishing makes it easy for the people involved to ignore documentation, especially when it is not enforced. Due diligence is an inconvenience when there are narrow timelines and tight deadlines to be met. But when what is presented – either via film, a story or a web post – is an extraction of a longer piece of oral history, the same needs to be assiduously protected and preserved for posterity and future knowledge. As a society we need to acknowledge that there are other forms of knowledge as legitimate as those which have been documented and when we participate in the recording of unconventional forms of history, we need to ensure certain steps are taken to protect them from misuse and appropriation.
Copyright is a contentious issue. It’s difficult to come to a consensus, as a society, on what rights a creator should maintain to their product and what rights a consumer should have on it. On one end, their is the individualistic idea that the creator should maintain absolute right to their creation: consumers merely pay for a license to use it as it is meant to be used and they are never truly owners of the object. Polar to that is collectivism, where a creator never owns anything they create, as a person is just a manifestation of the larger society they belong to and it is the societies right to own what the individual creates.
As far as I’m concerned, copyright law should take a spot in the middle that allows the creator to be compensated for the time and effort put into the creation, but just as equally recognizes the fact that no person creates out of a void and is drawing from everything society as a whole has crafted, and so society as a whole should benefit from it.
I do believe that the right to make copies of a thing should fundamentally remain with the creator, and the right to give those rights away belong to the creator (the thing being an expression of an idea and not an idea itself as current copyright law requires). This is the foundation of current copyright law and this might be where I depart a little bit from it.
I will cursorily note that I think the period of copyright is way too long and that everything should enter public domain immediately upon the creators’ death since, just as that creator benefited from society, society must then benefit from them. But what I would rather talk more about is, what seems to me, a growing argument these days about the control of and right to a specific manifestation of a creation. This conversation seems to stem from DRM and how the digital world has disrupted the physical idea of sharing.
Although there are a lot of dystopic predictions about how DRM will affect society in the long run, as well as some not-so-great uses of it happening already, the principle of it—to allow us to mimic the limitations of physical world sharing—is important. When somebody purchases something, such as a movie or an ebook, they should not be allowed to copy it and send it to somebody else. Can they invite their friends over to watch the movie with them? Can they lend the eBook reader they purchased the eBook on to their friend to read it? Absolutely. How they use or share their purchased copy of a thing should be completely up to them, except in the case of recreating another copy of it to be distributed.
But the language seems to be changing from ownership of something, to licensing the thing. And in licensing it you are agreeing to access to it so long as you only use it for a set specific intended uses. And the idea of DRM getting out of control and further controlling how people use products they buy is a scary one. DRM is a great tool for enforcing cases of copyright infringement, but as the article points out with GM using DRM to control who can diagnose an engine, it can also allow the creator to maintain too much control of a specific instance of their product that they sold.
But I don’t think it’s DRM and the current DMCA Section 1201 that is the root of the problem; I think as a society we tend to allow some of the bigger corporations to continue control of their product beyond sale. More generally, we as a society encourage the idea of ownership and possession beyond what is reasonable. DRM laws are just a single manifestation of it.
Outside of copyright, I would point to the case of Monsanto vs Schmeiser as a comparable example of how this mentality exists apart from DRM. Monsanto essentially licenses the use of their seeds to a farmer on the basis the farmer will not replant the seeds produced by the plant the following year but instead purchase new seeds. To me this is an example of our society protecting unjust overextended ownership of a corporation.
I think in copyright, and in all laws governing the ownership and use of purchased things, it is very important we lean towards the consumer having complete ownership of and right to use what they purchase in whatever way they want, barring reproducing it (unless the creator has explicitly given the right of reproduction away). In order to protect the creator’s livelihood, the right of reproduction is important. But licensing use seems to go beyond that into protecting the creators’ further interests and that, I don’t think, is something that can be justly protected by law, as it begins to lean too far on the individualistic side.
As I sat down to contemplate the future of copyright law, I felt the need to cue Fifty Shade of Grey OST in the backdrop. It’s ironical that the said work is also an example of copyright infringement (or not, it’s debatable). The Fifty Shades Trilogy was originally written as a Twilight fan-fiction. Fan-fiction stories are written by fans of the original story, using various story lines, characters and settings. Even though clear parallels can be drawn between the two books, the copyright law holds in James’ favour, calling it a ‘Derivative work’ rather than outright copyright infringement. See, that’s the nature of copyright—it is fifty kinds of gray.
Before anyone takes a stance on copyright law, it’s prudent to not only look at the things as they are now, but to also examine why this law came into existence. When the Statute of Anne was passed in 1710, it was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. It was all about text. Until a few decades later it was modified to cover works, independent of any medium— cinema, gramophone, radio, and so forth. A few decades on and the copyright was steered in a completely new direction–the Internet—for regulating access to tools in a way much more arbitrary than anyone in the pre-digital age could have imagined.
This change is the result of the fast changing scenario where previously tangible mediums of delivery have merged in to one singular intangible medium of the Internet. This is a classic case of ‘one size doesn’t fit all’. It is simpler to establish copyright laws when dealing with ideas in conjunction with physical forms—a book, or a CD, or a piece of art. Copyright infringement or the act of ‘copying’ is easier to establish when dealing with identifiable mediums. This differentiation becomes more and more obscure when the very idea of using a networked computer is based on creating copies, lots and lots of them.
So where is copyright law headed? Copyright law, right now, is a simple idea that is ambiguous in application. It needs to be the other way around. The law needs to be far reaching in its coverage but easier in application. The line, between what is infringement and what is not, should be explicit. That’s just one aspect of it. There’s more.
We live in a digital age where we’re more or less getting conditioned to having instant gratification. The world has shrunk to the size of your computer screen and anything that you may ever want is available for a price on the Internet. We want things fast and we want them now. The entire premise behind Google Books was to make the collective knowledge base searchable and readable within minutes, or at least that’s what they told us. But Google’s intentions are non-issue here. We need to self-examine ourselves and the way we consume information today.
Extensive piracy of copyrighted material not only throws light on the inherent problems of the copyright law, but also our psychology, where we seemed to have developed a sense of entitlement. We expect more and more things to be free—books, music, movies, research, software, etc. We are caught in the web of conspicuous consumerism without having to risk anything in return. Sometimes we do it knowingly (See Oatmeal’s comic strip), sometimes unknowingly, and sometimes under pretext of ‘fair use’. There is more than one way to skin a fish. Sigh.
On the other side, it’s true that piracy hurts the content creators, but not entirely. Singers, authors, artists have been known to use the free-for-all Internet to promote their works. ‘Go viral’ is the motto in the age where eyeballs mean everything. The bone of contention here seems to be money.
Yes, the relationship between creativity and commerce is tenuous, but not mutually exclusive. As things stand right now, consumers and creativity are in a meeting place. But the commerce is missing. There is no use yelling at the pirates and freeloaders, because the need and the means to fill that need already exist. If a viable platform to access these works doesn’t show up, people have no qualms about turning to a bit of a pirate themselves, because the manifestation of stealing a real object is categorically missing here. Yes, it’s stealing, but you’ll forgive yourself.
It’s hard to imagine a world without intellectual property protection. Having said that, there is a clear need to evolve into something more flexible, agile and enforceable, considering how people consume information and pay it forward. Shifting the focus from pirates, I feel even the publishers need to re-evaluate their approach and work towards creating a more meaningful user experience to gain competitive edge, making the copyright redundant anyway. The resulting experience will leverage on content quality, open partnerships and co-op arrangements across various platforms to offer the end-user a product that they will be compelled to buy, rather than use illegally. In the fast evolving digital age, we need to channel the flow of information, not create more boundaries.
Taking a leaf out of Rumi’s books, copyright law needs to go beyond the antiquated idea of right and wrong and meet the consumers in a place where knowledge meets economy, for the betterment of the world as a whole.
I usually side more with the artist in the cases of copyright. It is my opinion that whoever comes up with an original idea should get to benefit for as long as possible from the idea. I know far too many artists who struggle to make ends meet to be okay with lax measures for addressing copyright infringement.
It seems that there are quite a few problems with copyright laws, length of time being one example. Currently in Canada, copyright lies with the work’s creator for his or her entire life, plus 50 years after death. In the United States this number is increased to 70 years. Many people think that this is way too long to keep something away from the public domain. Art is called an “orphan work” when its copyright holder is either unfindable or uncontactable. There are examples of companies being forced to sit on their material for many years because they have no way of finding or contacting the copyright holder. There may be a very small chance that the copyright holder would sue after this material was released, and he or she may not ever become aware of the material in the first place. What’s more, there is a good chance that the copyright holder is no longer alive. Even still, the company does not want to take a chance, and they are therefore resigned to waiting out the copyright term before their material becomes usable.
My solution to this problem is a copyright renewal system. Copyright will automatically last five years after creation, unless the copyright holder decides to renew. The fee for renewal does not have to cost much; it may even be free. With this system, an artist who is still profiting off of, wants to retain reproduction rights for, or has any motivation whatsoever for his or her work can continue to hold the rights, while an artist who no longer cares what happens to his or her work, or wants to share it with the public domain, can let the copyright expire.
Although I believe that a work’s creator should receive the most benefit from his or her work, I understand the importance of furthering creativity and that sometimes creativity may include the reproduction of a copyrighted work. Because of this, copyright renewal should have a cap, say, 50 or 70 years. This will prevent corporations from profiting off of a work ad infinitum, never letting the artistic public get their hands on it to share their own creativity.
Copyright law is not perfect, and I don’t think we will ever be able to make it perfect for every artist in all cases. With more flexibility however, artists and the public have more chances to make copyright work for them.
In 2012 the Canadian government passed a series of reforms to the Copyright Act, which included a provision that the Act be reviewed every five years. In December 2017 the Canadian government ordered the first such review of the Canadian Copyright Act (Geist, “Copyright”) and we can expect the committee in charge to suggest significant updates and reforms. As a future publisher, I want to identify and test some of the underlying assumptions that inform Canadian copyright law so that I can better assess the coming changes.
Jay Makarenko describes a copyright as “a legal recognition of a person’s natural right of ownership over the things s/he creates.” Given that, this strikes me as the most basic assumption underlying Canadian copyright law:
Assumption 1: An individual has a “natural right of ownership over the things s/he creates” (Makarenko).
This notion of a natural right derives from the concept of droit d’auteur (Younging 57) and is baked into our legal conception of copyright. It explains why copyright is conferred automatically as soon as an idea is given original expression, not conferred by laws. Canadian law assumes this natural right of the individual creator and tries to balance it with “public freedoms” (Younging 58) as well as the many social, cultural, and economic benefits to be gained from a robust and representative public domain.
This view of individual ownership of original expression is not universally accepted. Some view “intellectual goods” as “social property” (Makarenko), arguing that “one individual cannot make the claim ‘it is mine, because I made it.’ The reality is that society … participated in the making of the work and, as such, the work cannot be claimed as private property by one individual” (Makarenko). If this is so, it would seem that individuals have no natural right over our original expressions, because they are not in fact original.
But rejecting the natural rights view in favour of this social property view would not necessarily force us to say that copyright is illegitimate. Makarenko explains another possible justification for copyright is that “copyright and private ownership of intellectual goods are valuable because they will bring great economic and cultural benefits to society.” On this view, creative production is incentivized because creators can sell their creations. This brings me to Assumption 2 underscoring Canadian copyright law:
Neil Gaiman challenges this assumption. He noticed that in “places where I was being pirated, particularly Russia … I was selling more and more books. People were discovering me through [my] being pirated and then they were going out and buying the real books.” Gaiman persuaded his publisher to make his work American Gods available for free for a month, even though it was still selling well; sales through independent bookstores tripled. This suggests that copyright infringement should not necessarily de-incentivize creative innovation. However, Gaiman also mentions that they only measured the impact on sales in independent bookstores, so it is impossible to conclude from this anecdote whether sales overall were affected positively or negatively.
Similarly, Ernesto Van der Sar interprets a study by Professor Tatsuo Tanaka of the Faculty of Economics at Keio University as indicating that “decreased availability of pirated comics doesn’t always help sales. In fact, for comics that no longer release new volumes, the effect is reversed.” He quotes Tanaka saying that “displacement effect is dominant for ongoing comics, and advertisement effect is dominant for completed comics.”
If Van der Sar’s interpretation is correct, then there are cases when copyright is infringed, yet creative expression is still rewarded by increasing exposure and sales. However, as my colleague Sarah Pruys has pointed out (in a private Hypothes.is discussion in my PUB 802 class at Simon Fraser University), Van der Sar takes some editorial liberties with Tanaka’s findings and ends up overstating the claim. So this anecdote, like Gaiman’s, does not constitute a conclusive rebuttal to Assumption 2.
Makarenko describes a rebuttal we can take a little more seriously:
Assumption #3: Copyright stifles the free flow of ideas.
This might happen when a copyright owner hoards their original expression, or limits its distribution by charging a fee, excluding those who cannot afford it. This keeps valuable ideas out of public access, limiting society’s resources of intellectual goods.
The case of orphan works can be said to support this assumption. Orphan works are those for whom “the copyright owner cannot be identified or located” (Harris). The argument goes that if orphan works are protected too zealously, they will be inaccessible, and the public domain will suffer. To prevent this situation, the term of copyright should be short.
It’s worth pointing out that even if you were to find the author of the orphan work, there is no reason to assume you would be granted the right to copy. Also, an orphan work is not protected any longer than any other work. Copyright for works with unknown authors only lasts for “the remainder of the calendar year of the first publication of the work plus 50 years” (“Guide”). This means orphan works might actually enter the public domain significantly earlier than works with a known author.
Let’s say a book is published in 2018. If at any point I want to copy it and can’t find the author, I have to wait until the orphan work enters the public domain in 2068. However, the only case in which a work that is not orphaned would enter the public domain so soon after publication is if the author died in the year of publication. Let’s say the author survived until 2068. Then the work would not enter the public domain until 3018. So it might well be easier to wait out copyright on many orphan works than on published works with known authors.
A work entering the public domain for everyone to copy freely is only one way that society can benefit from it. We can still use the work under fair dealing. And the Copyright Act allows for a license to be issued at the discretion of the Board if they are satisfied that “the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located” (Sookman).
This does still involve some risk in case the copyright owner shows up within five years to recover royalties. However, in 2012 the then-Conservative Canadian government passed a series of reforms to the Copyright Act. The relevant change is basically a good-faith gesture that drastically lowers the amount of damages you would have to pay if you took a risk on using an orphan work for non-commercial purposes and were later found to have infringed copyright. This change seems fair, but Bill C-11 overall was not well-received by the publishing industry, and it will be interesting to see what comes out of this year’s five-year review.
These three points suggest that copyright protection for orphan works is no less fair than copyright protection for known authors. But that doesn’t mean that copyright terms are fair; that is, they don’t refute Assumption #3.
Several of my colleagues have suggested that creators should be required to frequently extend or renew their copyright in order to prevent orphan works from being withheld from the public domain. I think this would contradict two of copyright’s key characteristics. First, that it is meant to incentivize creative innovation. Cory Doctorow points out that “giving creators more copyright on works they’ve already created doesn’t get them to make new ones, and it reduces the ability of new artists to remix existing works.” If a work has already been created, it has clearly already been incentivized; so why would we require the creator to pay to reproduce their own work?
I think the way you answer this question determines, or is determined by, how you feel about Assumption #1, the second key characteristic of copyright, which is that it is a natural right. If a creator is required to re-purchase the right to their own creation, then copyright is not conferred by nature, but by law. So to call for a copyright term that expires in the author’s lifetime is to say that there is no natural right to copy in the first place; so what is it that the author is extending?
So, if I had to choose between Assumptions #1 and #2 as justifications for copyright, I lean toward #2 and a social conception of intellectual goods. I don’t think the Canadian copyright situation is ready for any radical changes in that direction, but I would like to see the idea reflected more in copyright law.
Younging, Greg. “Gnaritas Nullius (No One’s Knowledge): The Essence of Traditional Knowledge and Its Colonization through Western Legal Regimes.” In Indigenous Editors Circle and Editing Indigenous Manuscripts workshop course pack, Humber College, 2017, Etobicoke, ON.
It seems as though there is no easy answer when it comes to copyright law. Some believe that copyright on a creation should run indefinitely, with no need to renew. Some believe that a creation’s copyright should be renewed every 5 years, to ensure that creators do not abandon their work and make it seemingly impossible for others to legally use the work (as creators cannot be contacted to give permission).
Currently, copyright law in Canada extends to life of the author plus 50 years after his or her death. Many problems arise when creators go missing, leaving orphan works behind. Individuals who want to use these orphan creations in other formats often fear persecution should they be caught using the material without permission.
While I see no problem with copyright extending to life plus 50 years after death, there needs to be a more evolved process for avoiding orphan works. While copyright need not be renewed periodically, creators should be required to “check in” with their works, acknowledging that, yes, they are still claiming the work as theirs and require requests for permission to use the material, and update their contact information if need be so people interested in using the material can reach the creator and ask for permissions. These check ins could be reflected in the cost of of registering a copyright. Currently, “filing an application for copyright registration for a work or other subject-matter in Canada via the CIPO website is $50 CDN. Filing an application by fax or mail is $65 CDN.” If a creator signed a contract to check in with their work on a yearly basis, the registration fee could be decreased, perhaps to only $25. If a creator only signed on to check in with their work every 5 or 10 years, the cost of registration would increase. If a check in was missed, a penalty fee would be charged to the creator. By having a monetary incentive, creators would likely be more motivated to not leave their works behind. Other creators who may want to use copyrighted material would no longer have to abandon projects because of M.I.A. copyright owners, or live in fear of getting sued for using orphan works.