Copyright Reform - 2007 Symposium - Center for Intellectual Property

Copyright Reform

William "Terry" Fisher
Berkman Center for Internet and Society
Harvard University Law School

Keynote Address delivered 22 May 2007
Annual Symposium on Intellectual Property
Center for Intellectual Property
University of Maryland University College
Adelphi, MD

5 Propositions on Content of Copyright Utopia
- 1. Creators of intellectual/creative products are fairly compensated
  - Utilitarian theory: necessary to stimulate production of works from which we all benefit
  - Labor-desert/Fairness theory: moral right of creator to compensation for works from which we all benefit
- 2. Opportunities to engage in creative pursuits should be widespread and works are widely disseminated
  - Semiotic Democracy
- 3. Cultural diversity in a wide array of creative products
- 4. All persons should have ready access to ideas, information, entertainment
- 5. All persons should have access to rich, empowering continuing education
Ways to Alleviate Problems

1. Reform Initiatives We Can Take Without Changing the Law at All

2. Reform Initiatives Requiring a Tweak of the Law

3. Reform Initiatives Requiring a Transformation of the Law

4. Reform Initiatives Requiring Abandoning the Current System for an Alternative System

Five Ways the Legal System Does Not Currently Allow Us to Advance This Vision

1. Proliferation of Protected Unregistered Works
- Causes
  - 1909 Regime
    - conferred common law copyright protection upon creator from moment of creation to point of publication
    - from moment of publication
      - public domain
      - federal formal copyright protection for 28 years
    - renewal
      - 28 years more
      - public domain
  - Current Regime
    - federal formal copyright protection from point of creation to fixation in tangible medium (exceptions for works-for-hire, anonymous, pseudonymous)
    - from moment of publication
      - public domain
      - life of author + 70 years
- Cures
  Creative Commons
2. Impediments to Education
- a. outmoded, clumsy educational exemptions
  - eg. Sections 114B & 118
  - eg. TEACH Act
- b. ambiguous Fair Use
  - current doctrine
    - Factor #1: Purpose and character of defendent's activity
      - commercial
      - transformative
      - shady
        
        lack of good faith and fair dealing
      - customary
    - Factor #2: Nature of plaintiff's work
      - unpublished
      - newsworthy
      - computer software
    - Factor #3: Amount of work taken/used
      - quantitative
      - qualitative
      - denominator: each copyrighted work
      - interplay with other factors
    - Factor #4: Impact on potential market
      - Struggle with definition of potential market
        
        existing market
        
        harms to the value of a product-- either the original work or a derivative product--the copyright owner seeks to market
        
        identified alternative markets
        
        traditional, reasonable, or likely to be developed markets
        
        markets the plaintiff would in general develop or license others to develop
        
        any market plaintiff would have been willing to license
        
        market created by defendent
        
        any group of people who would pay for access
        
        "value" of the work, even if there is no market
        
        ?
      - Individual or Communal?
      - Do benefits count?
      - Which kinds of harms count?
  solution: add education to factor #1 with same status as parody
- c. DMCA applied to education
  - problem recently mitigated by Library of Congress ruling on DMCA exemptions
  expand exemption: extend to circumvention for any educational purpose by film studies teachers or students
- d. overly cautious gatekeepers
  - Universities
  - Publishers
  - Insurers
  - Cures

3. Impediments to Semiotic Democracy
- Examples
  - Modified Films
    - Phantom edits
    - Batman(?)
    - dark version of "Artificial Intelligence"
    - "Shining"
    - Systems/Software for generating modified films
      - ClearPlay, Trilogy, Family Shield, etc.
      - Final Cut Pro
  - Mashups
    - e.g. Grey Video/Danger Mouse
    - Systems for remixing and supplementing music
  - Amatuer Webcasting
- Cures
  - A. Modify Fair Use
    - greater latitude for transformative works
    - less latitude for consumptive (non-transformative) works
  - B. Define "Derivative Work" narrowly
    - Mirage Editions, not Lee
    - Require fixation in tangible medium
  - C. Eliminate "Derivative Work" right altogether
  - D. Resist expansion of rights of integrity
    - Hold the line at VARA (Visual Artists Rights Act)

4. Impediments to Search Tools
- Examples
  - ditto.com
  - Google Book Search
- Cures
  - Construe Fair Use to shield Google Book Search
  - Institute/change to default opt-out rule (instead of opt-in)
    - cf. Sect. 512 "Notice & Take Down" System
    - cf. "Fence out" rules in some western states

5. Crisis in Entertainment Industry
- Background
  - Traditional Entertainment
  - Technological Destabilization
    - Via Three Related Technologies
      - Digital Recording & Storage
        CD
        DVD
      - CODECS
        MP3
        MP4
        DivX
      - Internet
        i.e. fast mass distribution
    - New Ways of Accessing Entertainment
      - Downloading
      - Interactive Streaming
      - Non-interactive Streaming
    - Benefits
      - Cost Savings
      - Cultural Diversity
      - Opportunities for Creativity
    - Dangers
      - ?
        Problem: Lawful v. Unlawful P2P (slides on...)
  - Struggle Over Copyright
- Symptoms
- Cures