Copyright isn’t a Threat, it’s a Protection

There is a big push via email and the web to rally support for a court case called Kahle v. Ashcroft, # (in this case, “Ashcroft” is the US, it has nothing to do with him personally). This case is a follow-up (of sorts, the legal points are different) to the unsuccessful Eldred v. Ashcroft, which also sought to overturn portions of current copyright law.

Kahle supporters are portraying the current copyright laws as oppressive and are using rallying cries like “Free the orphans!” in order to swing public opinion their way. “Orphans” in this rallying cry is referring to works of questionable copyright status and/or those who are still under copyright protection but whose rights owners are impossible to trace.

There are several errors in their arguments as presented to the public (I’m not going to refer to the actual legal arguments as I am not a lawyer). In fact, there are so many I couldn’t list them all without writing a book. However, I do think some of them need to be addressed.

First off, the current copyright laws, while imperfect, aren’t causing most of the problems that these supporters are portraying. The argument that rights holders are “impossible to trace” doesn’t hold water, for example. In most cases, the copyright holder can be traced. The Copyright Office itself helps in these searches.

And there are complete lies in areas on https://notabug.com/kahle/ (the supporters’ site). Claims that will certainly frighten people but, like WMD, just don’t exist. For example:

Under our current unconditional system, all works are automatically locked up — regardless of the will of the author — for the full term of copyright, which has been lengthened substantially.

“Locked up”?! No, the rights of the creator are protected and s/he gets to release their rights however s/he sees fit. If a creator wants to have his/her work freely available to the public for any use, s/he can do that.

and,

5. You’re talking about the removal of copyright “formalities” like registration and renewal. That seems like such a minor issue. Why should I care?

The move from conditional to unconditional copyright has had a number of unintended consequences. It has failed to benefit authors. It has imposed burdens on free speech and the creation of culture — burdens which have grown as digital technologies like the Internet lower the non-copyright barriers to creating and disseminating culture. It has moved copyright much closer to a collision with the Constitution.

This is patently (all puns intended) untrue--it encourages the production of art in all forms precisely because automatic copyright protects the artist from being ripped off. It *has* significantly benefited "authors" (meaning all creators/artists) by providing them a means of making a living off of their creations. To remove this protection will kill industries like independent photography and illustration. And it in no way whatsoever impinges free speech—just free reproduction of someone else’s intellectual property.

Also, in order for a copyright holder to successfully protect her/himself from infringement s/he must register the copyright within 90 days of publication (should register as soon as possible any unpublished works). Thus, a record is born. If the work is not registered it becomes extremely difficult to sue for infringement, the potential winnings are severely limited, and most lawyers won’t touch cases without registration.

and,

11. Why is it important to file this lawsuit now?

The move to unconditional copyright came just at a time when digital technologies like the Internet could enable the archiving, preservation and reuse of content at a level never imagined before.

Archiving and preservation already occur under the protections. However, reuse of content needs to be regulated and protected. Imagine if Joe Smith writes a short story and publishes it. It’s priced at $5 a copy. It has small sales until many years later when it is “discovered” by some cultural guru and suddenly it becomes of great interest. Without the protections provided by the current copyright laws, AOL (for example) could reproduce his story on the internet. Suddenly, no one needs to buy his short story—they can read it for free on AOL (and the sales Mr. Smith did have dry up). AOL, however, gets money from its subscribers and people subscribe because of the content AOL provides—like Joe Smith’s fantastically popular short story. So AOL gets more subscribers and makes even more money. Then, Hollywood gets wind of this fabulous short story and makes a film from it. Again, without the copyright laws now in place, they don’t pay Mr. Smith anything for the story, but the film goes on to make $100Million.

In the case of archives and/or libraries wanting to reproduce materials, in most cases that is already acceptable under the current laws (covered by fair use or other exemptions). However, as the Register of Copyrights, Marybeth Peters herself, recently noted in testimony before congress:

The exemption, which became 17 U.S.C. 108(h), essentially permits a nonprofit library, educational institution or archive to reproduce or distribute copies of a work, including in digital format, and to display or perform a work during the last twenty years of the copyright term as long as that work is not commercially available. Unfortunately, the terms of section 108(i) make this exception inapplicable to motion pictures, musical works and pictorial, graphic and sculptural works. I am hopeful that this error will be remedied and would be pleased to work with the Subcommittee to correct it.

(full text of her testimony available online here)

In other words, the Copyright Office itself is already trying to fix the “problem” that this Kahle v. Ashcroft is trying to use to overturn the entire law. But they don’t want to throw out the law that is working, but by closing the loophole.

If the law is overturned, creators will lose many protections. Creators are already being attacked by companies large and small (especially large) via oppressive “Work For Hire” and “shared authorship” clauses in freelance contracts. These contracts are an attempt by companies that understand the value of these works to exploit the works created but not share in the wealth generated with the creators themselves. And destruction of current copyright protections will only decrease the ability of creative professionals to financially survive while adding greatly to these exploitative companies’ bottom lines.

©2004 Leslie Burns-Dell’Acqua