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Mark Fischer on Copyright in the Digital Age
Posted on Jan 30, 2009
Lawrence Lessig, now back at Harvard Law School after years as a Stanford Law professor and lawyer, is uneasy about copyright. In his new book, “Remix: Making Art and Commerce Thrive in the Hybrid Economy,” Lessig argues that current U.S. copyright laws stand in the way of their stated purpose—of encouraging creativity. But, what, one may ask, is creativity anyway? Is it the original inspiration of Melville’s “Moby Dick”? Or is it a DJ’s playlist of electronica? Or a kid’s Machinima video? Lessig seems to believe that all are equally creative. How should the very notion of copyright evolve in this new context in which everyone is thought to be a creator and everyone dreams of being an Internet star?
The so-called copyright industries (such as record labels, movie studios, book publishers and newspapers) were, in a sense, precocious about feeling the pain of economic turmoil. The agent for change is a familiar one: the Internet. We do think of ourselves of being creative—even if it’s as simple as using Photoshop to alter an image we shot or using a Flip video cam to record a wedding. We can all express our creativity internationally now in what is commonly called “user-generated content.”
It’s old news that technology has given us wonderful tools to create content, to copy the content of others, and to distribute content (yours, mine, anyone’s) worldwide. What Lessig is most concerned with, however, is the ability to manipulate (or “remix”) and distribute content. For example, you can upload on the Internet your video of your 3-year-old dancing in combination with Prince’s music and W.H. Auden’s poetry. Maybe the world will instantly love the combination of diverse elements, maybe not. What is important is whether you have the right to remix Prince’s music or Auden’s poetry free of charge or even any acknowledgment.
The Internet’s immediate international distribution capability changes everything. A remixer confined to the untethered laptop on the kitchen table isn’t going to affect existing copyright law, the neighbors or the world. Still the question remains: If the technology to remix and distribute content already exists for us (and it does), is copyright a nuisance standing in the way of the future or does copyright have value? Lessig’s answer seems to be “yes” to both.
How best can legislators change copyright law so that it encourages creativity by remixers and doesn’t stand in its way? Lessig draws a distinction between “amateur” remixes (which he argues should pretty much be unencumbered for free use) and professional remixes (which should be subject to copyright law, albeit a revised copyright law that is harder to enforce). It’s a difficult distinction to maintain in a practical sense, though, because so many of the well-known Web sites that host user-generated content (remixes or otherwise), like MySpace, are commercial entities.
Professional authors have to work for food—that is, unless they have day jobs, perhaps as professors, lawyers or insurance executives. The number of brilliant creators (academics excepted) able to thrive in the twin endeavors of both art and day-to-day unrelated commerce is a small club (Charles Ives, Wallace Stevens come to mind; Madonna and Jay-Z’s business acumen is largely directed at the music business itself). Quitting your day job doesn’t guarantee creative genius, but it surely nurtures it. If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?
It isn’t cool or fashionable to say it, but copyright law has been a roaring success (at least up to the past decade or so). One example: The sensational era of popular recorded music from in the 1950s until around the end of the 20th century has enriched us all (yes, including record companies, artists, music publishers and songwriters). The system actually worked pretty well, pre-Internet. Today, the copyright system is in need of real change because we behave differently.
Lessig illustrates well how in the past we were in a passive Read Only (“RO”) culture; in other words, the public consisted of readers, not creators. Today, he argues, we are also in a Read Write (“RW”) culture, in which readers are both passive and active as creators. He believes that the RW culture doesn’t compete with or undermine the market for the underlying works. That’s sometimes true, but not always. A remix could capture the public imagination as much as does the original. If remixers are creative—and that’s Lessig’s core point—why wouldn’t they ride others’ works to fame and (maybe) fortune?
The RW culture gave the “content industries” control over means of sharing content. Lessig notes that open-source software and Wikipedia have been achievements in innovatively sharing otherwise protectable content. These are, however, voluntary contributions of content to the common good. The remixers, on the other hand, unilaterally copy and modify the content of others.
One thing missing from Lessig’s book is sufficient acknowledgement and encouragement of the role of the original creator. It’s the creator’s inspiration that makes it possible for a remixer to remix. Even if one believes that there can be only seven basic underlying plots, a remixer who changes half of someone else’s book or most of the lyrics in another’s song isn’t the same as an originator. (In trying to quantify a remix, Lessig defines it, in some contexts, as a “transformative work,” echoing a standard some courts have used to help determine a question of “fair use.”)
Lessig also doesn’t appear to acknowledge the desire of originators to protect their works from distortion. In the United States creators (endowed with the most important word in the entertainment business—leverage) can via contracts protect (to some degree) their integrity as creators and their work against distortion. Without leverage, U.S. creators have little protection. In the United States we have virtually no droit moral—the moral rights that in some countries, notably France, protect the integrity of an artist and his or her work against distortion, among other things. This point matters because in a world where remixers can harvest the works of prior creators without permission or without payment of a fee, the original creators don’t just lose out on money—they lose out on asserting control over their works.
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