Why Your Copyright Protection is Second Rate
By Jonathan Bailey • Jan 11th, 2008 • Category: Articles, Punditry
Two weeks ago, I told the strange truth about the FBI Logo. It was a tale about how the FBI, an organization funded with taxpayer dollars, created a logo and warning solely for the benefit of the RIAA, MPAA and similar groups.
Meanwhile, the rest of Americans, as well as the vast majority of copyright holders, were threatened with prison if we used the logo without permission.
Though the commenters to the original piece were worried about the nature of the logo and the preferential treatment that the government was giving big copyright, the FBI logo is relatively harmless abuse. It hasn’t done anything to stop piracy and, aside from being a slap in the face, has very little meaning to your average copyright holder.
However, the FBI logo is just a microcosm of the larger problem. The United States stands alone in the world as a country that has created a copyright class struggle by unfairly stacking the deck against your average rightsholder.
In short, the entire copyright system in the United States is tilted to favor big copyright. It makes possible both the $222,000 Jammie Thomas ruling and the recent misappropriation by Fox Sports of a cherished family photo.
This system ensures that individuals have almost no protection of their works while corporations are free to sue for massive amounts of money. The scariest part of all, the process only requires two simple laws, both of which should have been fixed a long time ago.
Registration Requirements
When the United States joined the Berne convention in 1988, one of the supposed requirements was that the U.S. was supposed to do away with all copyright formalities, making protection automatic upon creation of the work.
However, the United States dodged that requirement. Though they did make protection automatic upon fixation, it was decided to still require registration before either suing in a Federal court or obtaining statutory damages and attorney fees.
So, while you technically have all of the same rights on a registered work as an unregistered one, you can not enforce those rights without first paying the $30 or $45 fee to register your work with the United States Copyright Office. Ideally, this registration needs to be filed before the work is infringed to ensure that you can claim the maximum amount of damages.
The problem with this is very simple. Most individuals can not afford to register every single work and most don’t have time to file for registration before posting it online. Of the photographs, blog entries, stories and even novels posted on the Web, only a tiny fraction of a percent are actually registered.
Big copyright holders, such as the RIAA and MPAA, have no trouble with this requirement at all. When your spending thousands or even millions on a single copyrighted work, the registration fee is barely noticeable. Their distribution model also makes it possible to register before the work is seen outside their studio.
The result is that only a handful of copyright holders in the U.S. have access to our courts. Without registration many cases are thrown out and works registered after the infringement are, generally, only eligible for actual damages. Without statutory damages and attorney fees, such cases are rarely worth pursuing.
But when big copyright holders show up in court, they are able to sue for very big damages. Not only does the law make it possible, but since such cases rarely reach courtrooms, even these days, judges and juries have little reason not to give big judgments.
In short, one Jammie Thomas ruling makes sense, but if every copyright holder who was infringed could make that much or more, the system would fail. Both the law and the judgments would undergo something akin to a market shift and more reasonable rates would have to be reached.
Unfortunately, we don’t have that kind of access. Not only does this keep rulings artificially high, but also enables them to take copyrighted works with relative immunity. Since we have no effective legal recourse, they can do, in many cases, exactly what they please.
Moral Rights
Another element of the Berne convention that the U.S. did not implement was the issue of moral rights.
In most countries, including Canada, artists have rights to the work that go beyond traditional copyrights. These include the right to attribution and the right to protect the integrity of the work, even after it has been sold.
In many countries, especially in Europe, these rights are inalienable, meaning they can not be bought, sold or given away. You can agree not to enforce those rights, but you can never outright surrender them.
Moral rights are an important protection for individuals in other countries. It means that, even when sells or gives way some or all of their copyright, the work will still bear their name and continue to work for them as it is distributed and copied.
Many see it as an anti-corporation set of rights as it protects the creator of a work against the publishers and distributors that purchase or acquire copyright interest in the work.
According to the United States, there was no need for specific moral rights legislation since much of it was covered under other statutes, specifically slander and libel.
But despite that claim, the U.S. did implement some moral rights in the Visual Artists Rights Act (VARA). However, those rights were limited in nature and restricted solely to certain kinds of visual artists. Writers, musicians and other copyright holders still have no concrete moral rights protection.
This means that, once you have sold commercial interest in your work, there is little that you can do to protect it, even if a third party comes along and plagiarizes it. This greatly limits your control over your name and reputation while putting control over the work in corporations with very little motive to defend your work.
However, since moral rights restrict what a copyright buyer can do with a purchased work, even if only slightly, corporations have typically opposed implementing any serious moral rights regime.
This, in turn promotes a “sell and forget” system that encourages copyright holders to sell away their works without questioning how they will be used once they are bought. This kind of complacency serves big copyright holders well and ensures that they are the only ones actively enforcing rights in the courtrooms.
Fixing the System
The solution to the problem is simple, fully implement the Berne convention standards, both in law and in spirit. Other countries have had these items in effect for decades and have not seen the kind of copyright insanity we see here in the United States.
Yes, there are some oddities in foreign laws, but overall they do a better job of protecting artists, the people copyright is supposed to protect, without trampling on users.
Basically, the U.S. copyright system was built from the ground up to be an almost purely commercial system. The rights of copyright holders are expressed almost exclusively in terms of dollars and cents, not creativity and art.
This has lead to the rise of not just big copyright as an entity, but a two-tiered copyright system. Even as more and more individuals are self-publishing and becoming copyright holders with a legitimate stake in their own work, albeit not always a financial one, the system does not treat them as such.
If the United States fulfilled the promises it made decades ago, this issue would be significantly lessened.
Unfortunately, given the grip that big copyright has on our current legal system, it seems unlikely that such a change will happen any time in the near future.
Conclusions
Before we can talk about copyright reform or adjusting the rights that copyright provides, we need to first make sure that all rightsholders are treated equally.
Simply put, any copyright reform that only impacts one kind of rightsholder is no more fair than the current system. Furthermore, as long as big copyright has all of the power and all of the court access, it is very hard for the majority to be heard.
But since the current system prohibits most copyright holders form leveraging their rights in a courtroom, it is easy for the corporations to cull the “us vs. them” system to obtain newer and stronger laws that benefit them alone.
Rather than looking at us as content creators and copyright holders, the system treats us primarily as consumers, even if we are producing over 99% of the copyrighted works available.
Once we have equal access and an equal voice, then we can talk about fixing the system. Without balance between the classes of copyright holders, there can be no balance between creator and consumer.
This class warfare greatly behooves big copyright. It is time to stop it and the way to start is to demand your own rights equal to those that the RIAA and MPAA gets.
It seems a strange way to reform the law, I admit. But is the only way we are going to be heard and taken seriously. Until we have legal power behind us, we are simply too easily ignored.
Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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[...] Today - Why Your Copyright Protection Is Second Rate This means that, once you have sold commercial interest in your work, there is little that you can [...]
This is a great post Jonathan! I strongly favor moral rights in copyright and want to do my part to help change things. It’s a true reflection of US corporate greed. In this country, the people are supposed to count.
The problem with moral rights is that they can in effect end up destroying the public domain. The problem is with derivatives. The family of the dead artist can argue that almost any adaptation they don’t approve of. So if say you wanted to do a stage adaptation of a Dickens work you would probably have to clear it with his estate.
Then you have the problem with free licenses. CC-BY-SA runs into issues under say French and Japanese law since in theory it allows almost any type of derivative which kinda conflicts with their legal system.
Moral rights also run against the general trend of common law in that they interfere with contracts.
Whatever: Though I normally don’t allow anonymous comments (those without a valid email) I did want to take a moment and address this.
First, moral rights can only poison the public domain if they are perpetual. In some countries they are, in some they aren’t. I would rather them not be for much this reason. In many countries the moral rights on a work expire at the same time as the copyright. I don’t see that as a terrible slight considering that the author has been dead for seventy years (at least in the U.S.)
The problem with free licenses can be dealt with by simply requiring the person to license their work to waive their right to enforce their moral rights. Though you can not surrender your right, you can waive your option to enforce them. That is a standard element of some contracts signed in the EU and other countries.
Finally, you don’t say how it interferes with contracts but, as I said, since you can waive your enforcement rights, though not the rights themselves, there is little way moral rights can interfere with contracts. A “standard” contract might require a new clause or two, but so long as we don’t make moral rights retroactive, there should be no problem.
After all, every other Western nation in the world has had moral rights for decades and has gotten along just fine. We literally have dozens of nations we can use as models for this.
I do, however, agree that there is a greater need for clarity and consistency in the area of moral rights and enforcement, this is something that would have to come from an international push.
I think that the attribution rights would dovetail better with copyright, and leave the moral issue to flow from the contactors. Also if we adopted the non registration approach, and then left statuory rights to those that have registered, or when the Author can show proof of marking the properties with copyright notice before delivery. I have been waiting for 3 registration certificates for over 1 1/2 years since I filed for them. Can you imagine how long it would take, and how big the agency(budget) would be if every photographer filed a registration for each and every photo they created.
Below is a conversation I am having with a law professor regarding attribution, and moral rights.
Lloyd Shugart
Photographer
—– Original Message —–
From: “Lloyd Shugart”
Sent: Thursday, January 10, 2008 2:35 PM
Subject: Re: Attribution and Law….I am no Raving Lunatic
> Hi xx,
>
> To me the most elegant solution is the most simple form…starting with
> intent…and then only expanding it as required, much like making a
> photograph not just taking a picture. You start with the subject, and then
> only adding elements that support…with out detracting the original intent.
> If someone goes to a field of tulips and “takes a picture” they usually end
> up with an image that has so much information in the image, that it fails to
> succinctly convey the intent, thereby consternation. Now if one goes to the
> field to “make an image”, they determine the intent…and isolate the
> message, and begin to add the elements that convey without detraction. That
> is the difference between a making and taking an image, or creating laws
> that then become non-relevant or bastions for conflict.
>
> I think that same goes for attribution….and since we are speaking in the
> context of copyrights, then the same can be done. I don’t believe that
> anyone can legislate morality to the masses. So in the context of copyright,
> attribution is to the author/owner constrained only by the intent. So in
> simple, the default is to the author(s), until it becomes a work for hire or
> corporate work. This solves many of the fair use, and orphan works
> attribution issues, it also lends to the aid of stopping outright copyright
> theft…(I didn’t know it was copyright or who the author/owner is/was).
>
> The nuances should be left to the contractors of rights that flow from the
> author/owners intent, succinctly with a default right to attribution until
> it is released much like the exclusive license/non-exclusive license. I am
> not advocating the theory of moral rights…just attribution as it relates
> to copyrights…in an effort to combat the future erosions to those rights,
> within the intent of the copyrights laws. This is especially of concern as
> we move fully into the digital age, where most copyright properties will be
> created and reside.
>
> This is a link
> http://www.wipo.int/edocs/mdocs/enforcement/en/acmc_2/acmc_2_1-part2.html
> that I am sure you are familiar with, to developing ideas back as far as I
> can tell in early 2000, addressing some key issues. I find it really
> refreshing to read that in an historic respect, and how it relates to today.
>
> You are an important voice in the future of the values of copyrights and the
> coming laws and ideas surrounding copyrights, so I felt it important to
> engage you, I hope you don’t mind.
>
> Lloyd
>
>
> —– Original Message —–
> From: law.georgetown.edu>
> To: “Lloyd Shugart”
> Sent: Thursday, January 10, 2008 1:08 PM
> Subject: RE: Attribution and Law….I am no Raving Lunatic
>
>
> Thank you for your thoughts. I agree with attribution as a moral norm, but
> believe that, as with many aspects of morality, law is a poor enforcer. >
> Georgetown Law
> law.georgetown.edu
>
> ________________________________
>
> From: Lloyd Shugart [mailto:studio413@qwest.net]
> Sent: Thu 1/10/2008 3:19 PM
> To:
> Subject: Attribution and Law….I am no Raving Lunatic
>
>
>
> November 2007
> Naming Rights: Attribution and Law
> Associate Professor of Law
> Georgetown University Law Center
> law.georgetown.edu
> 2007 Utah L. Rev. 781
>
> Hi xxx,
>
> I just want to engage you in a couple of thoughts in and regarding your
> paper. First and foremost, I think that you seriously copped out of the real
> issues…either because they don’t tend to agree with your own thoughts, so
> are highly prejudicial, or you didn’t want to take the time to explore the
> real issue.
>
> Let me say that I think that your whole career, and credibility are a direct
> results of attribution…Without attribution your current paper would have
> been impossible to research and write to the extent that it is, and even if
> you would have been able to complete such a paper. It would not have been
> credible, lacking any form of attribution, including the credibility of the
> many that you quote. As a matter of fact it is highly likely that you would
> not even have the career that you have without attribution, because you
> wouldn’t have been able to establish credibility…which in turn creates the
> vehicle to monetize your work, especially without copyright protection. I am
> not implying the work you cerate has no value…to the contrary….I am
> saying that the value is a direct result of the market, because of copyright
> protection and attribution.
>
> As a working artist I can tell you that copyright protections and
> attribution are at the center of “Fire of Genius” and “Desire to Create”,
> at any of the endeavors of
> creativity…words…film…pictures…paintings……………… For
> without protections and attribution, the desire to create would soon be
> overcome by the need to provide food and shelter to ones own, and
> family…thereby extinguishing the flame. As without…there would be no
> market, nor ability to generate said source and ability to fund those
> desires. As the old thieves saying goes “Why buy the milk from the
> farmer…when you can just go to the field, under cover of shadow and gain
> all your needs at no cost”.
>
> I truly believe that at the center of desire for more copyright protections,
> that it is not born out of greed…but need. The real issue is ethics on a
> personal level, based first on self-respect and respect for others and their
> properties…both intellectual and real. If one didn’t have to depend on
> this lack of respect then we wouldn’t need even a fraction of the laws that
> are on the books today. Lacking a vehicle to magically create this respect
> in everyone…laws, and enforcement are the only answer. As a firm believer
> in laissez-faire…I want the least amount of intrusions as possible…but I
> also recognize in reality, that what is required is born out of need.
>
> Now if you look at every legitimate suit for copyright infringement….there
> are thousands that are dismissed or ruled against not because there wasn’t
> true infringement…but because of some form of technicality, or improper
> legal representation, thereby twisting the reality….This doesn’t even
> begin to account for the real numbers of infringements that go
> un-prosecuted, and un-compensated. While, I recognize the need of the
> various gamesmanships that are part of our legal system to ferret out the
> unjust claims…if these judgment calls fell on this side of what they are
> designed to protect, and shift the burden to prove or justify the lack of
> infringement…then I believe, that there would be fewer who tested the
> boundaries, and we would have more respect…with fewer laws. Which in the
> end would lead to more properties that are available at lower costs to all,
> as a result of a greater market willing to compensate. Remember at the core
> of Capitalism is supply and demand, and works the same for intellectual
> properties as in any other commodity.
>
> xxx, while I think that you endeavor to think around the issues and
> develop ideas that further your desire to create more availability of works,
> if you would also drop from your camp, and join the other side on an equal
> thought provoking campaign…you would also create a higher value work
> product….that truly serves your own goals.
>
> I am interested in your response.
>
>
>
> Best Regards,
>
>
>
> Lloyd Shugart
Of course, the problem is that attribution really is not what I consider a purely moral issue. It is a moral issue in the legal sense, meaning that it is a social norm not enforced by law, but it is not a moral in that there is an injured party.
For example, one might consider me immoral if I drink on weekends at home. However, there is no victim. If I drive and put people’s lives in risk or injure someone, then there is a victim and the law steps in. The classic adage of the government being there to protect us from others, not ourselves, comes into play.
On the flip side, if someone copies my work but fails to attribute it, that injures me by depriving me the reputation benefit and the readership. In that way, I kind of regard moral rights as a misnomer. Yes, they are moral rights in that following them is the moral thing to do, but stealing cars is immoral too.
Anyway, you’ll have to let me know how the dialog continues, I’ll be interested to hear. Thank you again for posting!
[...] as we have discussed before, the registration system does not fit neatly with the realities of the Web and even their new electronic system does not bring the service up to modern [...]
[...] they realize that there is very little chance of them being sued. Though much of this is due to the nature of copyright law in the United States, one would hope that there would be other methods of holding hosts accountable other than lawsuits. [...]
Hi J, I’ve been a past commentator, specifically asking you about copyrights when people in other countries take articles and simply translate them into different languages. You’ve been extremely helpful, and I’ve always felt like you were on our side. I read this because I just don’t see how it’s possible to register every single article when the cost (while not exorbitant) cuts into the fee I earn per article. Plus, what happens if I register an article in the U.S. and the infringement occurs in Greece, where I now work, or Australia?
My site is registered in the USA, but I write from Greece. This week has not been a good one, plagiarism-wise. I first found the Consulate General had lifted two of my articles (or at least, that’s all I’ve found so far) without attribution or permission, then a local Greek newspaper lifted a different article from my site without even mentioning where they took the data and text featured on a full page of their Sunday edition. Beyond the first sentence insulting Americans (which I am), the article is simply a Greek translation of my text.
Do you have any specific advice on confronting a diplomatic mission in Australia?
I have a clear copyright notice on my site and can prove they belong to me, but none of these articles is registered and I’m not sure that would necessarily help. Would love to receive your input either here or via e-mail. Many thanks in advance for reading this and any help you can dispense. If you don’t have time, I totally understand because time is a precious commodity.
I might be able to help you but I would need to see the URLs involved before I could say much of anything. Please email me at jonathan at plagiarismtoday dot com and I’ll see what I can do.
Hope I’m able to help.