You Think U.S. Copyright Law is Bad?
By Jonathan Bailey • Jan 28th, 2009 • Category: Articles, DMCA, Legal Issues
The United States definitely has its share of copyright issues.
We have a very powerful copyright lobby that, among other things, has been able to obtain a seemingly never-ending series of copyright extensions that have kept ever-older works out of the public domain. We’ve been ground zero for the music industry’s lawsuits against file sharers and were also among the first to pass the controversial anti-circumvention laws that prohibit users from circumventing DRM schemes, even for otherwise legal uses.
Yes, U.S. copyright law has its problems. But before we begin to play “The Grass is Greener” we need to stop and actually look at the laws that exist in other countries. As it turns out, on average at least, the U.S. copyright system is not that bad, at least when considering the rights and interests of users.
If you don’t believe me, consider the following points before packing up and moving abroad.
Fair Use
Fair use has its flaws, it is only a defense against an infringement and the only way to be certain that a use is fair is to be sued for it and then emerge victorious in court. However, those of us in the U.S. should be grateful that we have it as the idea is almost wholly American.
Other countries have what is known as “Fair Dealing” (Warning: Wikipedia link). Though it sounds similar and has many of the same concepts built in, fair dealing is almost always much more limited than fair use. Typically, fair dealing is limited by types of uses, usually news reporting, research and criticism.
The broad, flexible, open to interpretation fair use exemptions in the U.S. simply do not exist in most countries. Though the laws of other nations provide little extra clarity, they do, on the whole, provide much greater restrictions on use.
Crown Copyright
In the U.S., the central government is not able to hold a copyright interest in any work they produce. You can read that on the White House Web site.
This is for a lot of reasons.
- Since taxpayers paid for the creation of the work, it makes no sense they should have any restrictions on its use.
- To prevent the Federal government from using copyright as a means to prevent free speech.
- To encourage broad distribution of works created.
Other nations, however, are not so generous. In the UK, as well as some other commonwealth nations, they have Crown Copyright, and other nations have similar provisions. Even Canada has a well-established crown copyright that asks people to obtain a license to use the work.
Such licenses are never required in the U.S.
Insane Notice and Takedown
Though the safe harbor provisions has been a source of controversy in the U.S., they, over the past 10 years, seem to have been viewed as a net positive. Though there have been abused by more than a few organizations, they have also enabled the boom in user-generated content and, as the Diebold case showed, laws preventing abuse of the takedown system do have teeth.
However, as the same provisions made their way around the globe, many of the protections that make the law work in the U.S. were not included. Based on the WIPO treaty, other nations took a very different tact on the law.
Take a look at the EU. There, anyone can file a copyright complaint, not just the copyright holder. One does not have to swear under penalty of perjury and one does not even have to provide good contact information when filing a notice. Though different nations may have added elements of this back, a 2004 study found that 70% of hosts complied (PDF) when being demanded to take down a public domain work.
The study, legally, could not have been performed in the U.S. as the DMCA would have made it dangerous to file false notices, even for research.
Conclusions
Does the U.S. have it’s share of copyright problems? Absolutely. If we look at it strictly from the point of view of user’s rights, the U.S. certainly has a lot to worry about. Though many of the more controversial aspects, including anti-circumvention, have made their way elsewhere too, the U.S. does have its share of relatively unique copyright issues.
Of course, the most unique of those issues impacts copyright holders. After all, we’re the ones that have to register with an outdated and outmoded copyright office before we can sue for infringement. We are also one of the few countries that does not grant copyright holders moral rights protections in their work, lessening creative control and naming rights.
The U.S. is no copyright utopia, nowhere near, but it isn’t as bad as many make it out to be, at least as far as user rights go. Simply put, the grass isn’t much greener anywhere else and if we’re going to update and improve copyright law, both for rights holders and users, it is going to have to be an international effort.
This country-by-country approach is pure folly in the Internet age.
 | Protect Your Work. Subscribe to Plagiarism Today via Email or RSS. |
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.
Email this author | All posts by Jonathan Bailey
The Rule Against Perpetuities Supports 100 Years of Copyright Protection After the Death of the Author
The “never-ending series of copyright extensions” lasts for approximately 100 years after the death of the author (or 120 years from the date of creation of the work if an entity other than a human being is the author). Yes, this seems like a long time. Yes, J.K. Rowling’s great-great-grandchildren will benefit from the HARRY POTTER derivative works and sales made under US copyright law. Yes, derivative works can keep copyright alive far longer than the copyright will live in the original works. But that’s ok. Authors should have full benefit of their works, …
To read further, see IPAttorneyFirm’s blog.
First off, to defend myself a bit, I was writing this from the perspective of someone solely interested in user’s rights. They are the ones that typically do the most lamenting about how flawed our system is and my goal was to show that users have more rights in the U.S. than they do in other countries.
With that being said, I want to add a few thoughts to your article.
First, regarding copyright extensions. I am the first to agree that rightsholders should have the right to benefit from their work (would be kind of silly to run this site without that belief). I admit on many issue I do lean to the copyleft side, but I do support lengthy copyright terms within reason.
The problem is that, when our nation was founded, we started with a 14-year term renewable for another 14 years. Now it is up to life plus seventy (as you pointed out that is well over a century in most cases) for works of personal authorship and 95 years for corporate authorship. Though it is great that photographers and writers can will their rights to their great grandchildren, this creates a slew of problems.
First, we now have copyright terms that long outlast the material it is printed on. This has created an orphan works problem that is now being legislated. This has more potential for harm to copyright holders than a reasonable copyright term.
Second, the term is not being extended for the greater good of encouraging artistic and scientific works, the reason given for copyright law in the Constitution, but toi protect the interests of a small number of largely wealthy copyright holders. The debates in the EU over copyright extensions have largely reflected this.
A healthy public domain does a great deal to support creativity and science. Intellectual property is indeed property, but it is not property, as you say, like a physical object. Otherwise we would be using the term “copyright theft” in the literal, not figurative sense.
Copyright is a government-granted monopoly and, I feel, a very good and important one. However, without limitations, this monopoly can consume everything, making it so that hardly anything, no matter how seemingly unique, is not an infringement.
Second, regarding the RIAA lawsuits. Though I don’t doubt that, legally, they have the right to do as they have and I support them having that right, the problem is that these suits have been a PR disaster and other rightsholders have been feeling the pinch.
These lawsuits have done nothing to slow down or stop file sharing but have exposed a series of legal flaws with the RIAAs arguments and turned a great deal of public opinion against the record industry. These lawsuits were a classic Pyrrhic victory, they won the suits but have lost the war. Seeing the RIAA sue tens of thousands of people including grandparents and children did not help them or the rest of us.
If you read through Twitter or other services, you’ll see that copyright might was well be a four-letter word. Many people despise copyright law and the RIAA is part of the reason. Protecting copyright, even against plagiarists and commercial use, is seen as a negative thing in many circles.
Sure, every generation had its group that wondered if copyright law should exist at all, but this generation has been emboldened, has rallying cries and has a decent argument (at least on paper) for a full-scale assault against copyright.
Finally, regarding anti-circumvention, yes I am expressing an opinion on the law. But it is also one that is widely held. Since it wasn’t the point of this article to start a debate on this topic, I didn’t cite any sources, though I likely should have linked out to this report by the EFF.
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca
Though the law says that it does not impede upon existing rights, by blocking access to material (save within rare exemptions) it creates a slew of problems. Though I grant that the EFF is not an unbiased source in this matter, its list of unintended problems caused by anti-circumvention is long and painful to read.
In the end, I think it’s fair to say, as you mentioned in your article, that we agree on the overall conclusion of this piece, but there are a lot of problems with U.S. copyright law, especially if one views copyright as an attempt to balance the rights and interests of copyright holders vs users, which is what the law should be about…
Thank you very much for your comment.
I appreciate reading your rational approach to this issue but I must take issue with the basis of it—your argument in defense of current US copyright law primarily rests on relative comparisons—and no matter how pragmatically advantageous they seem, they are all still essentially equivocations. In other words, the “fairness” of copyright law should be measured on the elements that make it up, irrespective of copyright laws elsewhere, be they more strident in other countries or not.
And with regard the specific argument which posits that US Government cannot own copyright itself, is fatally flawed and not entirely correct. Ownership and control can be legally argued as virtually the same thing and although government does not own copyright on it’s own, it does control several copyrights in its possession—the CIA’s seal, for example. It is prohibited to use or copy the CIA’s seal without explicit consent. The control of this “right of use” is exclusive and permanent. These are the essential tenants of ownership, and I suppose, it could theoretically charge for the “right to copy” the seal if it choose to.
The heart of copyright, which is an exclusive right that is extended by the government to an artist (orginally) to reproduce and sell a substantively original work, is just that – an exclusive right extended for a period of time – after which time the work is expected to convert to the public domain.
And though you rightly point out this “period of exclusivity” has steadily lengthened over time through ever more restrictive copyright laws, you must understand that this has been done at the expense (quite literally) of the public’s interest; to the degree that the public’s interest in this arrangement is often seen as subordinate or secondary.
This notion is antithetical to the very idea of how cultural works are shared and appreciated by society in general; and contrary to how copyright law was originally conceived. Why do you suppose that public domain is deem something important enough to have been woven into copyright law, in the first place?
Copyright wasn’t meant to deprive or even prevent an artist from creating or owning his own works. It was meant to be a lease bestowed upon the artist so that he or she could benefit commercially from his or her works. The trade off for being granted this privilege is balanced by the assurance that the public would also benefit by the arrangement as well. But at current timelines, works don’t enter the public domain until well after many of them have diminished greatly in value—particularly to the generation contemporaneous to the work and who would relate to the work the most. How is this sort of arrangement balanced in a way that benefits the public in way that makes this reasonable trade-off?
“Fair use” is a measure that, in part, reflects the acknowledgment that inspiration does not spring from a vacuum, but comes from the works of others. It is meant to accommodate other concerns, of course, but sadly its scope has been similarly diminished over time as well.
The bottom line is, unless we come to a more rational, balanced perspective on this legal arrangement, we risk depriving ourselves of the very things we point to when we talk about our culture. This is the tragedy at hand. If other countries are as unbalanced or more so, they jeopardize the richness and wealth of their shared culture as well.
Remember that copyright is commercial arrangement over creative works of art, but these works are not simple door nobs or dinner plates, but are things that often touch us and give our lives meaning. To presume that they are merely functionary, is to deny the an important aspect—and in today’s environment, many copyrights, and therefore the control, of these works are in the hands of middle men; not those who created them, nor those who appreciate them.
The often misunderstood fallout of what may happen is that the technical capacity of the digital age makes it possible to remove the middle men—which is something media recording companies woefully underplay. But they may likely find themselves quite dispensable, in the end. And frankly, I would be very careful of what I am doing now, if I were in their shoes. A time come when no one will (because they don’t need to) sign over copyrights to them.
Now, someone… please play something sweet and low for me, and whispered to me in a slow sultry voice. I wanna dream something beautiful, I want something I can dance to.
When it comes to the internet, I think that fair use needs to be more clearly defined world wide. I’m not sure if that’s fessible or not. I post copyrighted material on my online profiles and I try my best to make a claim for fair use and even then I could have that stuff taken down for copyright infringment, that scares me a little. For video websites such as Youtube and livevideo, it’s very hard to come out with 100% original material.