Punditry: Rational Copyright Reform

Copyright law hasn't changed drastically in centuries. Though the law has been updated dozens of times, has become virtually global due to international treaties and has been regularly updated for new technologies, it's mainly just tweaks and new expressions of the same rights.

Even attempts to reform it, such as the DMCA, just take the same rights to new extremes, They fail to take a look at the role copyright plays in society, how the law is being used today and what changes would provide the greatest benefit to the largest number of people. The engine of copyright reform has moved slowly but steadily down the same track.

Today, it's reached a point where it is almost completely antiquated and out of touch. It fails to protect critical rights while strictly protecting others. it fails both artists and end users equally all the while serving only the interests of a landed minority that can truly profit from it.

The creation and distribution engines have changed and it's time for copyright law to catch up. What might have worked a hundred, fifty or even twenty five years ago is no longer valid today. 

It's time for a change.

A Brief History

Though, originally, copyright law was intended as a means of censorship, it quickly evolved into a tool for writers, artists and publishers. It's goal, as the name would imply, was to prevent unauthorized copying of a work or to protect one's right to copy.

After copyright law stabilized, its uses generally fell into one of two functions: To protect creators from publishers (and other creators), and to protect publishers from other publishers.

Of course, in those times, the problem was straightforward. There was almost always a distinct divide between the people who created new works and the people with the means of distribution. Poets, by in large, did not own printing presses. Artists needed some reassurance that the companies they were approaching wouldn't simply run off with their works cutting them out of the loop. Meanwhile, corporations needed protection from one another to ensure that the one who fairly paid for a work would not be undercut by someone who just created their own copy of it.

The public, by in large, was never impacted by copyright law. Unless one owned a creative work or a means of distribution, there was no need to bother with it. People purchased books, records and other items without giving a second thought to it.

It was only in recent decades that technologies such as magnetic tapes and photocopy machines gave the end users any power to duplicate with reasonable quality and speed. However, even then, copying was still very inefficient, expensive and almost useless for mass producing works. Though movie and audio bootlegging was common, it was generally restricted to a handful of copies for personal use and, perhaps, a few friends. Very few pirated on a massive scale and most of those were in it for profit. Also, many were eventually caught and punished.

It was the digital revolution that changed everything. Copying content became fast, free and easy. Seemingly overnight the lines between users, creators and distributors were erased and everyone found themselves doing a little of all three. The waters became muddied and very stormy. File sharing made it possible for individuals to distribute massive amounts of illegal content instantly, plagiarism and content theft became rampant on the Web and, in short order, lawsuits started to fly including the famous RIAA lawsuits.

What started out as a simple problem has grown infinitely more complex. The clear lines have been blurred or erased and the tools that solved yesterdays problems no longer work today.

If things are ever going to get better, there will need to be drastic change and soon.

Baby, Meet Bath Water

With the need for copyright reform clear, the problem becomes finding a middle ground.

The debate about reform is often dominated by two very vocal extremes. The first feeling that copyright is completely obsolete and should be abandoned. The second feels that copyright is either working fine as is or needs to go even farther than it already does.

The first group, to use a cliche, wants to throw the baby out with the bath water.  While copyright law clearly has problems, it is both impractical and unnecessary to completely discard it. The second group, on the other hand, turns a blind eye to the obvious changes that have taken place both in our culture and technology and wishes to keep plodding the same course even as it becomes less and less applicable.

Neither option is acceptable and there has to be some kind of third solution, a middle ground.

To do that though, we can't paint copyright law with broad strokes, we have to realize it is an imperfect law created in a much different time. Though some of it still applies, much of it doesn't. It is neither an evil villain crushing freedom nor a champion of the creative. Rather, it is a little bit of both.

The trick then becomes, not to battle over copyright law itself, but to look at reforming the broken parts of it. 

Room For Improvement

Here are just some of the major changes I would recommend (more to come at a later date).  

Term of Copyright: The amount of time a copyright remains valid has been greatly lengthened over the course of history. The current term of copyright in the United States, for most works, is the life of the author plus 70 years.  Compare that to term of just 28 years (fourteen years plus a fourteen year extension) back in the 18th century.

Today's copyright protection lasts an unnecessarily long period of time, does little to promote the creation of new works (unless artists are now creating material post-mortem) makes it very difficult to discover when a work is released into the public domain. After all, one has to figure out who the author is, when it was created (to find out which term limit it falls under) and when the author died. 

Copyrights need to expire after a set period of time and that time needs to be set as short as reasonable. While this will be the source of much debate, it would likely be easier to scale back the copyright term rather than create a lump change. A 100-year term would easily outlive the the author of most creations and could be scaled back over time until newly created works enjoy a much-shorter period of protection, perhaps one as short as it was originally or less. 

Fair Use: Fair use was codified into law with the 1976 revision to the copyright act. Since then, legislation such as the DMCA and court decisions have whittled away fair use rights to the point that they are almost meaningless outside of the newsroom and the classroom.

Worse still, fair use is an ambiguous right based upon a confusing paradigm. Even copyright lawyers argue about whether or not a certain use will be considered "fair" and the only people that can say for certain are judges ruling on a copyright infringement case.

This greatly discourages fair use of a work and forces users to take the safe road. A more clearly-defined, liberal fair use clause is needed. While details regarding it would have to be worked based upon the types of work involved and other factors, it should strongly favor non-commercial use, even more so than the current provision, and, possibly, be more open to certain forms of sharing.

Clearly, this would force us to revisit the DMCA anti-circumvention clauses and the effects that they have caused.  

Moral Rights: In exchange for giving up many of their traditional copyrights, content creators should receive full protection of their moral rights.

Moral rights, which, unlike copyrights, can not be bought or sold and stay with the author even if he or she transfers the actual copyright or even the work itself. include the right to be identified as the author of a work, object to derogatory treatment of a work, publish a work anonymously and the right to no longer be attributed for works you do not wish to be connected with.

These rights help prevent the most vile form of copyright infringement, plagiarism, and can be applied long after the copyright is expired, enabling creators to reap rewards from their work long after their government monopoly on copying has expired.

Moral rights are a potentially powerful way to balance an artist's need to benefit from his or work and the public need to use it.


Copyright law might not be as applicable as it was decades ago, but the framework it provides is a solid one and it offers a great deal of flexibility as long as we don't cave into extremism.

Regardless, the one thing that is certain is that, with any change in copyright law, someone will be very unhappy. There is no way to please everyone, all we can do is try to offer the most benefit to the largest number of people.

In that regard, our modern copyright statute is a dismal failure and becoming worse every day. As the powers that be inch toward a more and more draconian code, users miss out not only on the culture and connection that comes from readily-available works, but also the ability to grow as artists themselves, progressing toward their own creative endeavors.

A balance must be obtained and, though no law can strike a perfect one, these changes can be a small step in the right direction.  

[tags]Plagiarism, Content Theft, Copyright Infringement, Copyright, DMCA, Moral Rights, Law[/tags] 

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