Two weeks ago, I told the strange truth about the FBI Logo
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.
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.
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.
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.