The 3 Biggest Kludges of Copyright Law

Helpful To A Fault
Creative Commons License photo credit: big swift

Yesterday, we took a look at five “stupid” copyright questions and why they weren’t stupid at all. As was illustrated in the post, copyright law, in places, is a hopeless kludge and even the most basic questions can have very complicated answers.

Though this is sometimes a necessity, it can be very hard to legislate creativity, other times it is not.

If you’re looking for examples of this clumsiness and confusing nature, you need to look no farther than the following examples. Please bear in mind though that this list is populated with elements of the law that are so confusing and convoluted that their very usefulness is jeopardized. It is not a list of laws that were bad out of the gate (thus no mention of anti-circumvention).

All of the ideas below are good ones but, through a combination of legislation and court cases, they have become a hopeless, tangled mess that even lawyers struggle to decode. As such, laypeople have almost no hope of navigating these murky waters.

If you want to know why copyright law confuses people, these areas are a big part of the problem.

Copyright Expiration

When the copyright in a work expires should be one of the simplest questions in copyright law. However, a patchwork of copyright extensions and other legislation have made it such a mess that there is even a public domain slider to tell you when a work will lose its copyright protection. Worst of all, this slider doesn’t even cover all of the potential circumstances you might run into when doing this kind of research (Ex: No distinction between corporate and personal works).

Even when you break it down and ignore the mess of conflicting copyright extensions, you still wind up with a mess on your hands. For example, with works produced today in the U.S., you have a copyright term of life of the author plus 70 years, unless of course it is a work of corporate authorship, at which point you get 95 years.

This means that, if I want to know when a copyright expires, I have to first learn if it was a work for hire and then, if it wasn’t, find out when the individual died. Even when you start with the most basic of cases, it requires a huge amount of research and there are dual standards.

This doesn’t even begin to look at the international issues.

Would it be so complicated to have one flat copyright term expressed in a number of years? It might not be perfect, but at least we would all know where we stood.

Derivative Works

As illustrated in yesterday’s article, derivative works is a complicated and confusing area of the law. Though most people agree that artists should have the the right to create sequels and other works based upon their creations, we also agree that copyrighting ideas is, well, a bad idea.

The problem is that the the line between copyrightable material and uncopyrightable ideas is a blurry one. Considering that the definition of a derivative work is one that is “substantially similar” to the original, it is easy to see why there is a lot of confusion as that is a definition that changes regularly depending on the facts of the case and where the suit has been filed.

Though there are some cases where a work is clearly a derivative and some cases where it clearly is not, there is a wide swatch of gray area that has to be traversed to get from one side to the other.

The problem though is that there is no good way to legislate this area. Setting a hard rule would likely either make the the derivative work rights meaningless or restrict otherwise legal forms of expression.

Judges need the flexibility to look at each dispute on a case by case basis but with that comes a great deal of uncertainty and confusion. Unlike copyright terms, there is no (relatively) easy solution to the problem, though it would be nice if case law on the topic were a bit more consistent.

Fair Use

Fair use is a unique area of the law where the more one reads, the less they typically understand. After reading dozens of cases on this area of copyright law, studying various decisions and the law itself, I miss the simplistic definition and understand that came from my journalism law and ethics class.

Much like a pointillist painting, it starts out simple, but gets more complex the closer you look.

But even if you discard the conflicted rulings on fair use, the law itself lends itself to confusion. You have four separate factors, which are not weighed equally and are all extremely subjective. It is an area of law where two rational, intelligent people can look at the same facts, read the same case law and draw two very different conclusions.

The problem is that, when someone seeks to build off of another work, they usually just want a straight answer as to whether or not it is a fair use. However, it is impossible to give such an answer without first being sued and getting a court to rule on the matter. At that point, whether it is actually a fair use or not hardly seems to matter as they’ve already gone through the headache and expense of defending themselves in court.

This has lead many to believe in false “hard line” rules involving the percentages of the original work, number of seconds in a song or other, measurable standards of what constitutes fair use. Unfortunately, though such guides can help prevent obvious infringements, they have no grounding in the law.

While most will agree that fair use is a good thing that needs to be protected, it does not lend itself to clear legislation and, like derivative works, is something that needs to be resolved on a case-by-case basis. Though this is the only thing that makes the law work even remotely well, it also frustrates those who are scared of lawsuits or may want to push the envelope.

Worse still, when there is no hard knowledge or actual certainty, people have an ugly tendency to make up their own facts. That, for the most part, is what has happened here.


Copyright law is confusing and even the brightest minds in the field are left scratching their heads from time to time. Copyright isn’t like other kinds of law where there are a lot of bright lines and clear rules. Copyright is meant to be flexible, something that is addressed on a case-by-case basis.

While that helps keep copyright balanced, even in the face of changing technologies, it causes a great deal of confusion and uncertainty. It may be better than the alternatives, but the drawbacks are obvious when you begin trying to explain the rules to others that are unaware of them.

Whether one feels that copyright law is due for a major reform or not, it is definitely due for a simplification and clarification. Copyright law now impacts more people than ever before and it is crucial that the rules be as clear as possible.

Though there will always be some confusion and uncertainty, it seems to me that there is a lot of room for improvement.

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