The ensuing outcry following recent news about the Anti-Counterfeiting Trade Agreement (ACTA) between countries like the United States, Japan, Canada, Mexico, Singapore, New Zealand, and United Arab Emirates demonstrates just how relevant copyright reform is today. Proposed systems like the 2003 Public Domain Enhancement Act offer steps in the right direction. For example, the PDEA would require copyright owners to pay a $1 renewal fee fifty years after the work is first published, and another $1 every ten years afterwards until the end of the copyright term if he wished to retain the copyright over his work. Otherwise, the work would automatically fall into the public domain. I posit that such a system would be a good step, as it would, at least in theory, encourage copyright holders to consider the value of their work, if holding the exclusive right to a commercially unviable work is really worth restricting others’ use of the work. It would also serve to identify which works are protected, and provide information on how to contact copyright owners– which would serve copyright owners’ interests, as parties wishing to pay for the use of a work would be able to find them.
But while small steps measures like the PDEA are necessary and international trade agreements like ACTA are inevitable, we have larger debates to consider. How can we reconcile technologies like YouTube’s Content ID system with current copyright laws regarding fair use? When YouTube removed hundreds of Hitler “Downfall” videos yesterday, it relied on an algorithm to identify the use of a copyrighted work, but did not bother to identify whether any illegal activity had actually transpired. Now the burden is on the remixers to dispute the takedown. The Public Domain Enhancement Act would do nothing to prevent this detrimental behavior from happening.
And what about deciding which types of works deserve copyright protection? In Pamela Samuelson’s “Preliminary Thoughts on Copyright,” she mentions that in the past, people have been reluctant to make rulings on emerging copyright issues because they don’t know how the technology will develop. She notes that in a 1965 hearing, one man decided “it would be a mistake, in trying to deal with such a new and evolving field as that of computer technology to include an explicit provision [on computer-related uses] that could later turn out to be too broad or too narrow.” Making decisions on emerging and new forms of works can be nearly impossible, especially with the influence of industry (or not) lobbying for certain results. But what about works that have been around forever and have never achieved a definitive ruling. Consider fashion, for example.
Currently, there is no copyright protection for fashion, and certainly many designers consider their work worthy of the same protections afforded to architecture, which is protected under current law. In 2006, Congressman Bob Goodlatte introduced the Design Piracy Prohibition Act (DPPA), which would create a three-year copyright for fashion designs, and would arguably work to counteract counterfeiting in the industry. Producing a popular design requires a lot of effort and money and it is relatively easy for another designer to swoop in and recreate a successful item. While the industry has shunned such actions (see a recent New York Times blog post about this subject and other opinions) arguably, fashion designers would be spurred to innovate just because the fashion cycle turns so quickly, and new designs are always in demand. (Summer clothes just don’t work so well in winter…) Also, while the act would serve to protect the big players in the fashion world, indie designers would not have the legal resources to ensure that every one of their designs was not “closely and substantially similar” to an earlier work, and would be susceptible to legal intimidation that could prevent them for designing anything at all. For fashion, copyright would just harm the industry, waste resources, and provide no additional incentives.
That’s exactly the big picture issues we must consider now. The way we consume movies, books, podcasts, blog posts, news reports, songs, games, and other copyrighted works is changing rapidly, perhaps in the direction of the fashion industry. In many realms, we value most highly first responders and creativity, and the first responders actually serve to benefit from the dissemination of their ideas, or derivative works. We still throw around the statistic that only two percent of works between 55 and 75 years old continue to retain commercial value, but as we create more and more with new incentives (see the upcoming project on reputation economies) this no longer represents the truth. What percentage of Twitter posts retain commercial value even two days later? (Did you hear that Michael Jackson died?) What percentage of newspaper articles retain commercial value after a couple of months? We must reconsider the fundamental way we wish to protect these works. Before we can even work towards change, we must figure out what we want.
Yale Law Tech 