In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

A new “rights movement” is taking shape around the issue of creators’ rights. In theory, its goal is to benefit the general public. But if successful, it will affect the careers and legacies of freelancers everywhere. And artists, writers and photographers who are already confused about how to protect their copyrights can now say hello to a new ride at the Funhouse.

The issue involves the length of copyright protections, and its advocates are a small group of attorneys, activists and legal scholars, known loosely as the “Copy Left.” Their legal argument is that prolonged ownership of intellectual property robs the public of “free” information to which the public is “entitled.” And they’ve set themselves the goal of rolling back or abolishing copyright protections. Their stated mission is to serve the public interest by speeding the passage of copyrights from private hands into the public domain. Some portray themselves as visionaries trying to restore the “Jeffersonian” ideal of a “free society” by making all culture accessible to consumers for “fair use.” Others might say they’re simply trying to make the public a generous gift of other peoples’ work.

On the surface, the rhetorical target of these activists is corporate copyright holders. But in their effort to stigmatize Big Media as hoarders of information, Copy Leftists fail to distinguish between copyrights held by corporations and those held by individuals. This failure has consequences because corporations don’t create; individuals do. And in their drive to enact laws to restrain Big Business, they could well damage freelancers instead.

The current situation has its roots in the 1976 revision of the U.S. Copyright Act, a law that went into effect in 1978. Before that time, freelance artists, writers and photographers in the U.S. generally didn’t own the secondary rights to the work they did for clients and publishers.

If an artist did a painting for a large national magazine, for example, the publisher could claim all rights to it, just as major corporations now do for a logo they commission from a graphic designer. The 1976 Copyright Act revised all that and gave secondary rights to the freelance artist. This set up the working environment American creators have known for the last quarter century.

Over the years, publishers and others in the U.S. have lobbied for increased length of protection for the copyrights they held. Currently, an American copyright protects the work of a copyright holder for the lifetime of the creator plus 70 years. Twenty years of that term were added within the last decade by the “Sonny Bono Copyright Term Extension Act.” Some say this legislation, sponsored by the former Pop Star and Congressman, was a favor done for the Disney corporation, which feared losing their early copyrights on Mickey Mouse material. Others point out that the Bono Act merely brought the United States into closer compliance with international copyright law, a necessary step if the U.S. wishes to maintain reciprocal overseas trade agreements.

But the Internet has spawned opponents to these long-standing copyright protections. Upstart commercial interests, backed by the Copy Left, contend that copyright is actually a “black hole” which keeps content in the hands of corporations, inhibits free speech and overreaches the intent of the Constitution’s framers. They point out that American copyright was originally intended to protect only authors of “maps, charts and books,” and they seek to overhaul the entire U.S. copyright system to conform to their collectivist’s reading of Original Intent.

One of the leaders of this movement is legal scholar Lawrence Lessig, author of the newly published “Free Culture: How Big Business Uses Technology and the Law to Lock Down Culture and Control Creativity” (The Penguin Press, 2004). Lessig has previously proposed reducing copyright to a period of five years, with 15 increasingly expensive renewal options.

The purpose would be to make the downstream paperwork of copyright holders so onerous that copyrights would fall through the cracks more often and enter the public domain more quickly. But this solution chases the problem without catching it. Anyone familiar with the workings of Big Business will understand that corporate copyright holders faced with increased paperwork and administrative costs would simply staff up to handle the overload, then pass the added cost along to the public. The people more likely to be swamped and defeated by multiple copyright filings and incessant, staggered renewals would be the overwhelmed, deadline-ridden freelancer. In short, the goal of checking corporate overreach by making copyrights harder to maintain would be very likely to burden the wrong parties.

There is some logic in questioning how far corporations should be allowed to go in conglomerating intellectual property. Corporations acquire copyrights in one of two ways: from the work of employees whose creative product is considered the company’s property; or from freelancers who deed their copyrights to the corporation – often as a forced condition of accepting assignments. Once acquired, corporate copyrights can, in theory, be retained as long as rolling copyright extensions can be lobbied into law. Here, the case against Big Media may be on target. But since the argument has no meaning when applied to freelancers, the true believers of the movement have borrowed the logic of Deconstructionism to simply remove creators from the equation.

Following Postmodern theory, Copy Leftists argue that “the romantic myth of authorship” is an artifact of less sophisticated times. To Deconstructionists, artists are nothing more than manifestations of the societies they live in. And since all artists are influenced by the work of previous artists, they say, each individual work of art owes a debt to the past that must be repaid to the public domain — in their minds, sooner better than later. The Copy Left may be breaking new ground here by trying to base statutory law on literary theory, but we don’t need to argue the merits of Postmodern criticism to see the flaws in the argument. Compare copyrights to home ownership and a stronger case prevails.

The principles of building construction are a collective body of wisdom accumulated over the ages. This information is available to everyone, as are building supplies to anyone who can afford them. Yet, the house you build or buy is yours and your heirs. Your debt to the fair use of public information does not obligate you to inhabit your home under a limited government grant, then surrender it back to the public at the end of that term. Let the Copy Left explain why individual copyrights should be treated any differently.

Most freelance artists and writers have no other source of income but their creative work. The accumulated value of that work is no different than the value that accrues to your home; and the copyright that protects it no more robs the public of an “entitlement” than does the ordinary ownership of private property. Indeed, without the incentives guaranteed to individual creators under copyright law, the tradition of independence in the popular arts would be at risk – and with it, the variety of independent viewpoints that freelancers bring to public life. That would rob the public in a noticeable way.

For decades, freelance artists and photographers have given shape to the content of popular culture. Within the last two decades their ability to earn a living has come under assault: from publishers who demand they surrender copyrights in return for assignments, from corporate interests who wish to sell access to “free culture,” from cutthroat competition with discount “image providers,” and now from legal “visionaries” who wish to repeal or emasculate copyright.

The case for abolishing copyright can be likened to a scheme for the redistribution of income. In theory it sounds public-spirited. In reality it deadens motivation. Protecting a creator’s individual copyrights will cost the public nothing, but it will insure the continued flow of creative work from which the public will ultimately benefit.

This article appears in the Fall/Winter 2004/05 issue of ALT Pick
Magazine. It is being shipped currently.

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