Tag Archives: intellectual_property

rethinking copyright: learning from the pro sports?

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As Ben has reported, the Economics of Open Content conference spent a good deal of time discussing issues of copyright and fair use. During a presentation, David Pierce from Copyright Services noted that the major media companies are mainly concerned about protecting their most valuable assets. The obvious example is Disney’s extreme vested interest in protecting the Mickey Mouse, now 78 years old, from entering the public domain. Further, Pierce mentioned that these media companies fight to extend the copyright protection of everything they own in order to protect their most valuable assets. Finally, he stated that only a small portions of their total film libraries are available to consumers. Many people in attendance were intrigued by these ideas, including myself and Paul Courant from the University of Michigan. Earlier in the conference, Courant explained that 90-95% of UM’s library is out of print, and presumably much of that is under copyright protection.
If this situation is true, then, staggering amounts of media are being kept from the public domain or are closed from licensing for little or no reason. A little further thinking quickly leads to alternative structures of copyright that would move media into the public domain or at the least increase its availability, while appeasing the media conglomerates economic concerns.
Rules controlling the protection of assets is nothing new. For instance, in US professional sports, fairly elaborate structures are in place determine how players can be traded. Common sense dictates that teams cannot stockpile players from other teams. In the free agency era of the National Football League, teams have limited rights to control players from signing with other teams. Each NFL team can designate a single athlete as a “franchise” player, according to the current Collecting Bargaining Agreement with the player union. This designation gives them exclusive rights in retaining their player from competing offers. Similarly, in the National Basketball Association, when the league adds a new team, existing teams are allowed to protect eight players from being drafted and signed from the expansion team(s). What can we learn from these institutions? The examples show hoarding players is not good for sports, similarly hoarding assets is not in the best interest of the public good either.
The sports example has obviously limitations. In the NBA, team rosters are limited to fifteen players. On the other hand, a media company can hold an unlimited number of assets. In turn, applying this model would allow companies to seek extensions to only a portion of their copyright assets. Defining this proportion would certainly be difficult. For instance, it is still unclear to me how this might adapt to owners of one copyrighted property.
Another variant interpretation of this model would be to move the burden of responsibility back to the copyright holder. Here, copyright holders must show active economic use and value from these properties. This strategy would force media companies to make their archives available or put the media into the public domain. These copyright holders need to overcome their fears of flooding the markets and dated claims of limited shelf space, which are simply not relevant in the digital media / e-commerce age. Further, media companies would be encouraged to license their holdings for derivatives works, which would in fact lead to more profits. In that, these implementations would increase revenue by challenging the current shortsighted marketing decisions which fail to account for the long tail economic value of their holdings. Although these materials would not enter the public domain, they would be become accessible.
Would this block innovation? Creators of content will still be able to profit from their work for decades. When limited copyright did exist in its original implementation, creative innovation was certainly not hindered. Therefore, the argument that limiting protection of all of a media company’s assets in perpetuity would slow innovation is baseless. By the end of the current time copyright period, holders have ample time to extract value from those assets. In fact, infinite copyright protection slows innovation by removing incentives to create new intellectual property.
Finally, few last comments are worth noting. These models are, at best, compromises. I present them because the current state of copyright protection and extensions seems headed towards former Motion Pictures Association of America President Jack Valenti’s now infamous suggestion of extending copyright to “forever less a day.” Although these media companies have a huge financial stake in controlling these copyrights, I cannot overemphasize our Constitutional right to place these materials in the public domain. Article I, Section 8, clause 8 of the United States Constitution states:

Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.

Under these proposed schemes, fair use becomes even more cruical. Conceding that the extraordinary preciousness of intellectual property as Mickey Mouse and Bugs Bunny supersedes rights found in our Constitution implies a similarly extraordinary importance of these properties to our culture and society. Thus, democratic access to these properties for use in education and critical discourse must be equally imperative to the progress of culture and society. In the end, the choice, as a society, is ours. We do not need to concede anything.

lessig in second life

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Wednesday evening, I attended an interview with Larry Lessig, which took place in the virtual world of Second Life. New World Notes announced the event and is posting coverage and transcripts of the interview. As it was my first experience in SL, I will post more on the experience of attending an interview/ lecture in a virtual space. For now, I am going to comment upon two quotes that Lessig covered as it relates to our work at the institute.

Lawrence Lessig: Because as life moves online we should have the SAME FREEDOMS (at least) that we had in real life. There’s no doubt that in real life you could act out a movie or a different ending to a movie. There’s no doubt that would have been “free” of copyright in real life. But as we move online things that were before were free now are regulated.

Yesterday, Bob made the point that our memories increasingly exist outside of ourselves. At the institute, we have discussed the mediated life, and a substantial part of that mediation occurs as we continue to digitize more parts of our lives, from photo albums to diaries. Things we once created in the physical world now reside on the network, which means that it is being published. Photo albums documenting our trips to Disneyland or the Space Needle (whose facade is trademarked and protected) that one rested within the home, are uploaded to flickr, potentially accessible to anyone browsing the Internet, a regulated space. This regulation has enormous influence on the creative outlets of everyone, not just professionals. Without trying to sound overly naive, my concern is not just that speech and discourse of all people are being compromised. As companies become more litigious towards copyright infringement (especially when their arguments are weak), the safe guards of the courts and legislation are not protecting its constituents.

Lawrence Lessig: Copyright is about creating incentives. Incentives are prospective. No matter what even the US Congress does, it will not give Elvis any more incentive to create in 1954. So whatever the length of copyright should be prospectively, we know it can make no sense of incentives to extend the term for work that is already created.

The increasing accessibility of digital technology allows people to become creators and distributors of content. Lessig notes that with each year, the increasing evidence from cases such as the Google Book Search controversy show the inadequacy of current copyright legislation. Further, he insightfully suggests to learn from the creations that young people produce such as anime music videos. Their completely different approach to intellectual property informs the cultural shift that is running counter to the legal status quo. Lessig suggest that these creative works have the potential to inform policy makers that these attitudes are moving toward the original intentions of copyright law. Then, policy makers hopefully may begin to question why these works are currently considered illegal.
The courts’ failure to clearly define an interpretation of fair use puts at risk the discourse that a functioning democracy requires. The stringent attitudes towards using copyrighted material goes against the spirit of the original intentions of the law. Although, it may not be a role of the government and the courts to actively encourage creativity. It is sad that bipartisan government actions and courts rulings actively discourage innovation and creativity.