Learning Objectives

  • The original intent behind copyright laws
  • What constitutes fair use/fair dealing
  • How copyright laws interact with the spirit of the open web and technology

Key Messages

  • Copyright laws have deviated from their original intent
  • Stronger copyright laws risk stifling creativity by restricting circulation more than they encourage it by helping creators profit.

The History of Copyright

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We interact with copyrighted material daily, and most of us have a sense of what it is for, but not many of us know the historical conditions of how it came to be or the intricacies of how it works. The copyright law we know today has evolved since its first conception nearly 500 years ago, but the fundamentals behind it remain the same. The precursors to today’s copyright laws came about in the 1500s as a means to censor the onslaught of newly printed materials that were flooding the market. According to Fogel, “[t]he first copyright law was a censorship law. It was not about protecting the rights of authors or encouraging them to produce new works. Authors’ rights were in little danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few.” As a means to control the amount and the kind of material that was printed, the government granted the right to oversee British publishing to a private, for-profit, board of censors (called the London Company of Stationers). These Stationers had a monopoly over all printed materials in England and the right to confiscate illegally printed material—no books could be published if they weren’t on the stationer’s list, and no book could get on that list if it wasn’t either approved by the crown on the stationers themselves. Individual Stationers who register new books ended up holding the copyright, or exclusive right to publish the book, over the author. This created a system that served the interests of those in the government and Stationers (or booksellers) but not authors.

“Before this moment, copyright — that is, a privately held right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libellous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership”—Fogel, 2011

Changes in the political landscape over 100 years later brought about regulations for the dismantling for the Stationers’ monopoly. These changes had the potential to be of interest to printers and black-listed authors, as they would directly benefit from a free and open press, but this potential publishing utopia was cut short. Stationers were able to convince the government that authors would always need a publisher for distribution, primarily through the argument that the authors themselves did not have access to the means of production. It was acknowledged that authors should always have a right to ownership over their material, but like any other form of property, they could sign ownership over to the production firms—the Stationers. This argument was convincing enough to persuade parliament to adopt the first modern copyright law, the Statute of Anne in 1710. The statute, given the title “an act for the encouragement of learning,” instituted the idea that authors should be protected from works being published “without consent of the Authors or Proprietors … to their very great Detriment, and too often to the Ruin of them and their Families.” The American colonies, who were not covered under the Statute of Anne, adopted their own version of copyright premised on the same idea of “encouragement of learning”. The Copyright clause in the US Constitution states that “Congress shall have the power … to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright may appear to protect the author’s intellectual property, but the reality is quite the opposite. As Fogel states:

“But to interpret it as an authors’ victory flies in the face of both common sense and historical fact. Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers’ monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning”.

Instead of creating an environment of encouragement for authors, copyright protects the publisher’s investment and ensures that the work cannot be sold to a competitor or that printers won’t produce works outside of their contract. As Carson states, “capitalism’s extraction of surplus-value, increasingly, depends on the ownership of the patents rather than ownership of the machines”. Simply put, copyright was founded by distributors as a self-serving tool to protect their investment, and not to protect authors.

“Copyright maximalists and defenders of strengthening copyright laws always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn’t the incentive. It’s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.”—P2P Foundation




Copyright and the Web

Fast forward to today when copyright is the main legal mechanism used by the content industry to protect their investments. If we look back to chapter 3 where we discussed internet business models, we can see that limiting access to information and preventing distribution is key to the success of many of the models. So how does modern copyright fit in with the free and open spirit of the Web?

 Creative Commons

As strict copyright restrictions clashed with the open culture of the early Web, a workaround solution was devised in the form of Creative Commons licensing (also referred to as CC). CC is a free, public, license system founded in 2001 by Lessig, Abelson, and Eldred that leverages existing copyright laws, but gives creators an easy way to label their work (for both humans and machines to read) in ways that allows them to make explicit which rights they wish to waiver and which they want to keep. These standard licenses remove the typical need for obtaining permissions for reuse that would be necessary under the “all rights reserved” default under copyright.

Creative Commons explainer:

Fair Dealings (AKA Fair Use) and User Rights

Fair Use

CC licenses are a useful way of making permissions for reuse explicit. However, such permissions are not always necessary since, in many cases, use and reuse of copyright works can be done legally under the principle of Fair Use (or, as it is known in Canada, Fair Dealing). Fair Use provides an exception to copyright law for the purpose of encouraging innovation and creativity. It allows for a certain amount of copyright material to be used for research, education, private studies, satire, criticism, news, and reviews—all without the expressed permission of the copyright holder. If the work is challenged by a copyright holder, the case needs to be decided in a court where the purpose of the work, how it is used, how much as been copied, any effect on the original work, and if the use of the work was necessary will all be taken into consideration.

A case study: Fair Use, Lisztomania, and AOC

A video of Alexandria Ocasio-Cortez (AOC), the youngest US congresswoman in American history, made waves on Twitter last year. Posted by conservatives trying to scandalize her, the video failed to make shockwaves intended, but instead highlighted copyright laws and a fair use case that was settled over five years ago. The video features Ocasio-Cortez dancing along with other college students of Boston University. The premise is based on a mashup video originally uploaded in March 2009 by Sarah Newhouse (who has since had her YouTube account shut down) which features clips of different 1980’s John Hughs “Brat Pack” movies set to the French pop-rock group Phoenix’s “Lisztomania”. Newhouse’s video quickly became what is now known as a meme (albeit more involved than meme’s today) and ended up becoming both a great example of the remix culture that was alive at the time and a battleground for fair use legislation.

The entire story is nicely summarized in this Twitter thread, but things get interesting, from the copyright law perspective, in 2013 when Harvard Law professor Lawrence Lessig, shared a video on YouTube of a talk he gave at a Creative Commons that discussed the Phoenix mash-ups and the importance of remix culture. According to Read and Thomason, “[t]o Lessig, the Brat-Pack-meets-Phoenix craze was a demonstration of the fecundity of remix culture. One enterprising creator had thought to mash together a song from 2009 with film clips from the 1980s. A group of enterprising Brooklynites had then turned the concept into their own live-action video. Soon homages had proliferated across the globe — in Riga, in Nairobi, in Rio de Janeiro, and on a Boston University rooftop, where a future congresswoman tried on some of Ally Sheedy’s old moves.” It wasn’t long after that the record label filed a suit and asked for Lessig’s video to be taken down for copyright violation. Lessig, a copyright reform activist (and founder of Creative Commons), served a counter-notice arguing that the video fell under fair use as it served an education purpose—ironically for discussing copyright law.

After being sued, Lessig teamed up with proponents of fair use and eventually won his case, and in the process ensuring that the video of Ocasio-Cortez wasn’t lost. Yet many of these cases are lost—and in most cases, work is taken down out of fear and to avoid a costly trial. According to Higgins, “[t]he real danger of overzealous copyright enforcement isn’t usually from targeted attempts to silence speech (although those happen to), it’s from the Kafkaesque scattershot approach of just taking things down without caring about the consequences. The Lessig stuff definitely fell into that latter camp”. 

Algorithms and bots that comb the internet for copyright infringement are commonplace today. These automatic systems handle the onslaught of posting that simultaneously happens, but often make mistakes and limit creative uses that could very well constitute fair use.  Unfortunately, bots and other automated systems often fail to see the nuances that a human would, missing the conditions of fair dealing.

“…automatic filters simply cannot account for fair use and the other limitations on copyright intended to protect freedom of speech. The same audio, video, or text may be infringing in one context and perfectly legal in another. Takedown bots cannot tell a parodic, journalistic, or educational use of creative work from an unjustified commercial use. And they can’t determine how much of a work is OK to use, because that depends greatly on context. Bots can’t even tell if a particular user is licensed to post content, which is why takedown services hired by the major entertainment companies sometimes take down clips uploaded by the companies themselves.”—Stoltz, 2019


Further Reading

Media Attributions

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The Web, Publishing, and Ourselves Copyright © 2020 by Juan Pablo Alperin is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.

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