31 Copyright Criticism and Alternatives

As we’ve discussed, copyright law is meant to reflect a balance of public interests: on the one hand, a society has an interest in allowing artists and other creators to profit from their original creations for a period of time free from plagiarism; on the other hand, society also has an interest in allowing artists to freely create original works inspired by the works of the past. Art always builds upon the work of previous generations and without the process of creative borrowing and interpretation, the arts will suffer. Copyright law initially balanced these two opposing interests by keeping the duration of copyright protection to a minimum —  after a reasonable time to profit from a work, the artist’s copyright would eventually expire and the work would enter the public domain where it would be available as a resource to the next generation of artists.

The original duration of a copyright was set by Congress in 1790 at 14 years, but it has now reached 95 years! For many commentators and artists, this hyper-inflation of copyright duration is a sign of untrammeled corporate control over artists and their ability to function creatively. These commentators believe the balance of interests described above has tilted too heavily in favor of copyright holders and away from the rights of artists to creatively use the influence of their predecessors. One of the more outspoken of the copyright critics has been Lawrence Lessig, a law professor and author who has written widely on this issue, most prominently in two books, Free Culture: The Nature and Future of Creativity (2004) and Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008). In these books, Lessig points out that copyright law has failed to acknowledge the important distinction between unpermitted republishing of a work (direct copying) and an artistic reworking or transformation of a pre-existing work. This distinction can best be seen (or heard) in the use of sampling in hip hop music production. The hip hop producer uses samples as a means to transform previous recordings into something new, not to copy wholesale a previous work. (We will explore in detail the law surrounding sampling in a later chapter.) Lessig fears that copyright law too often favors the interests of copyright holders rather than the creative needs of artists to creatively transform existing works.

Creative Commons:

Most critics of the current state of copyright law do not advocate for a legal free-for-all without any copyright protection. Rather, they argue for a relaxation of current copyright law (such as through shorter copyright duration) or the adoption of alternative licensing schemes by which creators can decide to create a more open and less restrictive marketplace of creative sharing. One alternative licensing scheme that has proven to be both effective and popular is Creative Commons, a non-profit organization co-founded by Lawrence Lessig in 2001. The mission of Creative Commons is to advocate for a more open exchange of creative works and ideas, with the primary method to that end being the development of a common licensing scheme by which artists can make their works more widely available to other artists. Using these licenses, artists typically retain their copyright but allow (license) other artists a level of access to the work that promotes transformative inspiration or simply a wider range of use or copying than would otherwise be the case.

The Creative Commons open licenses have become so popular that over 2 billion such licenses have been registered, including large open-source networks such as Wikipedia, Khan Academy, and Flickr (with over 45 million Creative Commons-licensed photos). In fact, this book, the one you’re currently reading, is covered under a Creative Commons license often used for open-source textbooks. What started out as a fringe idea in 2001 has blossomed into a significant global force for open sharing of creative content. The Creative Commons licenses are not unlimited licenses to copy, but rather finely-tailored to allow for the re-use and sharing of open-source material while respecting basic proprietary ownership rights. For example, you could not simply run off copies of this book and sell it under your name, as that’s not allowed under the Creative Commons license. All Creative Common licenses require attribution of the original author/creator when using the work.  But you can read the book for free in this class and other teachers are encouraged to use it (or parts of it) for free in their classes at any school. Take a look at the Creative Commons website to learn more about how these open-source licenses work and explore the range of works you can access (and use) that have open licenses.

The downside to Creative Commons licenses is that they are not well-suited to extracting financial value (i.e., royalties) from a work. By agreeing to put a work into the Creative Commons, the creator typically forgoes any future financial benefit from selling copies of the work. Consequently, musicians who wish to make money from their recordings or compositions would not typically choose to use a Creative Commons license. As we’ve seen, however, even the most popular musicians make most of their money from live performance, not from selling recordings. And under a recording contract, the record company typically takes ownership of the recording copyright (“master”). So, the value of a copyright for performing musicians is not as great as some might believe. But for songwriters who wish to make money from their talent and skill but who do not also perform, the traditional copyright is their primary source of income so a Creative Commons license would not be helpful.

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