The World According To The Archer
Copyright is the transferrable exclusive right to distribute a work, granted by a state, for a limited time after first publication, which is given to the author of an artistic, dramatic, literary or programmatic work.
Copyright is not a natural construct. It is an artificial construct of most of the world's nation states designed to promote capitalism by rewarding people with wealth in exchange for contributing to the public domain of literary, artistic, dramatic and programmatic works in their society. It is what allows artists and authors to earn a living from their work, and it also (through its transferrability) allows brokers to offer services (similarly renumerated) to assist artists and authors in reaching a broader audience. Copyright therefore serves the purpose of generating wealth in a capitalist society.
However, there is a balance here. In return for the state granting the exclusive right for a limited time, the state expects that eventually that the work will fall into the hands of the public to do with as they wish. The literary works of a society must not be allowed to be held to ransom by their authors, their transferees, heirs and successors, in perpetuity. They must eventually take their place in society's public domain, to represent the culture and history of a people to future generations, to allow progress and for the works themselves to be adapted to new forms of expression, to be used in new and interesting ways, without fear of restriction or censorship.
"There are many degrees here, and absolutes are completely absent."
Copyright will always be a matter of degree due to the associated doctrine of fair use. Society must be allowed to review the art, code and literature it is given, and so it must be allowed to indicate, or quote, or sample a work. A hypermedia document discussing the albums of a musician is therefore allowed to show indicative reproductions of cover art, a list of the tracks, quote portions of lyrics and liner notes, and even play clips of music.
Copyright is also a matter of degree in other ways. Some literary and dramatic works are too short to be copyrighted. But how short? Some artistic and programmatic works are too obvious to be copyrighted. But when is a work obvious? Society won't allow you to copyright a square, but it might allow you to copyright a square of a particular colour and in a particular formation with some other geometric shapes. Society won't allow you to copyright a short sentence or a title, but it might give your haiku protection.
But what about other aspects of copyright. How exclusive? Exclusive to where? What about other laws which may be in conflict with copyright, such as free trade, free speech, the right to parody, make satire. There are many degrees here, and absolutes are completely absent.
"There are similar examples of grey areas where principles are being violated by poor codification."
Perhaps the most important degree for consideration in copyright is that of what constitutes distribution. If I sell a book I have bought to a friend, I wouldn't consider that I had done anything wrong, but I may be running afoul of certain codifications of copyright law. The doctrine of first sale comes into play here in some schemes, so that this specific act is deliberately exempted from copyright, but the problem here is that there is clearly a principle at stake, and it is not possible to effectively codify a principle through mere examples.
There are similar examples of grey areas where principles are being violated by poor codification. In some schemes, the recording of an off-air broadcast of a dramatic or other work is prohibited by law, but this seems fine in principle. After all, what is a video recorder for if not to record video? And besides, where is the distribution here? But then we move on to the possibilities of lending recordings of works to friends, or of making backup copies of some computer code to be kept at a different location. Both of these are forms of distribution, but both seem to fall short of what a reasonable person might consider to be breaches of copyright.
Some of the actions described above are protected under certain state's laws, but some states have different laws and different interpretations. And this is even before we seriously consider the matter of degree. Consider a hypothetical person who has bought a large number of videodiscs, all bought legitimately from a variety of corporate and individual publishers. This may have cost a great deal of money, and therefore is likely to have resulted in a significant contribution having been made to each publisher. Is it then a violation of copyright to lend and exhibit these discs to friends without charge? Is it wrong to make backup copies for storage in other locations, such as a relative's home? Should it be illegal to go so far as to allow these backup copies to be played? To be so bold as to encourage their use in preference to the originals which may be carefully stored and deliberately not exposed to wear? Is to offer these backup discs to relatives as gifts crossing a line? These are eventualities that technological change must cause us to consider.
Are any of these hypothetical scenarios wrong on principle? Has the publisher been damaged? Nothing has been stolen. In fact, the publisher has received a large amount of money, and is likely to receive even more money in future, not only from the videodisc collector, who will grow her collection, but probably also from the friends and relatives exposed to her enthusiasm for the content.
"In many states, copyrights have now been extended to such a degree that limited time no longer comes into play for contemporary works."
New electronic media and large corporate actors have changed the landscape of copyright forever, mainly because the existing laws were formulated in ways specific to media and technologies, and were originally intended to protect small individual actors. But also because corporates have such dominance in society today, particularly in lawmaking, and because they hold many copyrights inherited from multiple authors, some long passed.
Copyright law is often codified as literally the "right to copy," and copyright law often goes into detail in what constitutes a copy, with some specificity. This lead to problems when new types of works arose--the programmatic works of computer code which form the basis of so many new technologies--and also when new forms of distribution and preservation of works became possible--also arising from advances in technology. But beyond the technological, the societal changes caused by fewer and fewer corporate players holding more and more copyrights lead to the increase in value of protection--one copyright is probably not worth protecting, but a thousand probably are, particularly if there is the potential for profit driven by obsolescence of old media forms (books, gramophone recordings, cinema) and the coming of age of new forms (hypertext, videotapes and compact discs.)
In many states, copyrights have now been extended to such a degree that limited time no longer comes into play for contemporary works. This at a time where the creative metronome is oscillating faster and faster, where demand for creative works and their remodulation is barely satiated by supply. Also, the power to suppress without a court being able to measure copyright's many matters of degree has increased out of control, because those holding the majority of copyrights have amassed wealth to give them an unreasonable advantage in an increasingly expensive justice system. And those authors with few copyrights find that it is impossible to defend them against onslaught by small and large players alike.
Copyright law is in a dire need of rebalance. It must be reframed to uphold the intent to grow the public domain while maintaining protection for those who need it most--small individual artists and authors. It must consider the huge demand for creative works and the desire to dissect and remodulate them into new creative forms at ever increasing rates. It must protect the rights of the individual who has bought content from being forced by corporate media hegemonies to repurchase it on new media, or to purchase additional copies merely to ensure its longevity and integrity in storage. It must allow content purchasers to do their own transfers, devise their own storage solutions and develop their own regimes for protecting content from degradation or damage. It must prevent consumers from being forced to subscribe to content, or pay for it repeatedly, without prospect of ever being released from such unfair domination.
Author and editor: Sophie "Archer" White; e-mail: archer@kaserver5.orgLast updated: Thursday 29th September 2022