i-c8b3af6a7c67389e0ae5a6b0d9fd4f81-Creative Commons logo.jpg
Slowly but surely, the entertainment industry is realizing that it can’t use copyright law as a blunt force in the digital age. Take the case of music giant EMI. Not long ago, EMI was fighting music-sharing service Napster and threatening DJ Danger Mouse over the mash-up, The Grey Album. But today the music company announced a plan with Apple to offer DRM-free music through iTunes for $1.29 per song — meaning people can share the music more readily.

So when I asked you how you would rewrite copyright law for the digital age, most of you were in favor of scrapping the long life spans of copyright protection for artistic works and loosening restrictions. Before I get to your excellent responses, first I’d like to share the opinion of Internet law expert and Ball State telecommunications professor Dominic Caristi. I was visiting Ball State last week to speak to journalism students, and was thrust into Caristi’s class to talk about the change in advertising and marketing due to the Internet. Turns out that Caristi has been thinking a lot about the issue of copyright law, and really liked what he read on MediaShift and your comments on this question.

Here’s how he responded in an email to me:

i-fa15561914f01d965dc21ff654b7af76-Dom Caristi.jpg
Dom Caristi

The Supreme Court was wrong when it upheld the copyright extension (referred to by many as the Sonny Bono Act). I think it’s blatantly unconstitutional. The relevant part of Article 1, Sec. 8 [of the Constitution] says: ‘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…’

The Court said Congress could determine what ‘limited’ meant, but they didn’t read the opening clause. The whole point is to promote creation. If an author believes his work can be copied without permission he’s less likely to spend time writing the Great American Novel. I seriously doubt, though, that an author sits there thinking, ‘Well, if my heirs can only profit for 50 years after my death I won’t bother writing — not until they make it at least 70 years.’

Patents are now protected 20 years (extended from 17 previously). Life plus 70 is absurd for copyright. Even 20 seems long, but bringing it down to that would make a lot of sense. Also, the Creative Commons idea for sharing work is a nice step. Allow people rights to use for personal, non-profit purposes. Derivative works need a lot more protection than they currently have. Mash-ups and re-mixes are infringements today but probably shouldn’t be. They’re new creative works. Technology will not solve the problem. Every time new DRM hardware/software comes along, someone will be along 15 minutes later to defeat it. Tech fixes will delay infringement but not prevent it.

Caristi believes that “royalty tribunals” that collect fees and disburse them might be a solution. Every time someone buys recordable media, they would pay a small fee that is pooled and distributed to artists based on what’s being copied. But Caristi says there are plenty of problems with this approach, not least of which is that distribution of those funds would never match the infringement patterns.

Music blogger Jay Hinman said that he struggles with an answer to reforming copyright laws.

“Copyright law as I’ve come to understand it provides [record companies] with virtually all of the advantages, and the crafting of it in the late ’90s included some 11th-hour language designed to keep them fat & happy for many years,” he wrote. “Since that’s clearly not happening (yay), should the law therefore have to change, or the companies themselves? I believe that we need to recognize a world where all our assumptions about how media is consumed is fundamentally flawed, and that when in doubt, we should side with a loose, more libertarian interpretation that benefits consumers. I suspect that at the end of the day it really won’t matter what the law says, right?”

There is a common vein in your responses leaning toward more libertarian approaches, but also a recognition that Congress will likely not take any action because of the strength of entertainment companies’ lobbying arms, and people will continue to ignore copyright law. Blogger/educator Ben Rimes wondered why students were being prosecuted for copyright violations that their teachers did each day under fair use.

“Students witness firsthand the use of copyrighted materials such as songs, videos, and text in their projects as they are being used for educational purposes only,” he wrote. “Why should it be then, that when they leave school and want to continue their education they can’t continue to use those materials in the same manner? Because of this copyright law is oxymoronic; using others’ ideas for learning is protected, but take that learning experience out into the real world (as is the goal of every educational institution), and suddenly the use of any copyrighted material in a public setting is strictly prohibited, even if for educational purposes.”

Some of you took my question to heart and offered their prescription for what ailed copyright laws. Mojave Mike offered this two-step approach:

1. Loosen up on the personal use restrictions. Big business would be wise to treat their customers with leniency and gratitude. People sharing media (even showing a DVD to a friend who comes over) is how new markets are made from customers who wouldn’t have bought the material originally. This increases popularity and demand exponentially.

2. Tighten the rein and increase penalties for commercial use of copyrighted material — especially with foreign markets where the problem is completely out of hand.

But very quickly, Abelardo countered Mojave Mike’s idea by saying that foreign governments simply look the other way and don’t prosecute the flourishing market for pirated CDs and DVDs. “The Thai government will not take actions to curb these sales,” Abelardo wrote. “Neither will China, Chile, Mexico or any other country where I have seen these sales in public. They have enough on their hands without trying to stop something from which they have no direct interest.”

Jordan made the important point that copyright law was supposed to protect the artists — and not just the corporations that profit from the artists’ work:

Copyright law came about originally to protect the creators of content, not the distributors, funders, marketers, etc. I know we can’t just do away with copyright entirely because that leaves artists and other content creators completely unprotected…but at the same time, the way most distribution systems work today (I’m thinking primarily of music recordings and movies), the artist is not the one who benefits from the copyright protection anyway.

I would love to see wider adoption of ‘copyleft’ systems like the GNU or Creative Commons. Most of these systems allow for reproduction of a creative work under certain rules, e.g. the resulting copy must be released under the same protection scheme. This would allow for more remixes, mashups, sampling, etc. without the fear of lawsuits and jail time.

Of course, not everyone believes in reforming copyright laws in this way, and a couple people called for even stronger copyright restrictions to help out artists. “If anything, the copyright law should extend copyright protection to accomodate the extended life-cycles that the digital age represents,” wrote TJ. And Tonsotunes was upset by the attitude among consumers that music should just be free for the taking:

It might be useful — just for a fleeting moment — to consider those who are really taking it in the ear as their livelihoods are being drained away because what they do for a living, apparently, isn’t worth paying for. I’m talking about musicians, songwriters, artists and everyone else involved in the making of the ‘worthless’ music everyone craves. Stop focusing on the RIAA and start focusing on the creators of music.

If all of the major record labels are taken down and the independent artist is left to go it alone…be truthful…you’ll take his livelihood away from him in a heartbeat because you believe unlimited access to music is your entitlement. The only music you are entitled to is the music you make yourself…you are not entitled to mine!…We want you to love our music and consume tons of it…but, if you do, what’s unfair about us getting paid?

True enough, artists should get paid for their efforts and most people do not want to hurt the artists in this equation. However, artists should also expect that the digital marketplace will be much different from what they were accustomed to in the past. CDs might not sell for $15 to $20 and might sell for $8 to $10 direct to consumers. Consumers might want to program their own digital collection, and pick and choose favorite tracks. They might also want to remix and mash-up that music and share it with friends.

Yes, there should be some kind of payment to the artist, and yes, copyright restrictions should be loosened up in some way. The takeaway is that the current system of decades of copyright protection is not working, and that if legal reform won’t happen, then people will do their own thing, come what may.