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Do we need to relax copyright law?

Copywrong Movement

While the idea of copyright protection is near universal, not everyone agrees with how its implemented.  There is a growing movement among creatives who feel that the benefits afforded by copyright law strongly favor corporations and the wealthier members of society, leaving the majority at a disadvantage. Some feel that creativity is not developed in a vacuum.  We need access to the materials of popular culture to create new and meaningful art.  Copyright hampers that ability. While one can claim fair use,  that determination only occurs after a lawsuit  leaving many artists wary of creating curtain pieces for fear they will be sued.  Others claim that since the Constitution holds that copyright is only for a “limited time,” current duration of the life of the author plus an additional 70 years or for corporate works, 120 years from creation or 95 years after publication is an unconstitutional interpretation.  (Note that the Supreme Court has ruled that the term is constitutional).

Recently, three studies have been published suggesting copyright law may have some detrimental affects on creation of new artistic works.

Recently, three studies have been published suggesting copyright law may have some detrimental affects on creation of new artistic works.  In the first study, How Copyright Makes Books and Music Disappear, the researchers looked at Amazon.com’s book offerings finding far more titles created around the 1880’s were available than more recent works.  They suggest that since modern titles are still under copyright protection, that the costs of negotiating license agreements is too high vs. the potential sales for those items.  Whereas books written before 1922 are in the Public Domain and free to republish.  According to the study: ”Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to stifle distribution and access.” Surprisingly, this happens less with music on YouTube.  The takedown procedures provided by the Digital Millennium Copyright Act (DMCA) Safe Harbor provisions, “helps maintain some level of access to old songs by allowing those possessing copies (primarily infringers) to communicate relatively costlessly with copyright owners to satisfy the market of potential listeners.”

The second study surveyed over 5000 musicians in the United States looking at genre, income bracket, demographics, education, and many other variables and their relationship to copyright law.  The study found that composers and musicians in the top income brackets depend heavily on revenue that is directly related to copyright protection but the vast majority of other musicians do not.  The study concluded, “For most musicians, copyright does not provide much of a direct financial reward for what they are producing currently. The survey findings are instead consistent with a winner-take-all or superstar model in which copyright motivates musicians through the promise of large rewards in the future in the rare event of wide popularity.” That does not necessarily mean that copyright harms those musicians but it is certainly conceivable that media companies favor generic works with greatest long-term licensing potential, which leads to more formulaic and less creative or out-of-the-box performances.

Three main consequences; less new artists entering the market, more hit songs for those that did enter the market, and a substantial decline in revenue for the music industry overall.

A third study suggests that less copyright protection can actually results in the creation of more, not less, new music. The study finds that the mainstream concept of more revenue leads to more original works is not so simple. In many cases, those works would have been profitable with to without copyright protection.  But it’s actually the long-term licensing potential due to copyright protection that affords the increased revenue.  However, that extra income can lead to reduced output by the most popular artists.  According to the abstract, “Broader copyright may thus entail a trade-off between two marginal effects: More original works from new authors along one margin, but fewer original works from the most popular existing authors along a second. If the second effect outweighs the first, then more revenue may lead to fewer original works. Conversely, less revenue may lead to more original works.” To discover this, the study used increased in “file sharing” as a proxy for less copyright protection. The regression analysis found that increased file sharing had three main consequences; less new artists entering the market, more hit songs for those that did enter the market, and a substantial decline in revenue for the music industry overall. Whether that is good or bad is depends on where you sit.

These studies are far from conclusive, only hinting at data which supports the anti copyright movement’s contentions. As with many studies, there is many ways that the data can be interpreted as well as  many other studies that both agree with and contradict these findings.  What they do suggest however, is that Copyright’s law’s effect on creativity and society needs a closer look.  We may find certain changes may help improve it’s usefulness.  Sadly, in today’s lobbyists driven policy climate, overwhelming evidence in support of changes to copyright law would probably fall on deaf ears unless those changes were beneficial to a corporate bottom line.

Do you agree with these studies or have any comments, post them below.  We would like to hear from you.  And please post this article to your social media. 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at steve@orangenius.com. His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • So, if there were to be a relaxation of copyright laws, where does one draw the line?
    For example, should people be able to incorporate an entire movement from someone else’s musical composition into their own composition without paying royalties to the other composer? Could an artist copy an entire Warhol painting and then add a few of his own brushstrokes and call it his own?

    • That is more of a fair use argument. While it would be nice to have a bright line on what was considered fair use in “for profit” works, that analysis is very subjective and I am not sure that it is possible without completely changing how fair use is derived.

      On the other hand, many people believe that the term for copyright is too long. Even now, only works prior to 1922 are definitely in the public domain, although many others into the 1980’s may be in the public domain. But if your take the current rule for individual copyright protection, life of the author plus 75 years, and look backward, and assuming a minimum life of 25 years if the author died young, then nothing after 1913 would be in the public domain. Assume the average age of 75 years and we have to go back to the Civil War era to find works in the public domain. That seems like a long time. Only a handful of works would benefit from that length of protection.

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