Commentary

Copyright Law

CopyrightThe universe isn't the only thing expanding.

The story of copyright in this country has primarily been one of expansion. Given the value of content, it is no surprise that copyright has expanded not just substantively, but also temporally. Currently, works do not enter the public domain until 70 years after the death of the author. If you're 20 today and write a screenplay, and you survive global warming and the subprime crisis and the religious right and live to be 80, the rights in your work continue into the year 2138.

In 1998 copyright terms were extended by 20 years, but a decade has passed and important works and characters are once more at risk of entering into the public domain. This time, expect the forces lined up against extension to be better organized.

Content and the methods of delivery of information are inextricably linked. Technology evolves to provide ever-faster and more efficient means of delivery, and new tech inevitably spawns new forms of content: Did you know what a podcast or a mobisode was a few years ago? Thus the history of copyright also has been a history of adaptation to technology. Long ago, copyright law had to determine whether piano rolls were copyright violations or merely machinery. And although Sony's Betamax videotape format is long forgotten by consumers, the Supreme Court's pronouncements on "time-shifting" of TV recordings in 1984 were the clarion call of the modern, epic struggle between Content and Tech.

Used most prevalently in the context of software development, "open source" often represents an affirmative decision to commit copyright-protected material to the public, for free. Open source has found a permanent spot in our culture, and has led to groups like Creative Commons, which promulgates licenses that allow creators to waive all or some of their copyright protection. Hard on the heels of any discussion of open source comes the broader concept that information "wants to be free" and that the regime of copyright too tightly constricts the flow of information valuable to society. Expect debates over extremist positions like those from the Free Culture movement to move the discourse to a more centrist position.

The concept of a use of a work that would otherwise be infringing but, in a particular context, is "fair," is rooted in the idea that certain uses promote the public interest. Fair use has been held to encompass uses as diverse as parody and the aforementioned time-shifting. But fair use is notoriously hard to define, and currently a debate rages: on the one hand, that owners of content interpret fair use too rigidly, and on the other, that users take too much liberty with copyrighted works.

Individuals are now instant global pamphleteers (bloggers), deejays (pandora.com) and indie filmmakers (YouTube). Yet the promise of individuals publishing whatever they want, whenever they want also incorporates the reality of people posting whatever they want, whenever they want. Thus YouTube allows for free expression of not just the beautiful and extraordinary, but also the crass and mundane. And apparently many, many unauthorized clips of The Office.

In a sense, Web sites that facilitate sharing of content bring many of the difficulties copyright has faced in recent years into sharp focus. There is a fair-use component: Are "mashups" of unrelated films and music "transformative" enough to become a fair use? There is the "instant distribution" problem: Once it's made available by someone in digital form, how can the original owner stop the viral spread of the work? Major content providers have sued YouTube, claiming it does not do enough to monitor and filter infringing content. Expect this particular battle to play out in myriad skirmishes for the foreseeable future.

As we create worlds within worlds, all digitally rendered but approaching reality in more and more ways, do the same copyright rules apply? Who owns works created within a virtual environment: the creator or the owner of the space?

What becomes of copyright when content is created by multiple users on computers across multiple legal jurisdictions? Who owns the copyright in works prepared using software made available through "cloud computing"? Current copyright law requires a work to be "fixed" in a "tangible medium." As tangible becomes less meaningful, and works can be experienced by multiple viewers and vanish in the blink of an eye, we may need to redefine the law for ephemeral works.

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