Category: Culture

To Support Diversity, Independent Creators Should Not Give Up on Copyright

On Monday, the U.S. Chamber of Commerce’s Global Innovation and Policy Center (GPIC), in collaboration with Copyright Alliance, hosted a panel and roundtable discussion entitled A Conversation on Diversity and Inclusion in Copyright. The main topics discussed were the importance of fostering diversity among creators and creative works as well as a desire to see more diversity among the attorneys and other professionals specializing in copyright law and policy. In addition to the two panel discussions on those themes, video statements were submitted by creators working in music, film, and visual arts, and each described copyright protection as essential to their creative careers. (See participants list below.)

During the roundtable segment, I asked what might be improved about the copyright system to better support diversity in creative production. Rachel Kim of Copyright Alliance and Karyn A. Temple, former acting Register of Copyrights, now General Counsel at MPA, noted the goal to make registration easier at the Copyright Office because, of course, registration is necessary to fully enforce copyrights for U.S. authors. Temple added that the copyright small claims board, which will begin operating in the Spring of 2022, should help make copyright enforcement more accessible to a greater number of independent creators.

There is no question that, in addition to institutional changes within media companies or law firms etc., one of the best ways to foster diversity in creative careers is to inspire independent authors to participate in the copyright system in the first place. Because unfortunately, most do not.

A core principle of copyright law is that it is fundamentally egalitarian—a bundle of rights vested in any individual, from anywhere, who creates works of expression and makes those works available to the public. But the practical barriers to enforcing those rights, especially in contrast to the ease of infringement in the digital age, has been catalytic in discouraging entrepreneurial creators to the point of perhaps believing the narrative that “copyright is exclusively for big corporations.”

That theme, amplified by vocal copyright critics over the last twenty or so years, has played a role in discouraging the individual author about the value of his own rights. The message that the internet “bypasses the gatekeepers,” was, in addition to being overstated, implicitly coextensive to the assertion that the individual’s copyrights are meaningless in contrast to “new” modes of reaching audiences and generating revenue. That internet platforms enable marginalized voices, including artists, to be heard is absolutely true, but the idea that this social benefit demands the price of abandoning one’s copyrights was, and is, untenable.

Nevertheless, the digital native whose development as creator happened to coincide with the “copyright wars” beginning in the 1990s, often has conflicting views about her own rights, which have been described by various critics as greedy, rent-seeking, obsolete, anti-speech, a barrier to her fans, etc. Thus, in addition to the systemic hurdles in copyright law for indie creators, there exist internal obstacles for some, who have been made to feel uncomfortable about asserting their legal rights. Add the dimension of race and a history of exploitative IP grabs to the mix, and the belief that copyright is solely for the already privileged may be an even greater impediment for the author who happens to be a person of color. Consequently, demoralization of the people who should be advocating for their copyright rights produces an ideological vacuum, which the anti-copyright crowd has filled with its own agenda.

Perhaps because I could read the names or see the faces of everyone participating in the roundtable via Zoom, it occurred to me that although the moderators and guests are correct that all corners of the copyright world have work to do when it comes to diversity and inclusion, the anti-copyright segment strikes me as remarkably homogenous in this regard. And, of course, when we turn to the principal beneficiaries of the anti-copyright agenda (i.e. Silicon Valley), the white-male curve bends almost ninety degrees vertical.

It is common enough to observe that most, if not all, anti-copyright ideas are hatched in the comfortable aeries of academia, where the authors of many unfounded theories neither experience, nor even understand, the challenges faced by most creative professionals. So, whether it is fair to describe the class of copyright antagonists as too White, it is certainly fair to call it a pastime of privilege to invent and promote policies that, in one way or another, would divest the author of some amount of agency in her copyrights.

So, to answer my own question, if I could choose one goal for the moment, it would be to convince as many independent creators as possible that their copyrights are not worthless, even if advocacy of those rights may be entangled with myriad conflicting views. Yes, there are practical obstacles to meaningful enforcement, some of which may only be addressable by legislation; but even that will be more likely attainable if the millions of entrepreneurial creators in the country refuse to abdicate their rights in a war of attrition. Because giving up is what the anti-copyright interests are counting on copyright owners to do, and that is certainly no way to support diversity and inclusion in creative works.

Photo by: Igor2006

A Conversation on Diversity and Inclusion in Copyright

Welcome & Program Overview

Rick Wade, Senior VP, Strategic Alliances & Outreach, U.S. Chamber of Commerce

Terrica Carrington, VP, Legal Policy & Copyright Counsel, Copyright Alliance

Keynote Address

Representative Sharice Davids (D-KS)

Creator Video Appearance

Ebonie Smith, Music Producer, Audio Engineer at Atlantic Records; and Steering Committee Member of the Recording Academy’s Producers and Engineers Wing

Panel: Copyright Empowering Underrepresented Creators

  • Grace Wu, Executive VP, Entertainment Casting, NBCUniversal 
  • Moderated by: Rachel Kim, Copyright Counsel, Copyright Alliance

Creator Video Appearance

Yanique DaCosta, Graphic Designer and Fine Art Painter

Creator Video Appearance

Valerie Red-Horse Mohl, CEO/Founder of Red-Horse Native Productions

Panel: Careers in Copyright Empowering Underrepresented Communities  

Creator Video Appearance

Patrick “Guitar Boy” Hayes

Roundtable Discussion

Facilitated by Latricia Boone, VP, Equality of Opportunity Initiative, U.S. Chamber of Commerce

Closing Remarks

Mei-lan Stark, Executive VP & Chief Counsel, Intellectual Property, NBCUniversal

Let’s Stop “Fixing Copyright” for the Sake of our Digital Future

As 2021 winds down, and this blog approaches the mid-point of its tenth year, I ask the following question: Can certain folks stop trying to “fix copyright” in deference to the digital age now that the internet experiment has failed?

For over twenty years, the principal argument underlying the “copyright is broken” narrative has been that the legal framework limits the democratizing power of digital technology to improve the world through unfettered access to everything. That premise was always flawed, but it seems especially absurd today, against the backdrop of evidence that the worst consequences of the digital revolution thus far are attributable to blind faith in that utopian ideal. We can see clearly now that there is no “home of Mind,” as Barlow predicted. There is no global public square where a more enlightened civility transcends the anachronistic laws of “weary nations” through the power of information and an ethics requiring nothing more than the Golden Rule.

Like all utopian visions, tech-utopianism did not account for human nature and human folly—for instance, that emotion is stronger than evidence as a motive for action and that no amount of free access to information is going to alter that principle. It is barely controversial at this point to say that social media has been toxic for certain individuals and for whole democratic societies, specifically because of its power to commend ignorance and for that ignorance to form the nuclei of social subgroups who take harmful action.

Yet, despite the dismaying evidence that science and civility are in retreat in the U.S. and other democratic nations, various organizations and individuals still insist that more access to more content is the antidote and that it is copyright law which stands in the way of salvation. Efforts to weaken the copyright statute, as well as efforts to dilute the efficacy of the law as it is, continue unabated, even while standing in the sticky goo of the failed experiment, which subverted so many principles to that alleged virtue of “openness.”

As discussed in an earlier post, a group of academic librarians met in late March with Brewster Kahle of the Internet Archive and Senator Wyden, and with straight faces, they opined that copyright law needs to change in order to provide better eBook access as an antidote to the disinformation that results in conspiracy theory and violence like the insurrection of January 6. The lack of evidence-based thinking revealed in that conversation alone is an irony that should speak for itself. To imply that making eBook lending cheaper for libraries is any kind of solution to our disinformation problem is magical thinking indistinguishable from the conspiracy theories themselves. And that’s before we address the specific policy flaws in their proposals.

Related to that discussion are the library association-backed eBook licensing bills in New York, Maryland, and Rhode Island, which amount to state compulsory licenses (therefore, likely preempted by federal law); and again, the argument presented for these short-sighted provisions is that communities are “shut out of the marketplace of ideas.” This is rhetoric straight out of the tech-utopian bible—exaggerating the role of the library—valuable as it is—to rescue society from its current perils through more voluminous eBook lending. But as I have previously noted on this topic, the majority of people engaged in some of the most dangerous, idea-free conduct do not suffer from lack of access, and what they do suffer from, librarians surely cannot solve.

Meanwhile, the ALI Restatement of Copyright project presses onward, ignoring criticism from the some of the most respected minds in IP academia, and is another example of an effort to weaken copyright law to serve that chimeric, cultural progress enabled by digital technologies. The 2014 memo articulating the rationale for the Restatement project states, “…it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.” Yes. It falls to the courts. Or to Congress to rewrite the law. But impatient with these core functions of the Republic, a small group of ideologues took it upon themselves to write an alternative copyright law. And in the service of what?

Many of these same ideologues and associated organizations inveighed against passing the CASE Act to provide a small-claim copyright remedy for independent creators. Ironically, this is an amendment to copyright law in response to the digital age—namely, a response to rampant infringement enabled by digital technologies. But the “fixers” of copyright do not support proposals for independent authors to enforce their rights. They will likely continue their opposition as the small claims board begins operating next year, and their attacks will surely reiterate those virtues of digital life which have yet to manifest.

Looking solely at the U.S., it is tough to make the case that the open floodgates on content have, on balance, had a salubrious effect on the quality of discourse. The level of rancor and vitriol, from Capitol Hill to Main Street, has already boiled over in some of the worst spectacles in our history, and it shows no sign of abating. If experiments in copyright “fixing” were a drug trial, and “information” the main ingredient used to fight virulent idiocy, we would have to conclude that the treatment has little or no mitigating effect on the disease. Yet the copyright “fixers” continue to insist that the problem is dosage—that all we need is more.

It is only in the last few years that the American public, Congress, and the press have generally soured on the tech-utopian vision. While complaints vary across the political spectrum about, for instance, the conduct of social media companies, it does seem clear that the policy of laissez-faire for all things internet is about to expire. And a major reason for this change in direction is a broad recognition that the original theory—leading to the experiment in letting everything flow and expecting the good to outweigh the bad—has proven to be deeply flawed. So, in light of the fact that the “fix copyright” agenda was largely founded on the presumed success of that experiment, maybe it’s time to put down the toolbox and take a pause.

SAS v. WPL Litigation is of Great Importance to the Smallest Creators

Software companies SAS Institute of the U.S. and World Programming, Ltd. (WPL) of the UK have been litigants for more than a decade. By all accounts, WPL presents as a bad actor which lazily cloned SAS’s world-class analytics software. But before weighing the facts necessary to consider claims of IP infringement, the Federal Circuit Court of Appeals must first overturn the errors of copyright law applied by a Texas District Court, lest those holdings further weaken the already tentative position of independent rightsholders.

Presumption of Validity

I’ve spent a lot of time recently talking about formalities in U.S. copyright law (particularly with regard to the Unicolors and Valancourt cases), and it is recognized by those who care about indie creators that certain mechanisms in our copyright system already disadvantage entrepreneurial rightsholders. The individual or small-business creator can hardly be blamed for smirking at the fact that copyright attaches automatically to a work upon fixation, when that statutory provision barely vests her with any real power to enforce her rights. Enter the inducement to register.

The primary incentive to timely registration of works with the Copyright Office is that it allows the copyright owner to obtain statutory damages and legal fees upon successful litigation of an infringement claim. But another essential inducement to registration is the “presumption of validity,” meaning that a court will presume at the outset that the work at issue is properly a subject of copyright protection based solely on its having been issued a valid registration by the Copyright Office.

The reason the presumption of validity is critical, and decades-long precedent, is that it correctly places the burden on the defendant to prove a lack of copyright in the work(s) used, if non-copyrightability is to be presented as a defense. The district court in SAS reversed this principle, placing the burden on the plaintiff to prove copyrightability of register works at trial, and then aggravated this error by engaging in an extraordinary copyrightability analysis of its own design it named a “Copyrightability Hearing.”

Not only was the hearing itself an attempt to plough new ground by this court, but its analysis was improper, citing certain features of the work (e.g. open source), which do not inherently raise copyrightability questions, and then arrived at the untenable logic that the protection of a whole work may be undermined simply because it contains unprotectable elements.

Undermining Copyrightability Itself

As noted in my first post about this case, arguably all works contain unprotectable and protectable elements, and I cited the motion picture as a highly complex combination of such elements which are assembled to compose the finished movie. Among the copyright registrations made for the project will be the motion picture as a single unit, comprising its many parts—protectable original, protectable sublicensed, and unprotectable common elements—under a single title.

Imagine the cost and time if the owner of the motion picture were required to re-prove at trial the copyrightability of the entire film through analysis of the various components and then prove that the arrangement and use of those components is sufficiently original for copyright to attach in the first place. And that’s before proceeding to trial of an infringement claim.

Now, imagine that burden is borne by the independent illustrator, photographer, writer, or music composer, if this district court’s abrogation of the “presumption of validity” were allowed to stand. “The plaintiff would face the insurmountable task of proving a negative—that all of his work is not in the public domain or not an idea,” states the amicus brief filed by Copyright Alliance.

The opportunities for independent creators to enforce their copyrights are already hamstrung by the authors’ limited resources and our overly bureaucratic system. As a result, the overwhelming majority of American creators of works do not participate in the U.S. copyright system. And that is presumably what the copyright detractors want to see.

It is no surprise that those who scorn the existence of copyrights—either because weak protection is in their financial interest or because they are disciples of the Tao of Lessig—have endorsed the district court’s findings in SAS. Because if one hopes to further erode the rights of individual creators, or, perhaps, even industrial creators, enshrining this court’s rulings as precedent would be a very effective means to achieve that end.

Courts outside the Second and Ninth Circuits can be unpredictable when it comes to copyright law; but here, the Texas district court’s novel approach might fairly be described as eccentric, if not downright misguided. For the sake of creators much smaller and more vulnerable than SAS, the Federal Circuit must reverse that court’s multi-faceted errors of law before this case can proceed to the merits of the actual claim.