Category: Copyright

How Valuable Are Works That Have Lost Value?

Picking up on one of the big copyright themes of the month—the re-opened public domain*—scholars James Boyle and Jennifer Jenkins were hosted last week by Joshua Johnson on his show 1A, produced by public radio station WAMU in Washington, D.C.  Boyle and Jenkins are leading members of the Center for the Study of the Public Domain at Duke University Law, and, as one might guess, advocates for shorter terms of copyright protection.  A number of topics unrelated to the public domain were covered, but I want to focus on the central theme the professors bring to the discussion.

Using the metaphor of the iceberg, Boyle and Jenkins tell us that better than ninety percent of works under copyright have lost market value—that, in fact, most works lose their market value well within twenty years after publication.  Based on these data—assuming we can take them at face value—they assert that copyright’s term of protection serves some “two percent” of works while doing a disservice to society by “locking up” the lion’s share of works that no longer even generate revenue for their authors.  

From these premises, they derive the conclusion that copyright is failing in its purpose to “promote progress” by sequestering a vast trove of material that might be used to produce new creative works and/or may be useful for libraries and archives. In this regard, I believe they overstate the value of the public domain for new authors while taking the wrong approach to solving a legitimate challenge for librarians.

The Public Domain and New Authorship

The view promoted by Boyle and Jenkins is over-reliant on the generalization that creators build upon works that have come before.  This is certainly true, but not necessarily in ways that can be taken so literally as to assume that authors need a certain volume of works in the public domain the way a farmer needs a certain amount of nutrients in the soil.  

Only a segment of creators at any given moment seek to use existing works in ways that implicate copyright; and a portion of those uses can still be accomplished through licensing.  Add to this the lion’s share of creative production that neither considers nor conflicts with existing copyrights, and it’s little wonder that what data we have reveal a general increase in creative output, even after the term extension of 1998. 

The “shrinking public domain” narrative with regard to new creation is hard to reconcile with, for instance, IIPA reports that continue to show growth year after year in the core copyright sectors.  And, as noted in my last post on this topic, when it comes to enforcement, copyright critics never fail to mention that we’re enjoying more creative output than ever before. So, clearly, authors are not choking on the lack of PD material in the air.

Mapping the Works Under Copyright

Meanwhile, if there is value to the “iceberg theory” Boyle and Jenkins present, it begs important questions on its own. The reality that most works produced in any given period (regardless of copyright) lose market value fairly quickly is both obvious and, quite possibly, irrelevant.  For instance, out of that large mass of submerged iceberg, how many works are so inherently transient as to be of little to no discernible cultural value?  How many diet books, romance novels, auto-repair manuals, self-help guides, exercise DVDS, etc. comprise the ninety-plus percent of “locked up works”?  I don’t know that answer either, but it should be addressed before anyone slings around big numbers for dramatic effect.

In his book (and I admit to not yet reading the whole thing), Boyle insists upon the need for empirical evidence thus:

“I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working.” 

That being the case, Boyle should agree that it is not sufficient to refer generically to “what creators might do” with works that fall into the public domain that they might not otherwise have done while the same works were under copyright.  Most articles and blogs on the subject tend to be tautological.  Look at what could be in the public domain!  Copyright on a work could last over 120 years!  Copyright terms started as 14 years with a 14-year renewal in 1790!   All of these sparkly bullet points, or tweets, are attractive to the already copyright skeptical, but none of these statements demonstrates how the current term is too long.

Addressing a Real Need

All that said, there is indeed a subset of zero-market-value works under copyright for which there is a clear social interest, and which Boyle and Jenkins address in their overall advocacy.  Where libraries or archives have obtained an interesting collection of works—say a body of obscure sound recordings from the 1930s and 40s—the institutions are frustrated by the fact that the uncertain copyright status of these works makes them apprehensive about building what could be a very useful online archive.

The inability to identify the rightholders in these cases (a.k.a. the “orphan works” problem), combined with the duration of copyright leaves the library or institution stranded.  And, as per the “iceberg” metaphor, these works aren’t making anybody any money anymore, so the fact that they’re captured by copyright functionally contradicts copyright’s purpose to “promote progress.”

I agree with this complaint in principle, and so do many copyright advocates.  But focusing on the length of terms to solve the issue is both wrongheaded and a needless waste of resources.  If we first acknowledge that the librarians’ problem in this case is actually the result of a relatively new opportunity (i.e. making works widely available online), this reframes the conversation in context to historic precedent whereby carve-outs in the statute have been made specifically for libraries, archives, and other non-commercial, public-serving institutions. 

Because American copyright terms match those of the 175 other signatories to the Berne Convention treaty, a stubborn agenda aimed at shortening those terms is almost certainly a futile exercise; and even if some incremental “victory” were achieved (i.e. reverse the 20 years since the CTEA), this would not entirely solve the uncertainty/orphan problem for all those works the libraries and archives would like to make available.  It is politically and pragmatically more realistic to collaborate with copyright interests with the aim of carving out a new, digital-age exception based on the class of user rather than the duration of copyright on the various works in question.  

Likewise, returning to Boyle’s and Jenkins’s iceberg narrative, it would probably be easier, and more useful, to advocate a new statutory exception for libraries et al than to attempt to correctly map the universe of non-market-value, copyrighted works and then try to demonstrate—other than by leap of faith—how those tide pools of sequestered material are in fact stifling the creative growth of the nation.  As stated, it’s a very hard case to make against the backdrop of the visible part of the iceberg—a body of works under copyright, and with market value, that is already larger than the average person can experience in a lifetime.

*January 1 was the first day that copyrighted works entered the public domain since passage of the term extension in 1998.  

Ocasio-Cortez Video a Good Example of What Rights Holders Really Want

Some news hit the fan late last week that certain parties tried to embarrass newly-elected congresswoman Alexandria Ocasio-Cortez by sharing a video of her dancing with college friends on a Boston rooftop, riffing on the 80s film The Breakfast Club to the tune by Phoenix called “Lisztomania.”  Why anyone imagined this would shame Ocasio-Corez is a mystery to me, but the reason it’s a subject here is in response to an article in Wired alleging that “the only reason you can watch the video now is because of a copyright battle that was settled five years ago.”  As usual, the reporting in this article is rich in attitude but poor in comprehension of copyright law. 

For starters, in her zeal to criticize copyright, writer Louise Matsakis did not look very closely at the AOC video on YouTube, where two bits of evidence demonstrate that its presence on the platform has nothing to do with a settled 2013 litigation between copyright reform activist Lawrence Lessig and Phoenix label Liberation Music.  The first clue is a timeline problem because the video was uploaded three years before Lessig’s confrontation with Liberation, and the second is that little statement below the video, which reads “Licensed to YouTube by Liberation Music, etc. …”. 

I know it’s not very exciting, but the music in this video is simply licensed by the platform, which brings up a broader point that I’ll get to shortly.  For the moment, though, I do not want to minimize the relevance of stories like Matsakis’s confusing the hell of people with regard to copyright law and what is generally called “remix culture.”  It seems clear that a reasonable takeaway from this article is an impression that the AOC video represents a fair use of the song “Lisztomania” and that we have Lessig to thank for affirming that for us.  Not even close.  

In 2013, Professor Lessig included various “Lisztomania” inspired mash-ups and spoofs in the AV he used to support a lecture on the subject of remix culture and his view that copyright enforcement hampers the emerging experiences of digital-age consumers.  When Lessig posted a video of this lecture online, Liberation Music (probably unwisely) filed a DMCA takedown and subsequent lawsuit against Lessig, which was eventually settled in Lessig’s favor. I do not know all the particulars of that conflict, but even if we stipulate that Lessig’s use was unequivocally a fair use, the video featuring “Sandy” Ocasio-Cortez is not.

While this video, and many like it, may (if we really stretch) be considered a comment on 80s culture, on The Breakfast Club, etc., the relevant facts are these: the video makes use of the entire song; the users make no creative changes to, or substantive comment upon, the song; and the song is synched to just over four minutes of motion picture.  This is a classic example of a use that traditionally requires two types of music license, and there is no reason to expect that any court would find fair use in a hypothetical litigation.  

In particular, as a work hosted on YouTube, the video would absolutely be considered a substitute for access to the song through otherwise licensed channels and would, therefore, fail under the fourth prong of a fair use analysis.  Even though the friends of AOC made this video for fun, and it seems wrong to expect that they would ever license the music for such a purpose, the reality is that most rights holders understand that.  What they are not cool with is YouTube earning a fortune from the traffic generated by hosting musical works while it pays songwriters and artists somewhere between a pittance and nothing for that privilege.

Returning to the reason why a video like this one (if it were not licensed) would fail under the fourth prong of the fair use test, it is widely recognized that YouTube is a globally-available substitute for other, paying or better-paying, channels for listening to music.  Sure, this week people will watch the AOC video out of curiosity generated by the news about her—views jumped about two million since I looked on Friday—but in general, YouTube is how millions of listeners play songs they want to hear, regardless of what the videos display.  

So, if 100 users upload a song for 100 different reasons, and each channel gets one million plays, that’s one-hundred-million public performances YouTube gets to monetize, possibly for free.  And that is the complaint songwriters and artists have. It is the reason why proposals for change (e.g. the EU’s Article 13) have been presented—not generally to stop these uses but to share in the revenue generated by them.  And that returns us to the absurd irony that, for all the legal incoherence in Matsakis’s article, the AOC video is actually a perfect example of what artists want—licensed use by the platform!

As a simple comparison, the video-makers in this case are like the local musician who wants to perform at Open Mic night at some club.  Nobody expects that guy to pay for performing rights licenses.  Instead, the venue—as the only money-making entity in the mix—pays performing rights licenses to cover most songs, so the musicians who come to Open Mic can perform whatever they want.  In this analogy, YouTube is the (very big) money-making venue; the college students who made the AOC video are the local musicians; and the copyright owners of the songs don’t want to stop the use, they just want the venue to pay a fair license fee.  

As for the rights holders who do occasionally have reason to stop a use, this should generally be respected, too, but is a case-by-case consideration that truly exists between the user and the copyright owner.  

Meanwhile, the narrative spun by YouTube—with the help of Lessig, the EFF, et al—is that the big bad rights holders should “leave the kids alone,” and this theme is transposed into articles like Matsakis’s in Wired, which then fuels the misconception that videos like the one featuring AOC would be fair use if challenged.  This breeds more unlicensed uses, often of works owned by rather small and modestly-resourced creators, from which YouTube reaps the financial benefit while the creators get nothing.  

As Ocasio-Cortez styles herself a champion of the “little guy,” I’m happy to see our newest millennial Member of Congress laugh off the haters of this innocuous video, but I also hope that, as a representative, she helps foster an understanding that the songwriters and musical artists are the little guy trying to stand up to corporate behemoths like YouTube.  

Are You Having a Public Domain Party This Year?

Should auld creative works be forgot,
And never brought to mind?

There may be any number of reasons to feel anxious about the coming year, but at least we can take comfort in the fact that the song “Yes! We Have No Bananas” will be entering the public domain.  Sure, this may seem like clinging to a bit of floating timber immediately after a shipwreck in the middle of the Pacific Ocean, but one must hold onto hope where one can and start paddling.

I wish I could remember the right comedian to credit, but whoever it was, he made a joke that resonates this particular New Year’s Eve in context to the “big” copyright news of the day.  He said, “We should legalize pot just so all the stoners will shut up about it.” In sympathy with this comic’s weariness at repetitive zeal for small matters, I too am excited about tomorrow’s milestone in copyright history when, for the first time, works protected under the terms of the Copyright Term Extension Act (CTEA) of 1998 will enter the public domain.*  

To be sure, I am not excited the way the folks are at the Internet Archive, who will be co-hosting an event called The Grand Reopening of the Public Domain, where attendees can join special guests like Lawrence Lessig and Cory Doctorow to raise a glass and toast the arrival of works published in 1923 as though they have been missing for years. No. I’m excited about this particular copyright threshold because it just might be the day when the ebullient crusaders of the public domain will finally shut up about it. I mean I know they won’t, but one can dream. It is the New Year after all.

You see, for a very long time, many copyright critics have been insisting—in academic papers, in blogs, in tweets, etc.—that the production of new creative works depends on a “rich public domain,” and, therefore, the 1998 term extension has been depleting the common creative wellspring like a badly managed natural resource. Of course, this is the talking point when the subject is copyright’s term of protection; when the subject is enforcement against mass, online infringement, the response from many of the same people is that we are “enjoying more creative works than ever before.” This cognitive dissonance is never acknowledged.

The belief that 2019 marks anything other than a symbolic milestone for copyright critics to share a group high-five is based on the parlor trick that it is always easy to make predictions which nobody can effectively disprove. I have little doubt that, in years to come, someone somewhere will do something interesting with works from 1923, 24, 25, and so on, as works published in these years fall into the public domain; but at the same time, I also predict that there will be little measurable difference in overall creative output as a direct result of this much-celebrated threshold in copyright history.

I recognize that this prediction begs the question as to how one measures “creative output,” and that it wants classifications like professional vs. amateur, niche vs. popular, indie vs. industrial, etc. But by any metrics we might use, my skepticism is grounded in four simple, observable facts: 

  1. works protected by copyright are not inaccessible for consumers or new creators;
  2. most creators “build upon” existing works in ways that do not implicate copyright infringement in the first place;
  3. creative works have been produced for centuries, so the entire public domain universe is already much larger than the universe of works under copyright;
  4. with regard to general access, online piracy has forced so many works into an effective “public domain,” that it is absurd to argue that the copyright expiration on works published in 1923 represents significant, new opportunities of any real consequence.

None of what I say is meant to diminish the value of the public domain or to advocate perpetual copyright. But I do want to temper the excitement of the moment, which seems to imply that new possibilities for enlightenment and creativity are about to be unshackled from the bonds of darkness, ignorance, and greed. According to Wikipedia, the 1923 retail price for Agatha Christie’s Murder on the Links was $1.75 ($25.70 in 2018); and today, the Kindle versions of Christie novels average between $2-3, while libraries still provide books for free. So, copyright is doing what exactly to general access to these works?

Also, I see that the first of Charlie Chaplin’s feature films, A Woman of Paris, will fall into the public domain tomorrow. This brings to mind the day a few years ago when my teenager went to some school event dressed as Chaplin’s Little Tramp, and all her peers asked who she was supposed to be.  Assuming my kids’ school is a fair representative of “average” in America, it would appear that Chaplin’s Tramp, once the most recognized character in the world, may be lost to oblivion among contemporary adolescents.  

Assuming this is true, it cannot be explained by copyright terms. After all, every one of Chaplin’s shorter films, including his six-reeler The Kid, is in the public domain.  And doubtless many of these films are online, uploaded to YouTube and elsewhere. So what accounts for this gap in cultural literacy among my kids’ contemporaries? Several factors, I’m sure, not least of which is that they are consuming very different forms of culture (e.g., YouTubers sharing personal experiences) that are as alien to me as Chaplin is to them.  

Whether we can judge our kids’ cultural experiences to be qualitatively better or worse than our own experiences at the same age, I’ll bet anything that copyright terms will be a non-factor in any comparative analysis one might attempt. What we can know for sure is that the next generation of adults has more on-demand access to more content—through both legal and illegal channels—than any generation in the history of people; and yet, it is not entirely clear that they “know more” than their parents and grandparents.

Relatedly, I saw a classic example over the holiday of a case for perpetual copyright (at least rhetorically) in the form of a TV film adaptation of Oscar Wilde’s The Canterville Ghost.  It was a production so devoid of several major themes, or humor, present in the original story that Wilde himself would be forgiven for haunting the producers, to say nothing of legally stopping the project from being made. So, works falling into the public domain do not exclusively result in uses of great value. Had the same producers been required, by license, to be more respectful of the original work in the teleplay, the market value would be roughly the same, but the end product would likely be better.  

I acknowledge that everything I say here would still hold true if copyright terms were, say, twenty years shorter than they are today. I also believe that repositories like online archives are extraordinarily useful and understand why an archivist would want to make as many works available as soon as possible. But the general conclusion that “copyright terms are too long” is largely tautological, and individuals like Brewster Kahle of the Internet Archive are too eager to misrepresent copyright history and to attack the interests of living, working creators.    

The general message boils down to copyright terms are too long because they seem too long, even though nobody has yet demonstrated with any substantive data that the term of protection is having a negative effect on copyright’s original purpose to promote progress. Meanwhile, as explained many times, the CTEA was not some capricious, arbitrary term extension, but was effected in order to establish parity with trade partners in the EU and elsewhere so that American authors had the same benefits as their foreign counterparts.  

So, in response to all the hype about what will enter the public domain tomorrow, next year, and the years to follow, I believe this moment is a lot of ephemeral noise (i.e. an excuse for a party) that has scant relevance to the reasons why liberal democracies demand a rich, diverse anthology of informative and creative works in the first place. After all, one need only glance at the apparent success of toxic and fake content online to conclude that it takes much more than flooding the public domain with old works to foster enlightenment. And in that regard, the start of this post was unfair to the “stoners” because the arguments for legalizing marijuana actually had data behind them.

Wishing everyone—even the copyright critics out there—a happy and safe New Year. 

*  The CTEA established the current terms of copyright protection:  life-of-the-author, plus 70 years; or the shorter of 95 years from date of publication or 120 years from date of creation for works-made-for-hire. See statute.