Is Current Copyright Legal Framework Useful For Culture?

Is current copyright
legal framework
useful for cu lture?
Guillermo Olivares 1
“Ideas should
freely spread from
one to another over
the globe, for the
moral and mutual
instruction of man,
and improvement
of his condition”.1
Thomas Jefferson
1
Thomas Jefferson, “Letter to Issac MacPherson
(August 13th, 1813)” in The Writing of Thomas
Jefferson, (Washington, 2002) http://press-
pubs.uchicago.edu/founders/documents/a1_8_8s12.htm
l
1. Introduction
During the last 10 years or less, creative
industries have been the battlefield of a relentless
struggle undertaken by global media corporations
against what they have called in a very general,
broad and, probably, intended way: piracy of
copyrighted works. In this fight these companies
have used all the tools available, including
lobbying lawmakers to make their agenda been
approved, using mass media to spread their
message and manipulating public opinion
claiming that they are just fighting to defend the
rights of creators and promoting their creativity.
Nonetheless, when one realises that
lawyers have become a sort of main characters in
the development of creative industries, more than
authors or creators themselves, it is necessary to
wonder if these current regulations on copyright
are really helpful for culture and creative
industries.
The following essay can be helpful to
contextualise and understand the current state of
copyright framework, some of its antecedents
and further implications for cultural and creative
industries.
2. Contextualising
During centuries or even thousand of
years, humanity progressed in the way of
learning from past mistakes or challenging
previous knowledge. Throughout history,
tinkering has been a natural method in the
learning process as, indeed, it is now in primary
school for children. This method was historically
natural to everyone so that nobody claimed for
the use of these established scientific theories or
artistic values. It was in the nature of societies to
take advantage of previous works to make
progress in different fields of human knowledge.
On one hand, creators profited socially and
economically with the use of their works by
selling them, performing them or even letting
others to use them and, on the other hand, society
benefited with new forms of expressions and
works of art.
Moreover, society received a further
benefit, a brand new cultural background from
which to start new artistic or cultural works in the
normal way of derivative works by taking it as a
model or by modifying it.
For instance, when Buster Keaton opened
his film “Steamboat Bill Jr.” he was adding a
new and extraordinary piece to his outstanding
career as a performer in silent cinema, but, to a
certain extent, he was also establishing a new
creative background for further creations. Not
because of mediocre performers were waiting for
new works to plagiarise, but because it was -and
it is- a normal behaviour among creators to
borrow inspiration from the surrounding cultural
environment. That happened when Walt Disney
created and screened for the very first time a
Mickey Mouse adventures film called Steamboat
Willy2. There were no lawsuit against anyone,
there were no claims on plagiarism and no one
was treated as a felon.
Creative expressions were considered a
kind of property, as indeed they are, but a
property with unique features that made them
quite different from others properties such as
land, cattle or vehicles.
One of its main and historic features is
that is a property with a limited extension in time,
after an appropriate term devoted to the profit of
the author and potential heirs, the cultural
product becomes part of the public domain,
where can be freely used, modified, translated,
2
Lawrence Lessig. "Free culture:the nature and future of
creativity". (New York: Penguin Press, 2004)
quoted or mixed by others creators who make,
then, a new generations of cultural works. In that
way, society used historically to progress.
However, the perception of content
industry on copyright changed radically when the
physical reproduction of books, records and even
films was made possible. Nevertheless, this
change became specially notorious when Internet
arrived to change the way humanity
communicates, spreads and shares contents. The
former reproducibility suffered dramatic
transformations due to technological
improvements which were easily available to
common users at an affordable price.
Thus, this reproducibility became in a sort
of hyper-reproducibility in which users have the
possibility to cut, copy, mix, modify or alter any
type of content and also make the resultant works
available to other users within hours or even
minutes.
As consequence, creators, stakeholders
and right owners when realised on this behaviour
tried to protect their works, but it can be stated
that in this attempt they were beyond the tradition
in Western culture of cultural progress as argued
in the above arguments.
In such way, the industry started the
campaign against what it called piracy, which
one can witness everyday on media.
3. Current legal framework
Since 1710, when the first legal
framework on copyright was established in
England under the name of Statute of Anne in
relation with the book publishing business a
complete transformation had happened in legal
systems in order to protect those right.
One can check a considerable number of
laws on this topic and all of them clearly state
that the main purpose is to protect the rights of
creators and artists to their work and their
creativity.
For instance, the very same Office of
Copyright in the United States informs on its
online handbook that "copyright is a form of
protection provided by the laws of the United
States (title 17, U. S. Code) to the authors of
“original works of authorship"3.
However, if one reviews some of the most
controversial modifications in the copyright
legislation, specially in the US legal system, this
purpose is not so clear.
Firstly, the Copyright Extension Act of
19764 states that to be protected by copyrights
works were not longer required to be registered at
the Copyright Office. From that moment on, the
copyright protection was automatically applied to
every work whether published or not. There were
3
United States Copyright Office, “Copyright basics”,
Washington, 2008.
http://www.copyright.gov/circs/circ01.pdf
4
United States Copyright Office, “Copyright law of the
United States”, Washington, October 2009.
http://www.copyright.gov/title17/
no formalities required to follow to make a work
protected not even being published.
Secondly, in 1994, the Uruguay Round
Agreement Act5 signature by President Bill
Clinton represented the immediate and automatic
restoration of copyrights in the US to the
majority of the foreign works which their rights
expired or were not renewed in the US. Those
works were already in the public domain, but
when the President Clinton signed the agreement,
he changed dramatically the situation of public
domain, and consequently the rights of the public
and creators to the access to cultural goods.
Thirdly, in 1998, the US Congress
5
United States Copyright Office, “Notices of restored
copyrights”, Washington, revised August 29, 2007,
http://www.copyright.gov/gatt.html
approved the Sony Bono Copyright Term
Extension Act6 which extended for 20 more years
the term of copyright by that time already
extended to 75 years, so in this way the copyright
term are now 95 years. It is very clear, now, that
US legislators had just one work and one
company in mind -Mickey Mouse and Disney-
when approved this controversial act7.
Based on the last one, maybe the
congressmen thought exclusively in the
protection of the Disney's rights, but they
affected and altered totally the whole tradition on
copyright matter in the US and to a great extent
6
The Library of Congress, “S.505”, Washington ,
http://thomas.loc.gov/cgi-bin/query/z?c105:s.505.enr:
7
Simon English, “Gloves are off over US 'Mickey Mouse
Act'”, The Daily Telegraph, Octiber 8th, 2002.
http://www.telegraph.co.uk/finance/2829530/Gloves-
are-off-over-US-Mickey-Mouse-Act.html
in all the world.
In addition, if one analyse the
combination of all these legal measures, the
Congress along with protecting some rights in
favour of just a few right holders, made a huge
amount of works unavailable to the public, even
those considered orphan works8 which in 1998
should have been put in the public domain.
They have also privatised cultural goods
already in the public domain taking them away
from their legitimate owner: the whole
Humanity.
Besides the legal view, there is a
economic dimension to be considered in these
8
Orphan Works are those whose copyright holders are
very difficult or impossible to make contact with.
http://www.publicknowledge.org/issues/ow
modification and to be taken into account in
further analysis.
For instance, in his dissenting vote in the
Eldred vs. Ashcroft court case9, the US Supreme
Court Justice Stephen Breyer states that “in
conjunction with official figures on copyright
renewals, the CRS Report indicates that only
about 2% of copyrights between 55 and 75 years
old retain commercial value—i.e., still generate
royalties after that time”10.
Consequently, all the 98% left has 20
more years of no profit and according to the law
no possibility of cultural life, because if one uses
9
Eric Eldred, Internet publisher and former computer
programmer, tried to challenge the constitutionality of
the Sony Bono Copyright Extension Act by
10
Eric Breyer, “537 U. S. ____ (2003)”, Washington,
January 15th, 2003, p7.
http://www.copyright.gov/docs/eldredd1.pdf
a work under copyright without permission could
be sued and probably condemned to pay
millionaire damages.
So taking into account just this fact to
make an initial conclusion: It is all about greed.
Congressmen instead of protect the
superior interest of people as signalled in the US
Constitution, took side of global corporations
defending and promoting the privatisation of
public goods by creating laws and by modifying
them to make them to fit in the stakeholders
agenda.
In the US Constitution (Article 1, Section
8,. Clause 8)11 is clearly written the interest of
11
“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
lawmaker for cultural creations and scientific
knowledge, but it is also clear that the rights
conceived for them are just for a limited term.
Nevertheless, according to the Sony Bono
Copyright Extension Act and the further revision
in the Supreme Court (Eldred vs. Ashcroft case)
this idea of limited times may become in a tacit
perpetual term, because the US Congress has the
attribution to review and modify the copyright
term, despite being explicitly stated in contrary in
the US Constitution.
So if one considers just these ideas, one
can say that the current copyright legal frame has
been built considering a minimum amount of
works and a majority of those that now should be
discoveries;”(US Constitution,)
part of the public domain have been captured and
to a certain extent stolen from the public.
For all the reasons expressed above, one
has to be careful when adhere openly and
sincerely to these claims on copyrights, because
it is normal to sympathise with authors, artists
and creators and their rights to their works.
Even more, corporations lobbyists
normally appears on media talking about the
right and fair interest of creators, but they hide
the real interest that industry has on these works.
Who can be against artists or authors?
Who can support piracy? One cannot be in any
way in favour of stealing the rights of artists on
their work.
However, these lobbyists attempt to mix,
most of the times successfully, many different
and unrelated behaviours of users below the
concept of piracy.
So, they condemn even legal and
legitimate uses, i.e. download and share films
already in public domain such as “The night of
the living dead” (1968) by George C. Romero12
or “Nosferatu” (1922) by Friedrich Wilhelm
Murnau13 along with proved piracy behaviour
like to copying original DVDs and selling them.
If one can express the questioning on this
issue in a different way, one can say, then, if
copyright primarily intend to protect the rights of
12
The film is available on
http://www.archive.org/details/night_of_the_living_dea
d
13
Originally titled Ein Symphonies des Grauens (Film
available at www.archive.com
http://www.archive.org/details/nosferatu)
authors and their potential creativity what kind of
benefit will receive a creator 95 years after the
publication of their work when he and his direct
heirs surely will be dead.
One core reason for all those efforts and
strategies taken by corporations can be found in
the expressions by Mark Getty, the owner of
Getty Images, one of the biggest copyright
related companies, during an interview in The
Economist. “Intellectual property is the oil of the
21st century. Look at the richest men a hundred
years ago: they all made their money extracting
natural resources or moving them around. All
today’s richest men have made their money out
of intellectual property”14.
14
The Economist, “Blood and Oil”, March 4th, 2000, 68
4. The crisis of a model of
business
The explosion in internet file sharing
make the traditional content companies to notice
that the market was changing and the trends of
consumption were progressively modifying
towards a virtual environment.
However, they were blind to preview the
dimension of these changes and they also were
completely incapable to react in terms of industry
and business within a free market to these
technological challenges.
On the contrary, they started a endless
legal war against everyone who can be a possible
felon on copyright matters. Thus, everyone as a
consumer or user is now a potential law breaker.
The very first chapter of this war was
Napster, and paraphrasing the blogger and author
Cory Doctorow the outstanding issue in the story
was not the appearing of Napster, but the way
industry managed to destroy this project15.
Since then, industry and their
protectionist agenda has used its influence on
lawmakers and politicians to make the file
sharing of protected content a crime even more
serious than, for example, medical malpractice.
For example, in 1997 the Great Ormond
Street Hospital had to pay £65,000 to the parents
15
Cory Doctorow, “Content: selected essays on
technology, creativity, copyright and the future of the
future”, (San Francisco, Tachyon Publications, 2008)
of a 12-year-old child who died after he was
wrongly injected to the spine with drugs for his
cancer16. In contrast, in 2007, Jammie Thomas, a
30-year-old single mother from Minneapolis, was
found guilty of wilful infringement of copyright
by file sharing 24 songs and the verdict was a
$1,920,000 award for damages17.
Even more, the No Electronic Theft Act,
also known as NET act, approved in the United
States in 1997 establish that copyright
infringements could be punished with a
16
Chris Gray, “Medical negligence pay-outs double in
three years”, The Independent, Mondat August 7th,
2000. http://www.independent.co.uk/life-style/health-
and-families/health-news/medical-negligence-payouts-
double-in-three-years-710637.html
17
Mikey Harvey, “Single-mother digital pirate Jammie
Thomas-Rasset must pay $80,000 per song”, The
Times, June 19th, 2009,
http://technology.timesonline.co.uk/tol/news/tech_and_
web/article6534542.ece
maximum of 5 years of prison and fines up to
$250,000. The NET act also increased the
statutory damages up to $150,000 per work if
wilful infringement is proved18.
Nevertheless, this is not the first time that
industry claims that a new technology is
destroying creative industries and inflicting
serious economic damages to industry.
In this sense, during the XX century the
world witnessed as stage performers criticised the
appearing of radio, broadcasters were afraid
when films opened in cinemas, Hollywood
producers saw a negative future for them when
television became a reality, but now in 2009, one
18
Departamente of Justice, “The No Electronic Theft
("NET") Act”, February 18, 1998,
http://www.justice.gov/criminal/cybercrime/17-
18red.htm
has the chance to go out and to attend the theatre
or the cinema or one can decide to stay at home
and to choose whether to listen to the radio or
watch Television. All these stakeholders
prophesized tragedies on media and cultural
industries that never happened. It can be
expressed that the market simply had the
responsibility to adapt itself to new players and
new rules. Why this time should be different?
Itunes, Spotify and Last.fm, just to
mention some projects, have shown that both
adapting to new technologies and success are
possible and what is in crisis is just a model of
business, a model stuck in the 90's or even in the
end of the 80’s, based, for instance, on the sales
of CDs, but no necessarily on downloading
music.
In addition, copyrights has converted the
market in a complete disorder and became in an
unexpected threat to customer, due to false
claims of rights from corporations that have
adopted the habit to sue users even if they have
no the right to do it.
Some blogger and lawyers have called
this behaviour Copyfraud19, which means that
companies in the business of intellectual property
claim copyright and even threat with suit and trial
to users for contents that have no copyrights or
are licensed under others licences.
For instance, the news agency Associated
19
Jason Mazzone, "Copyfraud", Brooklyn Law School,
Legal Studies Paper No. 40 New York University Law
Review, Vol. 81, p. 1026, 2006
Press (AP) charged 12 dollars bill to a user20 for
the use of an excerpt that after was discovered it
was written by Thomas Jefferson21 in a letter.
Those words were expressed in 1813 and they are
no more under copyright regime, so anyone can
use it with no permission or fee payment
involved.
In other words, AP is selling a quote

22
that they do not wrote and even more that they
do not own.
20
James Grimmelmann, “The AP Will Sell You a
"License" to Words It Doesn't Own”, in The
Laboratorium, August 3, 2009,
http://laboratorium.net/archive/2009/08/03/the_ap_will
_sell_you_a_license_to_words_it_doesnt
21
Jefferson, Letter to Isaac McPherson, 1813.
22
The quote bought to AP is the following “If nature has
made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power
called an idea” (Thomas Jefferson)
5. The search for
alternatives
The automatic extensions to copyright
term and the retroactive measures to restore
copyright has been a very profitable and
convenient policy for corporations devoted to
make money in the intellectual property business.
However these regulations has been disastrous
for cultural, academic and artistic communities,
due to the impossibility to check a catalogue of
public domain works. There is no such a list of
works available.
According to Lawrence Lessig a complete
generation of US films will be lost as
consequence of this legal framework, because of
the legal obstacles to use them even within the
fair use exceptions23.
For instance, if one wants to rescue and
restore a film produced in 1935 for academic
purposes due to its artistic or historical value, one
should be aware that as first step needs the
permission of the right owner, to get that
permission one must to identify and localise the
right holder, but in this very unlikely case one
can face three different situations. The first one is
that one cannot find or even identify a right
owner, the second one is that one can find him,
but after doing it the person denies the use of
their material and the third one, the process of
identifying and tracking the owner of these rights
23
Lessig, “Free Culture”, 1999
can reach unaffordable values24.
This kind of corporate behaviour and its
complete legal architecture built not to share
knowledge, but to make profit for corporations
through the exploitation of cultural and artistic
resources convinced the academic, artistic and
technological communities to start working on
parallel projects of licensing tending to return the
sense of sharing and tinkering to the cultural
work as it was historically.
In 2001, one on these efforts became real
when Creative Commons started to act in the
copyright environment. As maybe known this
kind of licensing offers creators and users a series
of choices to distribute and share their work, and
24
Ibid.
some requirements to accede to it25.
Progressively this licence has gained a
good reputation in academic and artistic
communities due to its features which are
respectful with both creators and users.
One of the most outstanding examples in
the use of this licence was the release on the
album “Ghost I-IV” by Nine Inch Nails26. There
are several options for the user to accede to this
record even for free, and according to the license
the user are free to mix and share the material
under certain conditions, for example, to attribute
the record to its author, to distribute the
derivatives works in the same license conditions
and to share for free among users.
25
http://creativecommons.org/choose/
26
http://ghosts.nin.com/
The record was released in March, 2008
and according to The Chicago Tribune27 the band
informed that the sales reached $1,6 million just
after a week and it also received two nominations
to the Grammy Awards.
A second one is the blogger and author
Cory Doctorow, who has released his books
online under a Creative Commons license at the
same time that paperback version. How he
managed to convince his publishers? One do not
know, but the time and the balance have give him
the reason. The same Doctorow express in his
book Content “I've discovered what many
authors have also discovered: releasing electronic
27
Greg Kott, "Reznor's one-week take for 'Ghosts': $1.6
million", Chicago Tribune, March 12th, 2008,
http://leisureblogs.chicagotribune.com/turn_it_up/2008/
03/reznors-one-wee.html
texts of books drives sales of the print
editions”28.
6. Conclusion
When in the 18 Century, lawmakers
created copyright regulations in US and England,
they tried to protect the legitimate rights to profit
on their work of authors and creators.
The extension term considered in this first
stage were reasonable to this premise and to the
natural law as Thomas Jefferson expressed in
1813 in the same letter mentioned before.
“By an universal law, indeed, whatever,
whether fixed or movable, belongs to all men
28
Doctorow, “Content”, 80
equally and in common, is the property for the
moment of him who occupies it, but when he
relinquishes the occupation, the property goes
with it”29,, he clearly stated.
However, in the same way that
technologies improved the publishing and
distribution chain, the growing content industry
attempted to maximise their profit by modifying
the copyright laws.
So, if one can compare the original acts
with the most recent legislation one can notice
that they are completely different and they are
efforts to protect contrasting realities.
The former were laws that intended to
protect the author and their creativity by a limited
29
Jefferson, Letter to Issac McPherson, 1813
term, so in that way benefit society and, in the
latter, laws has been modified to protect profits
of corporations affecting society with the
privatisation of works already in the public
domain, where they stay for all humanity benefit.
The current laws allow industry to sue
and even prosecute internationally to users
accused to infringe copyright regulations who are
threaten to be sent to prison during several years
and paying millionaire damages to copyright
holders.
Along this process, creativity was
undoubtedly the major casualty in this war
against piracy, because usually creators used
piece of arts surrounding them to take inspiration.
But now it is impossible to confirm if a work,
among million of works, belongs to the public
domain or it is copyrighted.
In consequence, nowadays, it is
absolutely understandable that no one want to
take the risk to be suited for using the wrong
work. The costs to investigate the copyright
status, to avoid lawsuits, can be absolutely
prohibitive.
In summary, tinkering has become a
dangerous and risky activity and because of the
risks and the fear is that creativity tend to
diminish, which is contradictory with the original
sense of copyrights laws.
Bibliography
Breyer, Eric. “537 U. S. ____ (2003)”,

Washington, January 15th, 2003, p7.
http://www.copyright.gov/docs/eldredd1.pd
f (accessed 21 December 2009)
Departamente of Justice. “The No Electronic

Theft ("NET") Act”, February 18, 1998,
http://www.justice.gov/criminal/cybercrime
/17-18red.htm (accessed 23 December
2009)
Doctorow, Cory. “Content: selected essays on

technology, creativity, copyright and the
future of the future”, (San Francisco,
Tachyon Publications, 2008)
English, Simon. “Gloves are off over US 'Mickey

Mouse Act'”, The Daily Telegraph, October
8th, 2002.
http://www.telegraph.co.uk/finance/2829530/Glo
ves-are-off-over-US-Mickey-Mouse-
Act.html (accessed 21 December 2009)
Gray, Chris. “Medical negligence pay-outs

double in three years”, The Independent,
Mondat August 7th, 2000.
http://www.independent.co.uk/life-style/health-
and-families/health-news/medical-
negligence-payouts-double-in-three-years-
710637.html (accessed 25 December 2009)
Grimmelmann, James. “The AP Will Sell You a
"License" to Words It Doesn't Own”, in
The Laboratorium, August 3, 2009,
http://laboratorium.net/archive/2009/08/03/
the_ap_will_sell_you_a_license_to_words_
it_doesnt (accessed 21 December 2009)
Harvey, Mickey. “Single-mother digital pirate

Jammie Thomas-Rasset must pay $80,000
per song”, The Times, June 19th, 2009,
http://technology.timesonline.co.uk/tol/new
s/tech_and_web/article6534542.ece
(accessed 23 December 2009)
Jefferson, Thomas. “Letter to Issac MacPherson

(August 13th, 1813)” in The Writing of
Thomas Jefferson, (Washington, 2002)
http://press-
pubs.uchicago.edu/founders/documents/a1_
8_8s12.html (accessed 24 December 2009)
Kott, Greg. "Reznor's one-week take for 'Ghosts':

$1.6 million", Chicago Tribune, March
12th, 2008,
http://leisureblogs.chicagotribune.com/turn
_it_up/2008/03/reznors-one-wee.html
Lessig, Lawrende. "Free culture : the nature and

future of creativity". New York: Penguin
Press, 2004
The Economist, “Blood and Oil”, March 4th,
2000, 68
The Library of Congress. “S.505”, Washington ,

http://thomas.loc.gov/cgi-bin/query/z?
United States Copyright Office. “Copyright

basics”, Washington, 2008.
http://www.copyright.gov/circs/circ01.pdf
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of the United States”, Washington, October
2009.
http://www.copyright.gov/title17/ (accessed 24
December 2009)
United States Copyright Office. “Notices of

restored copyrights”, Washington, revised
August 29, 2007,
http://www.copyright.gov/gatt.html

Is Current Copyright Legal Framework Useful For Culture?

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Is current copyright

During the last 10 years or less, creative

industries have been the battlefield of a relentless

struggle undertaken by global media corporations

against what they have called in a very general,

broad and, probably, intended way: piracy of

copyrighted works. In this fight these companies

have used all the tools available, including

lobbying lawmakers to make their agenda been

approved, using mass media to spread their

message and manipulating public opinion

claiming that they are just fighting to defend the

rights of creators and promoting their creativity.

Nonetheless, when one realises that

lawyers have become a sort of main characters in

authors or creators themselves, it is necessary to

wonder if these current regulations on copyright

are really helpful for culture and creative

The following essay can be helpful to

contextualise and understand the current state of

copyright framework, some of its antecedents

and further implications for cultural and creative

During centuries or even thousand of

years, humanity progressed in the way of

learning from past mistakes or challenging

tinkering has been a natural method in the

learning process as, indeed, it is now in primary

school for children. This method was historically

natural to everyone so that nobody claimed for

the use of these established scientific theories or

artistic values. It was in the nature of societies to

take advantage of previous works to make

progress in different fields of human knowledge.

On one hand, creators profited socially and

economically with the use of their works by

selling them, performing them or even letting

others to use them and, on the other hand, society

benefited with new forms of expressions and

Moreover, society received a further

which to start new artistic or cultural works in the

normal way of derivative works by taking it as a

model or by modifying it.

For instance, when Buster Keaton opened

his film “Steamboat Bill Jr.” he was adding a

new and extraordinary piece to his outstanding

career as a performer in silent cinema, but, to a

certain extent, he was also establishing a new

creative background for further creations. Not

because of mediocre performers were waiting for

new works to plagiarise, but because it was -and

it is- a normal behaviour among creators to

borrow inspiration from the surrounding cultural

environment. That happened when Walt Disney

created and screened for the very first time a

Willy2. There were no lawsuit against anyone,

there were no claims on plagiarism and no one

was treated as a felon.

Creative expressions were considered a

kind of property, as indeed they are, but a

property with unique features that made them

quite different from others properties such as

land, cattle or vehicles.