Introduction3
Stealing an Artist's Work3-4
International Copyrights Laws4-5
Criticisms of the TPP6
The Enforcement of Copyright6-8
The Contradictory U.S. Position8-10
The Excessive TPP Copyright Term10-12
Why Copyright Expanded12-13
Conclusion13
It might seem obvious that the individual creator of a particular work, whether it is a piece of literature, a film or a song, should have full rights to that work and control over how it is used. While for the average person, the concept copyright might seem unimportant or even an inconvenience for them personally, the idea behind copyrighted material has existed for centuries and is a major part of the socioeconomic structure in the West. Violations of copyright happen more frequently than some might expect. The following will examine the role of copyright in the digital age.
Stealing an Artist's Work
A rather old-fashioned violation of copyright can be seen in the example of an English songwriter named Sam Smith who wrote a song entitled "Stay with Me" that was quite similar to one recorded by Tom Petty (Rayman, 2015, Web). After Smith's song was released, a number of people went to great lengths to point out the extent of the similarities between it and the song by Petty. After a bit of legal wrangling, Smith's record company chose to settle with Tom Petty (and his lawyers) providing Petty with credit for the song on the album and significant royalties.
Aside from the fact that this case made clear the unoriginality of modern music, it also made it clear how ridiculous copyright laws are in the digital age. Copyright law is most often used by large corporations and the wealthy (such as Sam Smith and Tom Petty), who have the resources and financial capacity to carry out a prolonged and potentially costly legal battle (that usually ends in a negotiated settlement in any case).
Somewhat ironically, the average American could never afford to be involved in this kind of legal confrontation over copyright. This despite the fact that they can (and many of them do) choose to illegally download however many songs they wish from illegal download sites without any fear of serious legal consequences. Violation of copyright is far more common in the digital age because it is so easy for someone to download a song or stream a video and then provide that digital content to someone else who doesn't have rights to it. Laws (and more importantly law enforcement) have failed to keep up with the advances in technology that are transforming the world in which we live. This being the case, it brings into question whether the preconceptions and conventions we have about copyright actually serve any useful purpose anymore. Is the idea of copyright law out of date, or is it worth extending, modifying or improving?
International Copyright Laws
With regard to digital copyright, one of the most important of these agreements in recent years has been the TPP (Trans-Pacific Partnership). This agreement required many years of negotiations and was finally signed in late 2015 (Greider, 2015, p. 22). It serves as an extension and expansion of the earlier P4 agreement signed by Singapore, New Zealand, Chile and Brunei in 2005. The TPP involved 12 nations in total: the United States, Mexico, Japan, Canada, Australia, New Zealand, Brunei, Singapore, Vietnam, Chile, Peru, and Malaysia. The TPP has a number of features typical of any international trade agreement, such as commitments by the signatories to lower tariffs for any of the other signatories. However, this agreement also has features that have been subject to a good deal of public criticism. A particularly controversial aspect of the TPP is that it will significantly affect how creative works (and in particular digital content) is created and used in the future.
The issue of intellectual property rights has been a point of major disagreement among the various nations that signed the TPP. In fact, it's one of the principal reasons that it took three years to actually finalize and sign the agreement. Throughout the course of the negotiations, there were more than a dozen contentious disagreements with regard to intellectual properties and their long-term protection. The US in particular applied a great deal of pressure to the other negotiators in an attempt to get them to accede to its demands.
Criticisms of the TPP
For private citizens, the TPP has been largely a mystery, since its negotiations and even many aspects of the final signed treaty have been kept secret. However, in late 2015 Julian Assange, leader of the organization known as WikiLeaks, released further information related to the intellectual property section of the TPP. He had previously been extremely critical of the directives laid out in the intellectual property section, and in 2013 following the release of a preliminary draft he had stated:
“We released todaythe secret intellectual property chapter, what they call ‘intellectual property,’ but it’s actually all about how to extend monopoly rights of companiesThey are extending the ability of Disney to criminally prosecute people for downloading films, prosecuting internet service providers, and introducing something they call a ‘patent prosecution highway’ ”.
While these comments by Assange might seem like an exercise in sensationalism and hyperbole, his organization's appraisal of the TPP is in line with that of many other critics of the agreement. These critics of the TPP feel that the agreement is designed to protect the interests of large corporations, rather than those of the citizens living in the signatory nations. In particular, this criticism is especially strident when it comes to the application of copyright law to the protection of digital content.
The Enforcement of Copyright
The enforcement of copyright in our society has a number of philosophical underpinnings and justifications. These justifications and precedents serve as a foundation in our legal system for the actions taken against copyright violators. And as mentioned in the introduction to this essay, it does seem obvious that the creators of works should have exclusive rights to them. The logic behind this concept is that such a system encourages artists, writers and other creative individuals to create new original content that (on the one hand) enriches the world and (on the other hand) provides the content that many industries (film, print, music, etc.) need to survive.
Obviously, the last 20 years have seen the rise of the Internet and this development has significantly impacted the issue of copyright protection and DRM (Digital Rights Management). With a few mouse clicks, any Internet user can now download and redistribute virtually any work they choose, meaning that copyright infringement has become far more common than it ever was before. In this regard, the signatories to the TPP have noted: “Countries differ on the appropriate level of obligation in several areas, including patent rights for pharmaceuticals, copyrights, and enforcement”.
Canadian representatives in the negotiations greatly objected to the United States proposals regarding copyright protection, since the major component of these proposals involved measures aimed at increasing the criminalization of copyright infringement. In these proposals, the US wanted to expand the definition copyright infringement so that violations that were noncommercial in nature would still be considered criminal. Prior to this, noncommercial infringements were not viewed in these nations as a criminal offense.
The distinction here is an important one, particularly for those nations that object to the idea of criminalizing all instances of copyright infringement. Many organizations in Canada are petitioning its recently elected Prime Minister to resist these changes to copyright enforcement law, since they are in opposition to Canada's recent changes to copyright laws and policies with regard to noncommercial use of copyrighted material.
In Canada, new laws attempted to deal with the issue of noncommercial use of copyrighted materials with a simple, commonsense approach. For example, Canada instituted what it called a "mash up exception" that permitted individuals to create a new work based on copyrighted material, as long as the new work was not then sold. Certainly, Canadian law did not support the concept of prosecuting someone for just sharing a file. Extending copyright violation punishments in the way that the United States wanted to (to cover noncommercial uses of copyrighted materials) could have unintended and even ridiculous consequences. With the definition that the United States supported, it could technically be illegal to share an Internet meme on Facebook. Is it justifiable to prosecute individuals for the "criminal offense" of just sharing a file for noncommercial purposes.
The Contradictory U.S. Position
It is interesting to note that the U.S. is somewhat contradictory with regard to its position on copyright enforcement in the TPP. While the United States has been leading the charge to place very strong restrictions on copyright infringement in the TPP, the U.S. itself within its own borders has a concept known as "fair use" that is far more lenient than the rules it wants to put in place on the international stage (Sirabella, 2011, 775).
With fair use, US copyright law still protects the original creator of the work, generally providing him or her with exclusive rights to its reproduction, distribution and sale. For this reason, other parties (be they individuals or organizations) must obtain written permission from the copyright holder before using the work. However, the provisions for fair use to permit individuals to copy a copyrighted work as long as they fully adhere to a specific set of criteria. For instance, a "transformative" use of a work in which it is significantly altered can be considered a fair use of that work.
Parodies are also covered under fair use. For example, Weird Al Yankovic is well known for creating parodies of other artist's popular songs (Hajdu, 2014, p. 53). While he does ask for permission as a courtesy, he is not actually legally required to do so because fair use permits him to create and sell a parody of a song. However, it should be noted that the concept of fair use emerged from English common law, and the application of this principle in United States courts is often unpredictable and inconsistent.
One could argue that this inconsistency in the fair use doctrine is one of the reasons that the United States is not interested in extending into a broader global regime to manage copyright protections. However, it is also true that there is no money to be made in promoting the concept of fair use. Moreover, this approach could conceivably have a negative impact on the profits made by major corporations (which is something the United States would be adamantly opposed to). However, this dichotomy between the US position abroad and in the TPP and its position within its own borders creates the possibility of dysfunction within the legal system.
The Excessive TPP Copyright Term
Another problematic issue in regard to the TPP is the time period it employs when discussing the copyright question. A key aspect of the concept of copyright is that it is usually limited in nature. It will have a time limit after which any work will become available to the public as what is known as a "public domain" work. The time during which a work is protected by copyright is described as its "term." Once this term has expired, the work is no longer covered by copyright. Once the work is in the public domain, there are no legal restrictions whatsoever as to how the work can be used. Anyone can download it, copy it, distribute it or even sell it. Although anyone selling it cannot copyright it themselves.
However, in the United States the exact term during which a work can be copyrighted is confusing and (it could be argued) excessively lengthy. Presently, any work created 1923 exists in the public domain (Hirtle, 2012, p. 23). In addition to this, anything published prior to 1963 (but after 1923) that has not had its copyright renewed is now in the public domain. Furthermore, any works published before 1977 (but after 1923) without having a copyright notice are in the public domain. Finally, any works without copyright registrations that were published between 1978 and the end of February 1989 are in the public domain. Obviously, this is an extremely convoluted system that makes it difficult to determine what is in the public domain and what isn't. The following graphic illustrates the overlapping and complex nature of the copyright regime in the United States:
However, while older works are entangled in this web of arbitrary copyright terms, works that are created and published today have a slightly more straightforward copyright term, since they are copyrighted for the lifetime of the original creator (plus an additional 70 years). In other words, if a work is created now and copyrighted and the creator dies 30 years from today, that work will not be available to the public domain until 2116. Many view this as ridiculously excessive, in that it provides virtually no additional benefits to protect living artists and does nothing to promote creativity. Moreover, in the digital age this restriction is not only ridiculous, it is virtually unenforceable.
Such laws are designed to protect the wealthy corporations that have purchased and currently hold the copyrights to these works. This was not the original intent of the founding fathers when they established The Copyright Act of 1790 (Reese, 2014, p. 1492). At that time, copyright protection lasted for only 14 years and could be renewed for another 14 after that. After that, it was in the public domain. Compared to the century long (or more) copyright term that is possible today, a maximum 28 year copyright for a work seems incredibly short.
Why Copyright Expanded
The reason for the change is related to disturbing changes that took place in the political system in the United States over the ensuing centuries. The primary cause was the depressing increase in lobbying carried out by large businesses with the Congress and the executive branch. These days, corporate interests have an enormous influence on the nation's legislative decisions and agenda. As a consequence of the enormous influence that big business has with the Congress, it has chosen to extend copyright terms again and again in an effort to satisfy U.S. corporations. Thus, countless works that should have been in the public domain by now and available online for download are still under the control of wealthy corporations. These corporations continue to build wealth through such manipulative tactics, and are able to avoid the efforts and expenditures involved in creating new works. This is an important point, in that the current approach to copyrighted the United States actually discourages creativity, creating a situation in which companies and creative individuals are complacent and resting on their laurels. This means that businesses can simply rake in money while creating nothing of additional value.
An example of this can be seen in the Warner/Chappell corporation's copyright of the well-known song "Happy Birthday to You." While litigation regarding this copyright has led to it being declared invalid by the courts (Shelly, 2015, Web), the company was for decades able to take advantage of the popularity of this song to accumulate vast sums based on its use. Over the lifetime of the copyright, Warner/Chappell took in over $50 million by licensing the use of this song. By enforcing its copyright so strictly for so long, it could be argued that this corporation has defrauded the public and those who would have used it for their own content by withholding it from the public domain. This last point is an often overlooked aspect of excessively lengthy copyright terms. Many other businesses could create profitable content of their own were they able to access more of what is now copyrighted material. This in and of itself discourages creativity and economic growth. Unfortunately, this particular case is the norm rather than the exception.
In conclusion, it seems obvious that United States copyright law as it is currently conceived is detrimental to society as a whole and to creativity in particular. Moreover, the United States insistence that these kinds of strict copyright laws and enforcement speed introduced on a global scale via the TPP agreement is only making matters worse. Obviously, copyright in and of itself is a valid concept. Creators and artist certainly have the right to the protection of their work for a certain period. The question is the extent of copyright protection and the excessively long terms involved. Current copyright law bears little resemblance to its original formulation as the founding fathers envisioned it. The expansions of copyright law in the United States and elsewhere are now serving to hinder innovation and creativity.
References
Greider, W. (2015). This year’s “free trade” scam. Nation, 300(4), 22-25.
Hajdu, D. (2014). The Parody Racket. New Republic, 245(17), 52-55.
Hirtle, P. B. (2012). When Is 1923 Going to Arrive and Other Complications of the U.S. Public Domain. (Cover story). Searcher, 20(7), 22-28.
Rayman, N. (2015). Tom Petty has no hard feelings about Sam Smith song. Time.Com, N.PAG.
Reese, R. A. (2014). Copyrightable subject matter in the "next great copyright act". Berkeley Technology Law Journal, 29(3), 1489-1533.
Shelley, S. (2015, Dec 21). 'Happy birthday' song has been liberated, but now pop stars want payments. Redlands Daily Facts. Retrieved from http://search.proquest.com/docview/1752075008?accountid=2163
Sirabella, N. D. (2011). Separating the sheep from the goats: celebrity satire as fair use. Cardozo Law Review, 33(2), 773-805.
