Scott Walker

A year ago I wrote an email to someone about an idea about how to address some of the issues I saw in copyright without requiring a change to current legislation. A recent conversation reminded me of the idea, so I dug it up, brushed it off, and expanded on it. Here’s the result.

I see many issues with the current intellectual property legislation (copyright, patents, and trademarks), but I’m mostly interested in copyright. Specifically, the aspects of copyright that appear to be not just ineffective but actually working against the very principles behind the intent of the laws.

Copyright was put in place to encourage the creation of content such that society benefits as a whole and the creator benefits individually. By granting the creator a limited protection under which they can monetize their creation, the theory was people would be more incentivized to create content (and society would benefit from that sharing – initially in a protected manner and then in an unlimited manner when the content fell into public domain). More content = good.

Initially, content had to be submitted for copyright protection by filing paperwork with the United States Copyright Office (USCO). Changes in the law now make fixed creative works automatically copyrighted (though you will enjoy additional benefits if you take the extra step to file for a copyright).

The result is that new content is automatically copyrighted at its time of creation. That’s good, right?

Well, sort of.

Creators no longer have to deal with the USCO, so many works are not registered with or listed in the USCOs records. In fact, works registered prior to 1978 are not even listed in the online USCO database. Search requests for works created prior to 1978 require filling out an online request and waiting for the results in the mail or physically visiting the USCO records office.

Even the online searches only list the name of the copyright holder, not a phone number of address.

And since the copyright office is, by default (due to the current copyright legislature), cut out of the copyright process, there is no longer a central, all-encompassing index of copyrighted works. There is no single database one can turn to in order to easily identify a particular work, find its owner, and (ideally) contact that owner to inquire about the licensing of their work.

In short, the USCO database:

• is not exhaustive (where’s the one-stop shop for all copyright listings?)
• is not fully digitized and searchable online (I need information now | I don’t live near the USCO)
• is not guaranteed to be up-to-date (the original copyright holder was bought out/moved/died…now what?)
• does not provide contact information on copyright holders (how do I reach the copyright holder to request licensing rights?)

Not so good.

Why Copyright?

Remember the reason for copyright legislation to begin with? Rewarding the creator with temporary benefits, right? Ostensibly, those benefits include control over how their works are used as well as the exclusive commercial rights over the work for the duration of the copyright (for most current works, this equates to 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first).

Copyright is supposed to benefit the creator but ultimately, it’s supposed to benefit society.

Putting aside the question of whether the duration is too long (hint: I think it is), the main issue here is that only the small percentage of works that achieve great commercial success benefit from the current copyright system. This is why those lobbying the most to maintain if not extend copyright duration are those with the most to lose (hint: think Hollywood).

But what happens to the majority of other copyrighted works which are trapped under copyright protection but have not found commercial success? They mostly lie fallow and ignored, generating no income for the copyright holder. Further, their ability to benefit society remains largely unfulfilled, since it’s easier to not remix a work than jump through hoops to obtain the legal right to remix it.

Sure, fair use exists to address legitimate remixes of copyrighted material. Academic evaluation and artistic expressions that re-contextualize copyrighted works are often non-commercial in nature and provide value and benefit to society at large. Even commercial use of remixed works where the remix serves as commentary (e.g., “The Daily Show”) is covered under fair use. So what’s the problem?

Fair Use is Not a Sword (but it’s double-edged)

As an entertainment attorney, Peter Kaufman, once pointedly reminded me, fair use is a shield, not a sword. It’s a defense you can raise if you are sued for copyright infringement, but it’s not a legal right you can use to obtain legal permission in advance. You don’t sue first using fair use as your legal claim in order to remix or reuse a copyrighted work. You claim fair use if someone sues you for infringing on their copyrighted work.

And that’s the problem. The boundaries of fair use are fuzzy at best, and the only true test for coverage under fair use happens in the court. Of course, by then, it’s too late to know better.

So, it’s often easier to just pass on the remix of copyrighted material rather than take a chance on being sued.

The result is that the works of creators get dropped into a copyright hole for almost a century or more. There’s got to be a better way to make licensing these works easier.

Clearing a Better Licensing Path

How can we make it more likely that copyrighted works will be legally remixed without changing copyright law? How can we encourage the legal use of works that may be decades old without increasing the risk of copyright infringement?

Creative Commons is one solution for content going forward. It allows creatives to place a license on their works that explicitly grants additional rights to others without the need for contracts/agreements. I use CC for some of the creative work and support their efforts, but CC is by no means accepted by everyone in the creative community, and it is not always understood properly. Further, there are times when CC is not appropriate.

Mostly, though, CC’s value is with new content. It can’t address the issues of copyrighted works already out there unless you can reach the current copyright holder…in which case you probably don’t need CC.

Instead, I’d like to propose a clearinghouse for copyrights that also provides easy-to-use licensing models and supports revenue collection/disbursements.

I’m thinking of an opt-in organization that handles the content rights for creators and covers every conceivable form of content (video, images, audio, text, etc.). Sounds an awful lot like ASCAP, doesn’t it?

ASCAP has its faults, though I see them at the policy level, not the business model level. Why is it useful as a framework? Because it points to a better, more comprehensive model for handling copyright clearances than we currently have.

Say you want to shoot a movie and you want to include footage from another film, two recorded songs, and five different photographs. Chances are, you’ll need to interact with eight different attorneys, use eight different legal licensing agreements/contracts, and end up not using any of the works because the price is too high. And that’s after you tracked down the valid holders of the copyrights to each of these works.

Each licensing deal will be done on a one-off basis, with no transparency to the market. This creates inefficiencies and transactional friction, further increasing the costs of licensing (hint: think Wall Street before consumers could more directly execute trades and use online systems to do so).

If you had a single site you could visit that would give you all the information you needed to know about the cost to remix a copyrighted work, and you were quickly able to obtain that right, chances are you would remix more copyrighted works. Especially if the price was reasonable.

So here’s my proposal: instead of changing copyright law, we create a clearinghouse of copyright licensing by adding a third party to the licensing equation; a party that has the authority to issue licensing rights to easily searched works across a wide range of mediums as well as the capacity to accept payment on behalf of creators and which offered an a la carte approach to licensing prices.

Creators are incentivized to register their works with the clearinghouse and to keep their contact information up to date, since there’s a greater likelihood that their works will be found and licensed.

The clearinghouse approach addresses the issues with the USCO database and encourages the legal licensing of works for commercial use by dropping the transactional hurdles. It realistically would be aimed not at Hollywood but rather the smaller/indie creator who would benefit from being listed in such an index.

While it’s unlikely that this clearinghouse would result in a more complete listing of copyrighted works, it’s reasonable to guess that the works most likely to be licensed would find their way their. In a sense, the process of getting works into the clearinghouse would by default filter out the works least likely to be licensed.

I’ve seen a few examples of something similar to this (safecreative is one), but I haven’t found one that addresses all of the components in my proposal. Please let me know if you have!