Copyright: Money and Control

Although I have no intention of ever making money from T&B and have had the same thought since the day I started blogging, it’s was only a couple of months ago that I licensed the blog under a Creative Commons license and thus freed its contents from copyright. Why did I wait so long? What was I deliberating? What was the problem?

The problem was control.

While I’m speaking from personal experience, I would guess that the impulse to maintain control over one’s work is very natural for content creators. In my case, I wanted to see every instance in which my work is used. I want, should the occasion ever arise, to be able to say, “o no. You’ve misinterpreted my work, and by extension, me. That’s not what my text conveys; that’s not what I’m about.”

Copyright affords me the opportunity to make statement since Fair Use exemptions aside, copyright protection means that everybody who wants to use my content had to ask my permission. In short, I wanted copyright protection not because I hope to monetize T&B, but because I felt that with the rights that automatically attach to my work (until I chose to waive them), I was in a better position to improve the content — by adding clarification or whatnot — in the instances when it was reused. (This was, of course, self indulgence of the highest degree since the people who want to use my writing is of mass absolute zero.)

Eventually, however, I came around to the view that if people wanted to use my content with my discovering the fact, then there was little I could and would want to do about that anyway. Why then insist on these hoops — the permission requests — that people must jump through to use my content when I a) would’ve been most flattered if they did, and b) assuredly granted the requests anyway?

That long story about me goes to illustrate a general point about copyright desirability. (At least, I hope it that does; otherwise, I would’ve been just drolly blabbering about myself.) Authors, artists, and other creative types may let the default copyright protection apply to their work instead of making their content available more generously because they’re afraid of the loss of control that such freeing of their content entails. However, if they could be informed that waiving some rights afforded by the copyright statute does not mean that all control or credit is lost, I think more would subscribe to the permission-by-default, without a fee but with attribution and/or respect for the integrity of the work, paradigm. For example, if when you were signing up for your WordPress account, you had been asked how you want to distribute your work, probably a number of you would’ve chosen a Creative Commons license over US Code Title 17.

Of course, you weren’t asked, and when you’re not asked & don’t explicitly make a choice, copyright is — problematically –assumed. Indeed, copyright is the default, and it is automatic. As soon as you fix your ideas in a tangible medium, copyright automatically binds the uses of your work without your taking any additional step, of registration, of attaching a © symbol, or anything else. Copyright will also govern for your entire lifetime, plus an additional 70 years after your death. Long after you have become separated from your work, nobody can use it unless they manage to track you (or your heirs) down and ask for permission.

This last is of course the problem of orphan works. These are works whose copyright holders cannot be located, and as a result, nobody can make any use of them. This is even if the person who wants to the use the orphan work is willing to pay for the privilege — there is simply no one entitled to collect the money and extend permission. The problem is enormous in scope. The Google Book Settlement revolved around and foundered on these shoals; HathiTrust and a number of universities are being sued by the Authors’ Guild because of the former’s proposed actions to make orphan works electronically available to university affiliates; the uncertainty surrounding the subject cannot be dispelled unless by new (and sure to be acrimonious) legislation.

The numerous issues surrounding orphan works have led some copyright lawyers (e.g. Paul Goldstein, Jason Mazzone, Lawrence Lessig) to advocate for the re-installation of formal requirements to either apply for copyright or renew copyright protection after a limited number of years. The argument is that such formalities will require the copyright holders to identify themselves on a more regular basis and thus cut down on the number of orphan works. Those who do not comply with the formalities will have effectively declined copyright protection on the “utilitarian premise that compliance with formalities is a good litmus test of an author’s intention to claim protection for his work”.

Of course any such changes to copyright law will have to survive substantial challenges from current beneficiaries of the system and well as international agreements like the Berne Convention. Insofar as this is possible, I envision a system working like this. At the time of a work’s publication, authors are given a explicit choice as to how they want the law to treat their creations. Some authors will choose the full protection of our copyright laws, and others will “retain copyright [and the credit for their work they deserve] while allowing others to copy, distribute, and make some uses of their work — at least non-commercially“. Inevitably, however, there will be those who won’t have made a choice one way or the other. For these creators, the default will be that their works enjoy full copyright protection but only for a short period of time (when their output is most likely to commercially viable). After this period of time expires, unless the authors  explicitly make their wishes know, their works will pass into, if not the public domain, then the domain of a restrictive license, like this one, that protects the integrity of the content and assures credit to the original authors is given but grants permission for reuse as the default.

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