Title: Historical Understandings of Derivative Works and Modern Copyright Policy
Abstract: Fair Use Doctrine allows unauthorized uses of copyrighted works by scholars, reporters and parodists but does little to protect creative critics or non-commercial transformative works. Fair Use Doctrine is valuable because it provides cover for criticism, derivation, and creativity using copyrighted works without requiring permission. It also acknowledges the derivative nature of much creation. To better protect derivative works and their authors, fair use must be modified in two ways. First, creative criticisms of non-technical works should receive stronger protection. Second, non-commercial derivative works should be presumptively fair use. These modifications will be a start towards protecting a large and vibrant community producing both creatively critical and entertaining derivative works borrowing from the settings, characters, and concerns of earlier authors. current Fair Use policy in the United States chills the speech of hundreds of thousands of writers, does not do enough to help established authors, and does not effectively ―promote the progress of Science and useful Arts‖. 1 following historical analysis and policy argument is supported by readings from three works of historical derivative literature, Homer‘s Iliad, Publius Vergil‘s Aeneid, and Shakespeare‘s Troilus and Cressida. Why Modify Fair Use? Copyright reform is an enduring public policy challenge, with powerful corporate and political forces aligned to resist any change to the status quo advocated for by a diverse array of artists, writers, activists scholars, and lawyers. Record labels, the movie industry, established authors and their publishing houses, all believe they benefit from longer, stronger copyright. Electronic Frontier Foundation, Creative Commons, and less established creators advocating reform have much to gain from a more flexible borrowing culture and a richer public domain. 1 The Constitution of the United States, Article 1, Section 8, Clause 8. 2011 Honors Thesis Dickinson Goodman 5 Lawrence Lessig, a giant in the intellectual property policy reform movement, often complains that ―Fair Use is the right to hire a lawyer.‖ 2 Though designed to encourage criticism and creativity by making unauthorized uses of copyrighted material legal in some circumstances, the Fair Use Doctrine's very flexibility leaves many eligible works dangerously vulnerable. This is chilling for the non-commercial creators who have made up the vast majority of copyright holders since the Copyright Act of 1976 scrapped the requirement to register a copyright. Today, every five-year-old's scribble has protection under copyright law, sometimes for a century or more. 3 From mommy bloggers to garage guitarists to casual photographers, creating a derivative work without seeking formal permission from the original producer is not just following in the footsteps of Homer, Vergil and Shakespeare. It is also an invitation for a ruinously expensive copyright infringement lawsuit. While derivative creators can, of course, attempt to purchase the license of their source material, this process is both opaque and astronomically expensive in terms of money, time, and loss of creative control. A book published in the first decade of the new millennium bears copyright protection for five times longer than it would have three centuries ago, when the first copyright law, the Statute of Anne, was made passed in England. 4 Since 1998, any fixed expression in the United States has copyright protection for seventy years after the death of the author, ninety-five if the work was created for hire, or one-hundred and twenty years, which ever expires first. 5 Copyright covers also more expression today than any other time in history, hindering the ability to creative critics to use fiction to make political arguments. Current Fair Use policy chills 2 Lohmann, Fred von.―This Land Isn't Your Land.‖ (Last visited 10 April 2011). https://www.eff.org/deeplinks/2004/07/land-isnt-your-land 3 U.S. Copyright Office. ―Copyright Law of the United States.‖ (Last visited 10 April 2011). http://www.copyright.gov/title17/ 4 This is assuming the book's copyright was not renewed after the first 14 years of protection. However, even with renewal, 70 years is slightly more than twice the 28 years of protection it could have received in 18 th century England. Boyle, James. Public Domain: Enclosing the Commons of the Mind. Caravan: NY, 2008. http://www.thepublicdomain.org/download/ Pp 29-30. 5 U.S. Copyright Office. ―Copyright Law of the United States.‖ (Last visited 10 April 2011). http://www.copyright.gov/title17/ 2011 Honors Thesis Dickinson Goodman 6 the speech of bestselling authors 6 and dabbling fans alike. 7 modifications to Fair Use described in this thesis are a small way to shield authors, established or emerging, from chilling copyright infringement lawsuits. Modern authors not only have longer copyright protection; legal enforcement of their copyright is stronger than ever before. Federal Bureau of Investigation's anti-piracy seal is a memorable and pervasive example of this: appropriate length of copyright has been has been covered in exhaustive depth by innumerable academics and policy experts and is outside of the scope of this paper. Here I will address the narrow issue the Fair Use Doctrine's expansion to include creative criticisms of creative works and its presumptive protection of non-commercial works. expansion of protection for non-commercial creators would affect the rights of every American who will ever write a single word without being paid for it. 6 Gaiman, Neil. ―Fair Use and other things.‖ (Last visit 10 April 2011). http://journal.neilgaiman.com/2008/04/fair-use-and-other-things.html 7 ―Jacob and Bella—Love the Way You Lie‖ (Last visit 10 April 2011). http://www.youtube.com/watch?v=l5PpA7Y1rC0f as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.‖—Thomas Jefferson 2700 Years of Intellectual Property Policy in 2700 words
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
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