Thoughts on IP Reforms and Best Practices for Creators

Opinion

Filmmaker Kirby Ferguson recently finished Everything is a Remix, a four-part video series illustrating the interconnectedness of our creations and how current laws and norms miss this essential truth. Some viewers protested that the series ended without offering much in the way of prescriptive ideas. Here, he takes up that challenge, offering his thoughts on intellectual property reforms and best practices with the interests of remixers and creators in mind.

I recently completed a four-part videos series called Everything is a Remix and some of the series’ fans were disappointed that it closed without giving specific directions on what we can all do. It’s a common final act in documentaries and expecting that kind of closure is understandable, but there’s a couple reasons I didn’t go there.

First and foremost is that I was trying to provide my viewers with history and context. I wanted to inform their positions and decisions, rather than hand them a ready-made set. Secondly, it just seemed like a really uncinematic way to close the series, almost like a premature credit roll. I find the topic ill-suited to an audio-visual treatment.

A much better way to discuss it is right here in good old-fashioned text. So consider this an addendum to Everything is a Remix, a brief overview of what we can do and what we should push for. Some of these are attainable, some probably aren’t, and they’re all offered with a dose of humility. This is pure opinion, a discussion piece, not a manifesto. It’s food for thought from someone who spent a year-and-a-half living in this topic, both as my subject and as my creative technique.

This was written fairly swiftly, so if there are any factual errors or poor arguments, I would appreciate your help in correcting or improving them.

Copyright Classic

The hard truth is that most creations are worthless immediately. Most books, films, albums, computer applications, or whatever else are met with not just indifference but disuse. They basically aren’t read, aren’t viewed, aren’t used. Of the lucky ones that find a modest audience, almost all of those fall into obscurity within a few decades. Only a slim minority of works have commercial value after that and current copyright legislation is clearly written for this tiny group. Copyleft activists sometimes refer to this segment as the “lottery winners.”

Prior to 1976 the American copyright term was 28 years with the option to renew for another 28. Two big changes happened after that. Firstly, the term was dramatically extended to lifetime plus 70 years. Secondly, the option to renew was removed, automatically granting all rights holders the maximum term. Neither of these changes had any benefit to anyone but the lottery winners.

Lifetime plus 70 years is a wildly excessive copyright duration for almost all creations. According to Laurence Lessig, 85 percent of copyright owners failed to renew their copyright after 28 years. That means for 85 percent of them, their creation had little or no commercial value by then – 28 years of protection was plenty.

If I could wave a magic wand, I would wind copyright back to its pre-1976 state: 28 years of protection, with the option for a 28-year renewal. This would put the majority of works into the public domain in 28 years. Those who renew would get 56 years of copyright protection, probably enough to last a lifetime. If this system was in effect now, a vast amount of 20th century material would be ours to use and share freely. Just imagine what Project Gutenberg, Archive.org, YouTube or Google Books would be in this world. They’d be resources unlike anything we’ve ever seen.

The sad reality is that a reduction in the length of copyright’s duration seems enormously unlikely. A more winnable battle will be defeating another extension come 2023, at which point there will undoubtedly be another lobbying effort by the ever-dwindling segment of lottery winners.

If You’re American, Use Your Fair Use

Fair use is a limitation on US copyright protection that allows works to be re-used for purposes like commentary, criticism, and education. Copyleft activists tend to denigrate fair use because it doesn’t prevent anyone from clobbering you with a massive lawsuit. This is unfortunately true. Even with a solid fair use defense, you can get dragged into court and even if you win the case, your legal defense might cost hundreds of thousands of dollars and the emotional toll will be massive.

So the boundaries of fair use need clarification, but the fact remains that fair use is employed reliably and without incident countless times every day. Watch a newscast, a documentary or The Daily Show and you’ll see fair use at work throughout. The high-profile lawsuits we hear about are the exceptions and they over-shadow just how effective and powerful fair use is. (And let’s not forget that should you employ fair use and find yourself in a lawsuit, there are now a variety of public interest organizations that can provide pro bono legal defense.)

The various codes of best practices that have emerged in recent years are a demonstration of how powerful fair use can be when adopted by a community. A superb and under-appreciated resource here is Patricia Aufderheide and Peter Jaszi’s Reclaiming Fair Use, which also happens to be an excellent short history of the copyleft movement.

For those of you outside US and thus without fair use, well, you have the benefit of living in a much less litigious culture.

De Minimis Definitions Needed

This is an example of how fair use needs stronger boundaries. In copyright law “de minimis” refers to uses that are too small to be considered infringing – they would be considered fair use. However, the bizarre Bridgeport Music, Inc. v. Dimension Films suit made it unclear if de minimis even exists anymore. In this losing case a two-second snippet of Funkadelic was unrecognizably used in “100 Miles and Runnin’” by NWA. (And the defendant wasn’t even NWA or their record company, but a film distributor that happened to use the song in a film.) If any case is a signpost for the era of IP dystopia, this is it. Every re-use of even the tiniest fragment of published work now seems vulnerable.

We need some distinct thresholds below which copyright protection doesn’t apply. Maybe it’s two seconds of recorded music. Maybe its five seconds of video footage. These are arbitrary, but whatever these standards are, they’ll make more sense than copyright protection covering subliminal-scale slices of media.

Abolish Software and Business Method Patents

I’m not going to go deep into patents because it’s a complicated realm that incorporates vastly different industries. Real patent reform would need to address this disparity. A patent for a drug that cost a billions dollars to bring to market should be treated differently from a patent for a novelty invention created in a couple weeks by one guy.

What can be stated simply is that patents for software and business methods (which are mostly software) have done nothing to incentivize innovation and plenty to de-incentivize it. We’ve seen a massive arms race of patent holdings in the smart computing realm, an untold number of small companies being exploited by trolls, and the unabashed weaponization of these instruments. It’s so abundantly clear that software patents do not “promote the progress of useful arts,” that the most sensible route isn’t reform but abolition.

About The Author

Kirby Ferguson is a freelance filmmaker, writer and speaker in New York City and the creator of Everything is a Remix. He is currently running a KickStarter campaign for a free and open political series called This is Not a Conspiracy Theory.

Everything is a Remix Part 4 from Kirby Ferguson on Vimeo.

The other three episodes of Everything Is a Remix can be found here.

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