Re: Author's Rights

Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Martha Luehrmann writes:
> >
> > We need some way to control and charge for minor uses of
> > materials or portions of materials, like picking up a quote off the
> > internet, playing a soundbite, running a piece of software, or
> > showing some or all of a picture.
>
> *************
>
> You make a persuasive argument [not reprinted here] that the cost of
> copying has come down dramatically since Gutenberg's time, and so we
> need copyright protection to compensate. But I'm not sure why you
> think we now need additional rights to "control and charge for minor
> uses of" copyrighted works. Sure, we could give authors those rights,
> in addition to the rights they already have under copyright law. But
> we have already expanded copyright law dramatically in the last 50
> years, both in scope and in duration. It seems to me that the right
> question is not "do we need copyright?" [I think we do] but "must the
> author control all possible uses of his or her creation?"

It's not so much that we need additional rights, at least if you take the Berne Convention view (that _authors_ have rights, and publishers/distributors merely rent them). It's more that we need to ensure that, out of the collision between the technology and the existing law, something emerges which makes it possible for people to sustain themselves as _independent_ authors (composers, designers, whatever).

Martha wrote the words above, and she owns them. Mark wrote the next bit, and owns that. I wrote this, and it's mine. I give permission (explicitly, for the sake of this argument) to anyone to use these words of mine for non-commercial purposes. But I'm damned if I'm going to see some member of the late-mediaeval Guild of Stationers, some Hearst or some Murdoch or Gates make money from them.

We already _do_, all three, have the right to charge for minor uses of this work.

Given the ease of copying in this medium, it seems that the answer is to have rights permissions attached to works. This goes hand-in-hand with the technology that people will be using anyway for authentication ("PGPsignature++"). Use the technology to make it very nearly as easy to check what permission you have (and pay "rent" where it's asked for and you reckon the sample you just saw justifies the cost), as it is to make copies.... and we're most of the way there.

The fly in the ointment, from my point of view, is the publishers. They're claiming that it's "impracticable" to pass on minor use payments. When a man in an Armani suit says "impracticable", I hear "not in my interest". Of course it's practicable: computer networks could almost have been invented for the purpose. But they're using the argument to pressure the people who actually create the product that pays for the suit, to assign all rights or find other work.

And, yes, there is an argument for the author _in_principle_ to "control all possible uses of his or her creation", and it's about authentication.

A news photograph taken by a French citizen is inherently more trustworthy than one taken by a US citizen or UK subject.

The French photographer has the absolute, inalienable right to sue for "derogatory treatment" of her work if it is manipulated and distorted. This is what is poorly translated into UK law, and just barely touched on in the US Act, as "the 'moral right' of integrity".

Independent US and UK photographers can, and do, under economic pressure, give up that right; and if they take a photo in the course of their employment _all_ rights in it may be held to belong to their employer.

When it comes to the crunch over the authenticity of a digitally stored, processed and distributed photograph -- as it will, soon -- this difference will be rather important. I've read some very entertaining philosophical treatises on what constitutes "reality" in a photograph, and I have a heap more to hand in case of insomnia. But to my mind it's important that a photographer can stand up in court and say "that is what was in front of my lens when I pressed the shutter"... and that photographers, everywhere, will be able to sue the pants off publishers and others who abuse their work. (Similar arguments apply to text, music and drama, but they take many more words to describe.)

What alternative approaches are there to the questions of authenticity in media which are increasingly easy to manipulate? I can think of:

1. "Creators" taking personal responsibility for their work, to go along with their rights, as proposed above, enforced by _civil_ suits (probably, juries should be compulsory in such cases);
2. No sanctions: a world of "virtual news" in which no-one has cause to believe anything (for a foretaste, go over to Usenet alt.news-media.paranoia.bark.bark.bark);
3. Criminal sanctions... which leads rapidly towards the legislature trying to define what is "truth" and judiciary to enforce that definition.

(1) has the disadvantage that it doesn't protect the citizen from unscrupulous individual creators, if no-one else involved has the legal standing and energy (and funds) to deal with them. The disadvantages of (2) and (3) I don't think I need to spell out.

Remember me, when you see a photo of Hillary embracing Saddam...

Mike Holderness
<mch[_at_]cix.compulink.co.uk> Received on Fri Apr 12 1996 - 09:58:13 GMT