Re: Is Fair Use Dead?

Leah Theriault <wheedle[_at_]uclink4.berkeley.edu> wrote:
>
> On 3/5/98, Mike Bradley <michael[_at_]vision-soft.com> wrote:
> >
> > It's not a coincidence that at the same time that users' rights
> > are being weakened, creators' rights are being weakened as well.
> > The mutual cause is the increase in publishers' rights through their
> > overwhelming concentration of wealth and power.
> >
> > This list often views changes in the copyright law as a conflict
> > between two parties: users and copyright owners. The view is
> > politically naive. There is a third party: the original creators of
> > the works, who are less and less the owners of the copyright and who
> > certainly do not share most of the goals or rewards of the publishers.
> >
> > For copyright reform to be effective, users and creators had
> > better be allied, because neither can stand up to the publishers
> > alone.
>
> I am also concerned with rights of creators! In fact, I am out to save
> the world: :-) I want users to have more freedom, creators to have a
> bigger piece of the pie, and publishers to have 'just enough' to play
> along. I agree with you that users' and creators' rights are more
> congruent than they would often appear. Especially since creators are
> users themselves, and the creative process benefits from a thriving
> public domain.
>
> The irony, of course, is that 'authors rights' language has been used
> most effectively by the _publishers_ over the years to increase their
> control over copyrights. This has been true since the Statute of Anne.
>
> I can't speak for others, of course, but I only omit the rights of
> creators from my three-way equation because it is hard to fight more
> than one monster at the same time, especially in this truncated medium.

While it is true that adding the creators to the equation renders the mathematics more complicated, omitting them just makes the result wrong.

User-access debates have their own peculiar libertarian rhetoric - a rhetoric that generally only works if you conveniently forget the creators. Those who argue that access to intellectual property should be free of cost and regulation by legal instruments such as copyright law like to characterise their adversaries as wealthy rightsholders. Publishers, producers and broadcasters (runs this argument) are exacting high profit-margins and thus creating undemocratic separations of populations into the information-rich and the information-poor.

This ignores the fact that the original creators of all the content are not the publishers or producers, but individual authors and artists. I happen to subscribe to another rhetorical old chestnut (which keeps recurring on this list), to the effect that, if content becomes cost-free, and copyright law is relegated to the dustbins of history, a powerful motivation and impulse for much creation would be removed. While it is true that altruistic and inspirational forces (as well as sheer egotism) may be behind many of the finest examples of creative output, a great deal (if not most) of what is produced in the literary, academic, business and entertainment sectors is the fruit of "journeyman creativity" - creative endeavour in service to the economic imperatives of paying the rent and other mundane necessities.

Apart from a few literary and artistic superstars, most creators are not wealthy and are rarely adequately compensated for the time and effort they put into their creations. This is true in literature as it is in academic writing, in fine art and graphic design. Even if someone else (such as an academic institution) is paying their rent, creators still care about authenticity/integrity, attribution and misattribution. These moral rights tend not to be well protected in the public domain - although I accept that this is not a reason to demand payment for everything. These issues should not be shirked by the user community.

Chris Zielinski, Secretary General ALCS
Marlborough Court, 14-18 Holborn, London EC1N 2LE, UK Tel: +44 (0)171 395 0600 Fax: +44 (0)171 395 0660 <chris.zielinski[_at_]alcs.co.uk> Received on Sat Mar 07 1998 - 18:25:54 GMT