Wednesday, August 8, 2007

Copyright Law and The Flow of Information

Hi, welcome back to Trebor's Bite-Sized Bits! As our regular readers know, this little blog/newsletter is intended to offer some basic background on copyright law, trademark law and other related areas of interest. It is not intended to be legal advice in any way, shape or form. If you have copyright or trademark issues, always consult an attorney experienced in those areas.

There's a lot of nonsense and misinformation being bandied about attacking copyright law these days. I will confess that this installment of TBSB is a bit of a rant against what I regard as some of the worst of that, rather than my usual cool, detached and admirably (ahem) objective approach.

Just to get it out of the way, let me make it clear that there are certain things that I am NOT talking about. I am aware that the denizens of the mainstream media have sometimes used copyright law to harass and bully smaller fry. I am also aware of litigious smaller fry that bring frivolous or near-frivolous suits in copyright in order to extract settlements from larger companies. Like any law, copyright law can be misused. This misuse does not go to the merits and function of copyright law itself.

I also know that there are some fairly recent changes in core copyright law itself that are regarded as problematic by some. I've spoken to some parties who have expressed real and honest concern that Congress, with the aid of the Supreme Court, has, arguably, stretched beyond reason the duration of copyright protection. For reasons that may be the subject of a future TBSB, it is important that copyrighted material pass into the public domain in some sort of reasonably timely fashion. In fact, the passing of copyrighted material into the public domain is central to the constitutional purpose of copyright protection. As I say, this is worth an entire discussion in itself at some future date.

I am also keenly aware that issues currently exist as to certain copyright royalty matters. By way of example, many of those who create, distribute and/or sell truly independent music feel passionately that royalties for the use of copyrighted independent music in independent media cannot be set so high that it allows the major music industry to control the public's access to the rich diversity of music available to it from both mainstream AND independent sources.

I would be the last one to make light of any of the legitimate concerns outlined above. But these concerns have nothing to do with nonsense and misinformation I spoke about earlier. My pet peeve in this area is the assertion or suggestion that there is something inherently and wrongfully restrictive about copyright law because "information wants to be free".

In fact, it is a primary concern of copyright law NOT to restrict the flow of information. As faithful readers of TBSB know, a central tenet of copyright law is that copyright does NOT protect ideas. Everyone is free to express an idea no matter how many others have expressed the same idea. Only the particular expression of an idea is protected. TBSB readers also know that copyright law does not protect facts. Generally, anyone is free to set forth facts, even if someone else first expressed these facts. Again, to the extent that facts are protected at all, it is only the particular and original expression of facts that are protected.

Copyright law even goes a step further. In order to make sure that copyright law does not impede the flow of information, a fair use doctrine has been constructed first by the courts and later implemented by the legislature. As TBSB readers will remember from a prior blog/newsletter, fair use allows copyrighted materials to be employed in a limited fashion for such purposes, by way of example, as comment, criticism and parody. Fair use also allow uses where fresh creations use prior creations in a manner that is "transformative". A transformative work is a new work which is different from the original work and is used in a different manner and for a different purpose than the original work. ("Transformative" use as I said in the prior blog/newsletter is a still evolving area of law).

As a bit of an aside, I think fair use is a remarkably useful and flexible doctrine that can adjust to a changing world and which will help keep copyright law vital and alive through the foreseeable future (I am not, obviously, one of those who think that copyright law, in its essence, is "dead" or even seriously broken).

But back to nonsense and misinformation. Given the purposes of copyright law and its commitment to NOT restricting society's flow of information, I find it particularly offensive when I see, as I sometimes do, some individual using the "information wants to be free" argument or some variation thereof to excuse that individual's freeloading on the creative expression of others. To use a very technical legal term, that stinks.

Putting aside dishonest gasbags for a moment, there are those thinkers, I am sure, who do not infringe the copyrights of others but still honestly advance this theory. I can only say that in my mind, such a theory is a deeply flawed one that misunderstands, or shows extensive ignorance of, basic copyright law.

What do you think? I'm interested in your opinion on this.

Well enough of my rant. Thank you, dear readers, for your kind indulgence. Let me just say this in closing: I know most of you are creators in one field or the other. The drafters of the constitution thought the work of creators was important enough to society that the protection of it for a limited time was considered to be of constitutional magnitude. I think this is an essential truth that remains unchanged. Copyright law is your friend. Use it wisely and well. See you next time.