It's amusing to see defenders of current copyright law often making final declarations about how copyright is a "right" for artists, and thus protecting those rights absolutely makes sense. What they never seem to talk about is how, at the same time, copyright quite frequently is removing rights from the public. Julian Sanchez
points us to a fascinating new paper from law professor John Tehranian, which tries to bring user rights back into the discussion of copyright
. Here's the abstract:
This Article challenges copyright's prevailing narrative on personhood, which has typically focused on the identity interests that authors enjoy in their creative output. Instead, the analysis explores the personhood interests that consumers possess in copyrighted works. Drawing on a wide range of examples -- from flag burning as copyright infringement, the Kookaburra controversy and the crowd-sourced origins of the Serenity Prayer to the reported innumeracy of the enigmatic Piraha Amazonians, the apocryphal source of ancient Alexandria's Royal Library and the unusually fragile nature of digital media -- the Article advances a Hegelian refutation to intellectual property maximalism and a theory of copyright that recognizes the crucial link between identity politics and the legal regime governing the monopolization and control of cultural symbols and creative works.
The paper is a bit long, but it's a good read, as it effectively highlights how copyright really quite frequently takes away the rights that people would have in analogous situations. For those who insist that copyright is just like "real property" this particular paragraph (after a whole section describing how, in popular culture, we often define and identify ourselves by modifying the physical things we own) suggests one of the many ways in which "intellectual property" isn't like "real property" at all:
Intellectual property laws directly mediate the vindication of formative and expressive identity interests. The modern copyright and trademark regimes do not allow individuals to manipulate and utilize intellectual property in the same way that they can customize and contextualize their experience with physical property. Simply put, most customizations or contextualizations of intellectual property are considered potential violations of a copyright owner's exclusive rights under the Copyright Act or a trademark owner's rights under the Lanham Act. So, for example, by performing the equivalent of ripping holes in one's jeans (e.g., remixing a song or altering a brand name), a consumer of intellectual property runs afoul of a copyright holder's exclusive right to create derivative works or a trademark holder's right to prevent dilution. One can contextualize and communicate one's relationship with one's jeans by wearing them in public, but the equivalent act of publicly utilizing a copyrighted work would impinge on an author's exclusive right to control public displays and performances. In twenty-first century America, our relationship with intellectual property is an essential part of defining ourselves. And in an increasingly digital and virtual world, the semiotic value of intellectual property is just as significant as physical property, if not more so.
Our identity interests therefore can become intermingled with and wrapped up in a form of property to which we technically, and legally, possess no ownership rights.
The article also explains how the famed Library in Alexandria, which -- to this day -- is held up as an example of a wonderful scenario of aggregating and sharing the world's knowledge, was effectively built via "piracy." Everyone visiting Alexandria was required to deposit any reading materials they had with the Library, where it would be copied and stored.
It was this act of infringement -- the wholesale reproduction of a work without permission of the author or publisher, sanctioned (and even dictated) by law--that allowed the creation of one of the great Meccas of education in the ancient world. The private use of these unauthorized copies fostered learning and the dissemination of knowledge so critical to both personal development and artistic and scientific progress. Indeed, without the extensive collection of learning housed at the Library, the scholarship that emerged from the institution would not have been possible.
There's also a great section on the massive expansion of secondary liability, which does not appear to be supported by federal copyright law, and which is quite frequently used as a back door to remove or limit user rights. While there may not be all that much "new" here for regular readers, the whole paper is definitely a worthwhile read.