Reading :: Free Culture

Originally posted: Wed, 01 Nov 2006 19:59:23

Free Culture: The Nature and Future of Creativity

by Lawrence Lessig

In 2002, Lawrence Lessig argued before the US Supreme Court that the Sonny Bono Copyright Term Extension Act should be declared unconstitutional. He lost the legal argument. This book, essentially, is his response: a policy argument that attempts to rectify his loss of the legal argument.

So what's the argument? Lessig describes the problem: Copyright, which originated as a strongly limited right to one's own work over a relatively short period, has been progressively extended in a number of ways. Most obviously, Congress has enacted a series of rolling extensions that, as long as they continue, will result in de facto permanent copyright. But copyright has also been extended in other dimensions, due to changes in distribution systems (video, radio, electronic). Additional restrictions have been built into software, and the act of circumventing copyright protection itself has been made illegal. Lessig argues that these changes, in total, mean that an increasing amount of our cultural heritage is being taken off the table and commoditized -- and worse, works that cannot be commoditized, that will not pay for themselves (e.g., less popular Laurel and Hardy films), are decaying for lack of funds to covert them to more permanent media. One big problem is that there's no central registry for copyright holders, so it's sometimes impossible to determine who holds the copyright and thus impossible to get permission to use their work.

Lessig responds with a suggestion for a compromise: make copyright a fixed 50-year term, then extend it via a nominal fee (say, $1 a year) that involves registering the copyright holder.

I have a lot of sympathy for this argument. But as a policy issue, several things occur to me. I'm no legal scholar or policy expert, but I suspect copyright has not evolved enough to keep up with various sorts of changes in how works are designed and produced, and I further suspect that Lessig's proposal only exacerbates these problems:

• When copyright was conceived, works were primarily authored by individuals. Now they're authored by teams, and important parts of what make them unique or salable are not added by the copyright holder at all. For instance, acts like Def Leppard and the Cars would not have been nearly as attractive without producer Mutt Lange, who strongly contributed to their sound. Lange is not the copyright holder, but he strongly impacted their work.
• Similarly, individual works often enact larger properties. The obvious example is Mickey Mouse: a new Mickey Mouse property is in a sense just a brick in a larger edifice that stretches back to Steamboat Willie. (Jason Craft describes these edifices as "fiction networks," using comic books and the Star Wars universe as examples.) An enormous amount of work goes into building and maintaining these edifices, with later works impacting the interpretation of earlier ones. That work is distributed across time, space, and disciplines, and frequently functions as an organic whole. So: if Mickey Mouse is still being developed, can he go out of copyright? If you make your own Mickey Mouse T-shirt, are we talking about the character (who is under continual development), or just screen grabs from out-of-copyright works?
• Works enjoy much broader distribution across a much larger set of media.
• Two related operating assumptions of the book are that our cultural heritage is precious and that reuse is an essential creative act. I wonder about both of these. We have, to put it bluntly, created an enormous amount of garbage in the last century, and I'm not sure that it's a bad thing that those Laurel and Hardy films are moldering in their cans. Nor am I convinced that reuse is so essential to further creativity.
• Finally, and perhaps most importantly, Lessig's solution to the copyright problem is not especially workable. Copyright is a bureaucratic problem, and creating another layer of bureaucracy in the form of a massive centralized database is not an especially elegant solution.

Anyway, the book is fascinating and, as you can tell, thought-provoking.

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