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Spring Symposium Wrap-Up: Part 1, Piracy and the Digitalization of Copyright

Published onMar 08, 2010
Spring Symposium Wrap-Up: Part 1, Piracy and the Digitalization of Copyright

The Wake Forest IPLJ Spring Symposium: Copyleft v. Copyright, went off without a hitch yesterday thanks to the exemplary work by Symposium Editor Emile Thompson and the IPLJ Board and Staff. The discussion brought to light many emerging issues in the copyright regime. The symposium consisted of two panels, expertly moderated, with the first covering the music industry, and the second examining the software aspects of copyright. For the sake of brevity, this post will cover the first panel, devoted to music and copyright.

The fundamentals of copyright law were neatly summarized by Ms. Laura Gasaway, Professor of Law at UNC at Chapel Hill. Professor Gasaway began her discussion with an anecdote that spoke to the leading theme of the symposium. Ptolemy, in building the great library at Alexandria, either copied or outright stole the vast majority of manuscripts that composed this ancient wonder of the world. Clearly, Ptolemy’s action flouted many of today’s accepted principles of copyright law, but it also demonstrates the fundamental tension that is ever-present in the debate over copyright protection: the desire to protect the rights of authors and the public interest in the free exchange of knowledge. With the lesson that the history of knowledge turned on piracy, she set the stage for what would be a slightly confrontational day examining the moral and legal implications of piracy and copyright. Professor Gasaway gave a tidy summation of copyright law to begin the day, explaining the basics of owners’ rights, licensing, fair use and other exceptions, and enforcement. She also outlined a list of 12 concerns, highlighting many of the major issues that plague the copyright field, which ultimately permeated the major themes of the debate throughout the day. They included in no particular order: copyrighting as a modern metric, P2P file sharing, thumbnail images, caching, the Googlebooks settlement, enforcement in other countries, private copying, emerging business models, user generated content and expectations, mashups, digital preservation, and orphan works.

Next, Professor Kimberliann Podlas from UNC at Greensboro Department of Media Studies gave a riveting talk focusing on the paradigm by which we perceive copying and piracy. Professor Podlas’ view was decidedly in favor of the individual user, and it focused on two of Professor Gasaway’s themes: changing business models and user expectations. Professor Podlas explained that the paradigm through which we view copyright is fundamentally flawed. The Recording Industry Association of America (RIAA) has largely succeeded in characterizing the piracy battle in an “us v. them” light. The issue is framed in such a way as to show us who the good guys are (the record labels and artists) and who the bad guys are (the pirates). The issue has been spun, by groups like the RIAA, to convince the public that pirating is tearing apart the fabric that holds the music industry together.

However, the evidence used by the RIAA to substantiate its claims demonstrates the misleading nature of their argument. The industry reports that CD sales are down 400%, and this is true. However what we are not told is that digital music sales are up. Really up. Record-breaking up. Digital music downloads totaled 1.1 billion last year, setting a new record and surpassing last 2009’s record of 1 billion. This is important because it shows not that pirates are decimating the music industry, but that the market shift to digital media and the movement away from the traditional CD format has ended the industry’s long standing golden ticket. In Professor Podlas’ words, “Napster empowered us (the consumer) and showed us that we didn’t have to buy an entire CD, and that we could get what we actually wanted (single songs). This ushered in a new consumptive trend… with the digital environment cannibalizing CD sales.”

Next on the slate was interim Dean for the University of North Carolina School of the Arts, Dr. Michael Rothkopf. Soft spoken and unassuming, Dr. Rothkopf self-admittedly did not approach copyright from a legal standpoint, but from that of the artist at ground zero. Dr. Rothkopf began his lecture by explaining that the copyright issue as it relates to artists themselves, truly only affects a small sliver of working artists. Though artists at UNCSA produce copyrightable material every day, the vast majority will not be copyrighted and will never even be considered for copyright. In analyzing these concepts, Dr. Rothkopf’s perspective confronted professor Gasaway’s business model and “copyright as a modern metric” issues.

Dr. Rothkopf framed the issue in a markedly different fashion than the lawyerly types on the panel. He stated that his main concern is for the free exchange of ideas. The goal of copyright should never undermine that creative process and the further development of creative works. Dr. Rothkopf gave a striking example of the effect copyright law can and does have on the artist: “A Pulitzer prize winning artist inserted a piece of a prelude by Chopin into his art. When asked later about why the artist chose to insert that particular piece into his montage, he answered, ‘that was the only piece of music I could get permission to use.’” Thus, in a compelling fashion, this example shows how the copyright laws serve to inhibit creativity by limiting the media that artists may use to develop new creative works. When viewed from this perspective, the observer questions whether or not copyright law is the best way to serve these competing interests in the future.

At this point, the symposium seemed to have the artist and end user (little guy) represented in spades. However, never fear, a shift occurred, and the rights of business-owners and developers were discussed by Mr. Robert Monath of the Monath Law Firm. Mr. Monath began his lecture by stating simply that “traditional business models regarding copyright issues have collapsed.” He signaled that we are in a transitional time, mirroring Professor Podlas’ lecture on issue framing. Mr. Monath, rather than explaining one particular aspect of copyright, took a more practical approach, focusing on the problems with modern copyright protection and licensing, and what needs to be done to rehabilitate the system.

Initially, Mr. Monath explained that these are not purely academic questions. Both finding ways to protect creative works and new legal trends are equally important to businesses and creators on the ground. Mr. Monath lamented that licensing a copyrighted work in America, and internationally, can be a nightmare. For those who wish to legally use a copyrighted work, they must regressively follow the chain of title as it relates to each right held within the copyright. This is more complicated than it seems, as an artist may license one right, but not others.

Mr. Monath’s most illuminating example was of a person who wished to use a song as background music to a home video of their pet on YouTube, which is something people actually do. Even if this person were to attempt to license the song, they would have to find the original owner, who would likely not have the exclusive copyright, then go to the original label, and if they didn’t have it, to the next owner, and so on down the line. Assuming that the person could eventually find the exclusive copyright holder, and gain a license for use, they would have to gain a license for not only the use of the song in and of itself, but also a separate “synchronization” license to be able to synchronize it with the video. In a perfect world the licensor who possessed the performance right would also have the synchronization right to license and if not, then wash, rinse, and repeat. These problems, according to Mr. Monath, are exacerbated by the absolute labyrinthine nature of copyright laws among the states, and even worse, between countries. And if this weren’t enough, gaining a copyright is expensive and time consuming; there is currently an 18 month waiting period to obtain a copyright. This can be expedited of course, for the low price of $800.

With all of these problems presented, where do we go from here? This was the thrust of the symposium: Given that we are in a time of transition, with the classical business model in collapse, how do we approach these issues in the future to protect both the creators and the end users of copyrightable material? Many different approaches were considered, and some avenues toward reconciliation of these competing interests were explained as already working at ground zero.

All of the speakers agreed that copyright law should be synthesized and simplified. Mr. Monath proposed that either the Federal Circuit or the Supreme Court should step up and unify the various interpretations of copyright law applied by the circuits; this would create a simple, streamlined, consistent copyright law. This would directly address many of Professor Gasaway’s major issues. Simple resolution of existing laws would allow the end user to know what legal ground they stand on, and would allow copyright holders to understand what rights they have, and what enforcement they can expect. Thus issues of caching, P2P in America, user generated content, user expectations, and similar problems may all be pushed in the direction of resolution.

Mr. Monath also proposed a complete abolition of copyright registration. Although the United States had to “reject” the process of registration for purposes of joining the Bern convention, constructively, artists are still forced to register, because legal enforcement without registration is nearly impossible and damages are entirely precluded. Finally, reciprocal enforcement in other countries was determined to be necessary. If copyrights are to be given, they must be sufficiently enforced. If an infringer can simply move his server to a country with lax copyright laws, he may avoid any consequences from the infringement and defeat the purpose of copyright law in the first instance. This unified and monist enforcement mechanism would largely help with the problem of P2P file sharing, which is an international problem (for a crash course and current explanation of P2P and international legal enforcement, see this post.)

Though there are many issues remaining in copyright law, Copyleft v. Copyright proposed new ways to deals with these issues as they emerge. From simplification of existing law to international enforcement mechanisms, the symposium panel concluded that the system is flawed, but uniquely poised to recover and resolve the issues of the future. The lawmakers of today must recognize that we are in a transitional period, and capitalize on knowledge available to accommodate competing interests in this truly international market. The Wake Forest Intellectual Property Law Journal thanks all of the panelists who contributed their ideas and knowledge to the analysis of these issues.

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