Even as they complain about students downloading music and movies from the Internet, record companies and film studios are pirating your copyrights—and Uncle Sam is helping them get away with it! Here’s how:
* Extension of copyright terms.
The US. Constitution says copyrights must expire after a limited time (Article 1, Section 8), whereupon the work becomes public domain. Then you, the public, are free to copy or download Moby Dick, write new Sherlock Holmes stories, or perform Shakespeare or Mozart. Public domain is your copyright.
However, copyright’s “limited time” has been repeatedly extended, often due to big media lobbying. The 1790 Copyright Act set copyright protection at 14 years, renewable for another 14. By 1909 copyrights lasted 28 years, renewable for another 28. In 1976 copyright was set for “the life of the author plus 50 years” or 75 years for corporate owners. In 1998 copyright was extended to “life of the author plus 70 years” or 95 years for corporate owners.
Jack Valenti claimed the recent extension was necessary to bring U.S. law into conformity with the longer terms of the international Berne Convention. However, many Berne signatories also recognize Moral Rights, a doctrine that forbids buyers (such as record companies and studios) from altering an artist’s work. Valenti always opposed U.S. adoption of Moral Rights, which might prevent studios and networks from changing directors’ films and possibly even writers’ scripts.
Curious, it being vital for the U.S. to adopt Berne’s longer copyright terms but not its Moral Rights.
Artists should profit from their creations—but not 70 years into the grave. “Life plus 25″ (60 years for corporate owners) is more reasonable. Anything longer doesn’t benefit creators; it actually prevents their reworking old classics still under copyright. Excessively long copyright terms only benefit authors’ distant heirs and big media companies owning vast libraries. And long copyright terms pirate your public domain rights.
* Perversion of trademark law.
Traditionally, trademarks identified the maker of a product. If there was no product, the trademark was void. But increasingly, trademarks are the product, providing a potential loophole around copyright’s limitations.
Copyrights and patents expire, but trademarks can last forever. Thus, studios have trademarked Mickey Mouse, James Bond, Star Trek, and other characters and titles, preparing for when Steamboat Willie and Casino Royale enter public domain. They may lose those films and books and TV shows, but they’ll be damned if they lose the characters. Had Bram Stoker tried it, it’s possible that today anyone might publish Dracula, but only the Stoker estate could create new novels, comics, or films featuring Dracula.
It remains to be seen if trademark law will subvert the Constitution’s requirement for limited copyright terms. If so, big media will have pirated your public domain rights.
* Erosion of fair use.
The fair use doctrine, rooted in the First Amendment, lets you, the public, copy excerpts from protected works for purposes of news, education, research, criticism, and commentary. It also permits parodies. It’s a complex doctrine because the law only gives guidelines; you don’t know if it’s fair use until you’re in court. Which means fair use is often determined by who can afford a lawsuit.
In 1940 a New York federal district court said it was fair use for authors to excerpt song lyrics in fiction (Broadway Music v. F-R Publishing). It’s a way for authors to comment on pop culture. But today it is industry practice to pay a license fee for even one line of poetry or lyric. “Copying poetry or lyrics is never fair use,” one editor told me. Rather than fight big publishers’ lawyers, authors instead surrendered their fair use rights.
Fair Use protects the taking excerpts for scholarship, news, or commentary. That includes film scholars and authors taking images from a movie or TV show in order to illustrate their comments (as opposed to taking still photographs, which would not be an excerpt). However, fear of studio lawsuits mean that “unofficial” books about TV shows, such as The Unofficial X-Files Companion and X-Files Confidential: The Unauthorized X-Philes Compendium are bereft of images from the shows; images are reserved for “official” studio sanctioned books such as The Truth is Out There (The Official Guide to The X-Files, Vol. 1). Studios claim that such books are not scholarship or commentary (however much scholarship and commentary they may contain), but “merchandising,” and hence beyond the reach of Fair Use. Again, rather than fight big studio lawyers, authors have surrendered their Fair Use rights
Erosion of fair use is erosion of free speech. When Alice Randell wrote The Wind Done Gone, she was sued by the Margaret Mitchell estate. Had Randell been unable to afford a legal defense, her parody of Gone With the Wind told from the slaves’ perspective would have been suppressed.
The Electronic Frontier Foundation (www.eff.org) documents various ways in which fair use is threatened by big media. And curtailing fair use pirates your rights.
Pirating movies and music is wrong (though not as harmful to many artists as industry accounting practices are). Apart from brief excerpts used for news, criticism, commentary, and so on, copyrighted works should not be taken without permission while the artist is alive and for some reasonable period thereafter. But it’s hard to sympathize with big media companies who’ve suffered piracy while they and their lobbyists and lawyers are pirating your rights.