After four decades, our nation’s copyright law must be tweaked
Copyright laws have been fundamental to American culture since the founding of our nation — they are one of the specific powers granted to Congress under the Constitution. We have operated for decades under the 1976 revision of the copyright law. Simply put, the revision has been one of the best upgrades in a long time and has been critical in the success of the arts in our nation. But today, copyright law faces new challenges, particularly with the explosion of social media.
Forty years ago, I was barely out of law school when a magazine client wanted advice about the new copyright law. Never having studied copyrights, I read and read and read, learning about copyright. What I found was a congressional bipartisan effort to create an intellectual infrastructure that worked for artists and authors, publishers and moviemakers, and creators in media formats that had not been invented yet.
The elegance of the revised copyright law is what set it apart. The previous law was not friendly to artists nor authors. The new law anticipated technological change by simply providing that copyright attaches to “original works of authorship, fixed in any tangible medium of expression.” No need to worry about whether a digital image is a “photograph” or a YouTube video is a “movie.” It is all eligible for copyright. This is a good thing.
The 1976 law created an intangible property right that could be registered like a land title and carved up anyway the owner liked. And for artists and authors with little bargaining power, it offered the promise that, no matter what the agreement, at a future date they or their heirs had the right to terminate any copyright transfers and have the rights revert to them. It also made the copyrights inheritable, granting heirs of the authors and artists an opportunity to enjoy the benefits of their copyrights.
But now things have changed. The law faces new hurdles with social media and the sharing by regular folks who have not considered the repercussions of copying a photograph or news article and pasting it on their blog or Facebook page. Newspaper and magazine publishers, along with major news organizations, do worry about such things because, among other things, they are a bigger litigation target. Think about it: Someday a successful (and wellheeled) blogger with a cavalier attitude about sharing is going to get hit with a big lawsuit and discover that sharing a copy of someone else’s copyrighted piece online without permission can have serious consequences.
Perhaps one of the biggest problems with the current copyright law is the absence of clarity on what constitutes “fair use.” Fair use is intended to recognize that certain types of uses of copyright material are “fair” and not the basis for an infringement claim. But beyond four general, nonspecific criteria in the law, there are few clear standards. This gray area can hamper artists who sample the works of others or rely on parody for their creative work. Often the answer cannot be determined until the last court rules. Clearer standards are needed — either in the law or as a result of industry recognition of basic best practices — and would go far to improve the copyright regime.
Is the copyright law perfect? No, but it is a good bedrock upon which the law can work to address the new challenges that arise from changes in technology and advances in creative works. And in these troubled political times, we should draw some comfort in realizing that this bipartisan, nutsand-bolts structure was formed in the midst of another politically charged troubled time in 1974 when the Watergate crisis was at its peak. If a bipartisan effort like this could be created for the advancement of the arts back then, perhaps we can still address the basic issues of our physical and intellectual infrastructure without political bias. That would be refreshing.
Remember the Republican “voodoo” economics of the Reagan administration? Huge tax cuts for the wealthy and corporations were supposed to stimulate the economy and create jobs and wage increases for the middle and working classes. Actually, it created massive income shortfalls, resulting in a larger national debt.
Corporations in the real world actually do four basic things, in this order, despite what the economists tell us: Make profits. Raise stock values by buying back stock (this is where the executives earn their bonuses). Pay dividends. Create jobs.
This week I received a letter from Social Security. All seniors should be getting their letters this month informing them of the large 2 percent increase due to the increase in the cost of living this past year. They did not bother to inform us that along with the 2 percent increase, we get a 22 percent increase in our Medicare premium, which amounted to a $24 increase in Medicare and $11 increase in my Social Security deposit.
I called Social Security to ask about this discrepancy. I was informed by the bureaucrat that answered the phone “because they can; it is in the law.” When I attempted to complain, she hung up on me. The Medicare premium comes off the top before any funds are deposited into our accounts.