Open Source Blogging

The owner of the blog zenhabits has an interesting post on blogging and copyright. He offers a creator's perpesctive on some of the beneifts to rejecting traditional copyright protections and opting for a creative commons style licensing.

Struggle between free expression and copyright

The first part of 2008 will see an intriguing new publication by UCLA law prof Neil Netanel. Netanel is interested in concrete first amendment issues which the present copyright regime presents to the creators of culture. The text is entitled Copyright's Paradox: Property in Expression/Freedom of Expression (Oxford University Press, May 2008). The Krisostomus website contained this description:

• The United States Supreme Court famously labeled copyright "the engine of free expression" because it provides a vital economic incentive for much of the literature, commentary, music, art, and film that makes up our public discourse. Yet today's greatly expanded copyright law often does the opposite--it can be used to quash news reporting, political commentary, church dissent, historical scholarship, cultural critique, and artistic expression. In Copyright's Paradox, Neil Weinstock Netanel explores the tensions between copyright law and free speech concerns, revealing how copyright law can impose unacceptable burdens on speech. Netanel provides concrete illustrations of how copyright often prevents speakers from effectively conveying their message, tracing this conflict across both traditional and digital media and considering current controversies such as the YouTube and MySpace copyright infringements, Hip-hop music and digital sampling, and the Google Book Search litigation.The author juxtaposes the dramatic expansion of copyright holders' proprietary control against the individual's newly found ability to digitally cut, paste, edit, remix, and distribute sound recordings, movies, TV programs, graphics, and texts the world over. He tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and he assesses how copyright does--and does not--burden speech. Taking First Amendment values as his lodestar, Netanel argues that copyright should be limited to how it can best promote robust debate and expressive diversity, and he presents a blueprint for how that can be accomplished. Copyright and free speech will always stand in some tension. But there are ways in which copyright can continue to serve as an engine of free expression while leaving ample room for speakers to build on copyrighted works to convey their message, express their personal commitments, and fashion new art. This book shows us how.

extending the control of your artistic rights

"When Less Isn't More: Illustrating the Appeal of a Moral Rights Model of Copyright Through a Study of Minimalist Art"
by Rikki Sapolich
2007, The Intellectual Property Law Review

This article presents the case of a European model for copyright in which, after the sale of a piece of art, as the creator, you can still maintain control of the art in certain ways. Perhaps, you seek to keep a three paneled painting as a single piece of art and you want to restrict future owners from selling off the panels individually? This article explains the pros and cons of a intellectual property system that allows creators to protects certain rights of their artwork for the duration of their lives (the lives of the artworks that is!)

"American copyright law developed to meet the constitutional mandate '[t]o promote the Progress of Science and useful Arts' by providing an economic incentive for artistic creation. Under the assumption that a major influence on the creation of art is the incentive of anticipated market demand, American copyright law grants artists the exclusive right to copy their work as an incentive for the artist to create, in turn benefiting society through increased availiability of works of art. This assumption fails, however, when applied to fine artists, who are generally outwardly influenced by culture and internally influenced by the desire to create, because economic incentives available under American copyright law are immaterial. Moral rights, as provided under European copyright law, are better adapted to address the interests of fine artists because they protect not only the finished work, but also the artist's control over the creative process and ultimately her persona and reputation. Protecting the artist's persona and reputation serves as an incentive to create. The artist will be more willing to expose her inner self, as expressed through her art, if she is assured that the public will treat her art with respect." (pg. 453

using existing works is a pain ... what to do?

Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright"
by Lydia Pallas Loren
14 Gel. Mason L. Rev. 271 (2007)

"Today's controversial climate of overly broad ownership rights for creative works makes the lawful use of existing works in any manner an edgy trip into the legal maze of copyright." (pg. 271)

This article points out a fact that most people do not know or perhaps, like to ignore, until it becomes a problem. "Registration of the copyright by the creator of the original work is not required to obtain or maintain copyright protection, and even a notice of copyright, which previously was required to include the name of the copyright owner, is no longer necessary." (pg. 272) Yes, this is absolutely correct...! Every email, SMS, etc. that you write is actually protected by copyright and you are the owner. Think about how scary that is, a world where you can own so much.

Where are those "fair use" legal opinions?

"An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005"
by Barton Beebe
(working paper as of July 5, 2007)

Most people, and especially academics raise the fair use doctrine as an integral argument to defend copyright law, but research about the outcomes of attempts to upholding fair use protection has been lacking. This papers attempts to serve as the first empirical study of fair use. The overarching finding of this study is that "conventional wisdom about that [fair use] case law is wrong." (pg. 1)

Essentially, the state of the fair use doctrine is in jeopardy and as a result there is a difference between what most individuals, even lawyers (except for those specializing in copyright law), believe is considered to be a protected fair use and what is actually considered fair use by the courts.

To promote musical expression >>> disaggregate interests of creators and distributors

"Promoting Diverse Cultural Expression: Lessons from the U.S. Copyright Wars"
by Raymond Shih Ray Ku
September 2007
Asian Journal of WTO & International Health Law and Policy

This article offers discusses the Convention of the Protection and Promotion of the Diversity of Cultural Expression (CCD) that was adopted by the UN in 2007. According to the author, "[d]epending upon the funding mechanism chosen for creation , legal protection for distributors may undermine the goals of the CCD leading to fewer works being created, disseminated, and made accesible to the public." (pg. 1) The argument put forward in this article is that, using the US as a case study, musical creativity and cultural expression are being held back by the current copyright system because under the current regime creators and distributors interests are protected in conjunction with one and other. The interests of both parties are not protected efficiently or effectively when protected in an aggregate fashion because digital technology and the internet have established overwhelming circumstances in which both parties may have opposing interests at stake.

Interesting excerpt to wet the palate...

"...[W]hom does copyright law protect? For most of copyright's history, the interests of creators and distributors were considered one and the same, and for the most part, were largely aligned with those of the public or audience. However, new technologies, especially digital techonology have always challenged a legal regime created in response to a specific techonology and means of distribution -- the printing press. Once unbundled, the assumption that the exclusive rights created by copyright serve the interest of creators, distributors, and the public becomes less clear. Many of the copyright controversies making headlines today, from the litigation and threats of litigation against Grokster, Google's Book Project, MySpace, and YouTube, among others, involve copyright owners attempting to use copyright to prevent the emergence of new distribution models and uses of their works. In other words, the middlemen of old are using copyright to preserve their status in a world in which many of these middlemen are not only unnecessary but also stifle an environment for creating, producing, and disseminating diverse cultural expression." (pg. 2)

"Manga Conquers America"

Wired Magazine's November issue featured an article explaining what manga is and how this iconic piece of japanese culture has made its was to the United States. Manga is the commonly mentioned case study of a type of art with a huge commercial market that thrives on copyright infringement. Not only do those who infringe make money, but those who are infringed upon also benefit from the the copyright infringement. According to this article, 22% of all published material in Japan is manga. Manga is a $4.2 billion industry in Japan alone.



According to Lessig the reason why Manga has succeeded in Japan is because of the distinction between a "read only culture" and a "read/write culture". IP laws were structured for a "read only culture" which is mostly obsolete in countries around the globe as a result of the Internet and digital technology. Essentially, the current copyright regime that is structured for a "read only culture" is inadequate in the United States. Interestingly, the Japanese have a comparable copyright system to that of the United States, but in the case of manga, publishers don't try to prevent the copyright infringement of manga because it recognizes the commercial and social benefits from the lack of regulation.