Copyright (or wrong?)

Last week, American University’s Center for Social Media released its study Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers. The report used numerous examples to illustrate how our copyright system has spun out of control. Stories about the reprt in the Washington Post, the Toronto Global and Mail
and Wired appropriately focused on the example of how the famous Eyes on the Prize documentary of the civil rights movement can no longer be shown – because all of the copyright permission for the clips used have expired.

The implications of this “clearance culture” are clear:

These rights practices consume time that might be better spent on the creative enterprise of the film itself, and sap already-strained budgets. More importantly, filmmakers often shape their film projects to avoid the problem of rights clearance, omitting significant details. On some occasions, the avoidance of clearance problems may help to dictate filmmakers’ choices of subject-matter, influencing them (for example) to avoid projects involving current events or modern history – which tend to be minefields rather than mere thickets because strict compliance through licensing is required.

Now, copyrights (and other forms of intellectual property protection) are an important tool for protecting intangible assets. But, as this story points out, they can also become major barriers to the creation of new intangible assets. As any good Schumpeterian knows, the forces of creative destruction need to be able to operate if economic growth is to be sustained. This lesson holds especially true for in the intangible economy where ideas are built on ideas and knowledge builds on knowledge. Finding a new balance between the rights of IPR holders and users will be a major public policy task as we move forward.

One of the places to start is with a reinvigorated fair-use doctrine, which allows use of copyrighted materials for purposes of teaching, commentary and criticism. But, many feel that fair-use provides only marginal benefit and has been gradually whittled away. Larry Lessig, in his book Free Culture, warns of the risks and cost of relying on fair-use as a legal defense.

Another suggestion in the report concerns the creation of a central clearance process – a one-stop shop for obtaining copyright permission. A variation on this is the Creative Commons alternative copyright. Under this approach, authors can pick and choose which rights to retain and which are automatically waived. For example, material publish on this blog utilizes the Creative Commons approach to automatically waive copyright for any non-commercial use as along as attribution is given while retaining copyright control over any commercial use.

All of this is an attempt to find the right mix of protection and use. As a recent article in the USC Annenberg’s Online Journalism Review, “Send ‘free’ to work: Creative Commons brings copyrights into the digital age”, “The challenge for the owners of intellectual property is how to make “free” work for them.” But the task goes beyond making copyright work for owners – it must work for all of us, including for future generations. It would be ironic indeed if in the name of fostering the creation of information, our legal framework conspires to prevent the documentation of the information age.

Thanks to Olga Francois at digital-copyright email list for alerting me to this story. To subscribe to the digital-copyright email list, e-mail:

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