 |
Orphaned Art and a Copyright Virus
by Cynthia Turner
|
To understand how a copyright virus would work, we first need to
understand the concept of “orphaned” art.
February 10, 2005
Two years ago, copyright abolitionist Lawrence Lessig tried to undermine
copyright protection of creative works. In the case of Eldred v.
Ashcroft, the Supreme Court ruled against him. But undaunted, he is now
trying again.
In Kahle v. Ashcroft, two commercial archives have recently asked the U.S.
District Court for the Northern District of California to declare
unconstitutional statutes that guarantee the term of copyright protection.
At stake are works first published after January 1, 1964 and before January
1, 1978. The Complaint asks the Court for a declaratory judgment ruling
that copyright restrictions on “orphaned works”, that is, works whose
copyright has not expired but which are no longer “available” to potential
users, violate the Free Speech Clause of the First Amendment.
Lessig defines “availability” as the ease with which any “user” can locate
or identify the creator of any work of art. In Lessig’s logic, the “need”
of a “user” to exploit the work of others trumps the right of the work's
author to determine when, where or if the work is exploited or what
compensation is due for its use. According to Lessig, a user is entitled
to expropriate the works of others because the act of expropriation is
itself an act of “creativity.” And Lessig argues that where a would-be
user of a work cannot lawfully exploit it because he cannot find its
author, then the user's right of free speech has been damaged.
Lawrence Lessig is the founder of Creative Commons and is conducting a
campaign to institutionalize “alternative” copyright licenses in as many
as 60 different countries. This “alternative” license claims to define
“the spectrum of possibilities between full copyright, i.e. all rights
reserved - and the public domain, i.e. no rights reserved.”
A proponent of the Creative Commons License explains the strategy of the
“alternative copyright”:
“Widespread voluntary adoption of this [alternative] license will render
measures like the extension of copyright irrelevant... the “Share Alike”
license requires derivative users to adopt a similarly open license. The
greater the volume of material with this kind of license that is out
there, the greater the incentive to make use of it, even at the cost of
forgoing commercial copyrights. Since most commercial culture depends
ultimately on unpaid appropriation of older material, the effects will be
cumulative, even VIRAL [emphasis added].”
Creative Commons does not recognize works of art as the unique expression
of individuals. In their logic, all “creators” build upon existing works
through derivative or “transformative” uses of the work of others.
Creative Commons routinely celebrates music remixers, collage makers, and
film and print publishers who seek to profit by republishing with impunity
the copyrighted works of others.
Consider the vast number of artistic works that appear without credit
lines in print or on the internet and you can easily see how insidious
this assault on copyright protection can be:
Step 1.
Declare any work of art whose author cannot be located or identified as an
“orphaned” work freely available for use by others.
Step 2.
Allow the user of any “orphaned” work to embed his “new derivative
creation” with the Creative Commons viral license. Now standard copyright
law could become as vulnerable to the copyright virus as computers to an
internet worm.
If users can have free legal access to art simply because certain authors
are “difficult” to identify or locate, we will see endless opportunities
for abuse. Commercial stockhouses, for example, databases and print and
web publishing industries could freely gather “orphaned” images for
exploitation. And the Copyright Clearance Center, which currently claims
they cannot pay artists for the photocopying of their work (because they
say they cannot track usage or identify authorship) would see their
continued failure to pay artists legitimized.
This case could affect the life’s work of many artists now in the prime of
their careers, and provide case law for the further erosion of copyright
protections for all artists.
— Copyright © 2005, Cynthia Turner for the Illustrators'
Partnership
This may be republished, posted or forwarded in its entirety to any
interested party.
|
Site copyright © 2003 Illustrators’ Partnership of America.
845 Moraine Street, Marshfield, MA 02050
781-837-9152
All rights reserved. |
|
