Grazing in the media fields

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In 1833, William Forster Lloyd, then a professor at Oxford University, wrote a book on overpopulation describing the "Tragedy of the Commons," a metaphor where unbridled public access to a resource ultimately dooms that resource to overexploitation. In what's now the classic example of this problem, a group of animal herders let their flocks graze on the same pasture. Each herder realizes that for every extra animal he brings along, he gets an extra full share of profits for himself at the expense of a tiny loss of quality in the pasture. Eventually, the pasture is ruined from overgrazing. By taking the rational steps, our herders have eliminated a critical resource.

What got me thinking about Lloyd's parable is its application to copyright law in Duke University professor James Boyle's paper, "The Second Enclosure Movement." Boyle briefly mentions the Tragedy as the perspective taken by media producers in our culture when considering the public--that if the public consumership were to have free access to media, that media might be steadily devalued to worthlessness, or more clearly, media is the pasture and we are the animals. Even though it was an offhanded comment in a dense, frustrating legal article, the reference struck me as remarkably lucid. Illuminating, even. By exposing the contempt that media holders show toward the consuming public through their overzealous protection of copyrights, Boyle has perfectly captured the character of the media climate in which we live. After some research into Boyle's other work (notably the comic book/pamphlet Tales from the Public Domain) I was confronted with some unsettling trends in the interactions of copyright law and the public domain, encompassing the spheres of law, history and the medias.

As a technology-savvy media consumer I've been running up against issues in copyright law for some time, starting with Napster and its derivatives, up until now when copyright holders actively seek to discourage the free consumption of their media through a combination of technology and awareness campaigns. But the debate about piracy is only a small part of the discussion about the tension between fair use and copyright protection. The real meat is far more subtle, and has far more important implications for the future of our culture.

Copyright law exists for two purposes: first, to protect the work of media creators, so that they might receive fair compensation for their effort; and second, to encourage the creation of new works, perhaps using old works as a basis. Right away this sets up a delicate tension, which lawmakers must work hard to balance correctly. Our second purpose is perhaps more important in the long-term: throughout history, the most creative societies have had a large base of writing, art and learning to draw upon. Consider that without a healthy public domain there would be no Andy Warhol, Walt Disney, Pulp Fiction, Hunter S. Thompson, Black Sabbath, or any number of media pieces and producers who appropriate the ideas and images of the past. Or, as the appropriationist art group Negativland beautifully put it in their essay "Two Relationships to a Cultural Public Domain":

[T]he natural human approach to our own culture was to participate in it by not only absorbing it as an individual, but also by remaking it--adding to it, removing from it, recombining it with other elements, reshaping it to our own tastes--and then redistributing the adjusted results ourselves. Virtually the whole history of human culture consisted of altering, reusing, and copying from the universal public domain in various re-imagined ways.

The need for a public domain in our media-centric, postmodern society is a given; we live in a time where nothing is new. But the issue of appropriation is at the heart of the public domain debate. Record, film and television companies are empowered by an ever-intensifying set of copyright laws, aggressively pursuing media works which appear to appropriate their intellectual property. Boyle's Tales from the Public Domain describes myriad instances of copyright mongering, but two stand out as especially interesting. During the filming of a pivotal scene in the documentary Mad Hot Ballroom, a cell phone in the background rang to the tune of the Rocky theme song. EMI, the rights-holder of the song, demanded $10,000 if that scene were to be included in the final cut of the film. In another documentary, The First Year, about the first work experiences of public school teachers, a teacher was driving some students to an event when "Stairway to Heaven" came on the car's radio. The teacher turned up the song while the kids squirmed and complained. The scene was an especially powerful portrait of the generation gap, but when the film-maker couldn't afford the rights to use a snippet of the song, the whole thing had to be cut.

In both cases, a documentary--meant to record the facts of its time--is targeted by copyright holders looking for compensation. As well, both cases raise the same question of public domain: if these songs have become so ubiquitous as to be captured incidentally during daily life, don't they, at least in small part, belong to the public?

To fully understand the answer to that question, we'll have to take a look at America's copyright laws--American because that country produces almost all of the media which forms the basis of our North American culture--and try to get a sense of their evolution.

Works produced before 1923, when the copyright has not been renewed, are clearly in the public domain and may be used in any way by anyone (this is why there are so many competing editions of classic books on bookstore shelves). From there, copyrights become much more complicated. Works published from 1923-1963 are copyrighted only if they were originally published with a copyright notice, for a term lasting 95 years after the publication date--if the copyright was not renewed, that work is now in the public domain. Works published from 1964-1977 are copyrighted for a term of 95 years from publication. Works created before 1978, the date of the last major revision to American copyright law, but not published hold copyright for the author's life plus 70 years. Works created before 1978 but published between then and 2003 are copyrighted for the author's life plus 70 years or until 2047, whichever is greater. Works created before 1978 and published after 2002 are protected for the author's life plus 70 years. Finally, works created from 1978 forward begin their copyright terms when they are published, for a term of the author's life plus 70 years (and in the case of corporate or anonymous authorship, the shorter of 95 years from the date of first publication or 120 years from creation).

As copyright law grows it becomes ever more byzantine. Worse, it is the creator's responsibility to research the media they wish to appropriate and license. If simply finding out whether a work is copyrighted or not is this complicated, the process of contacting the rights holder, licensing the work, and payment for that licensing is infinitely more complex. Copyright holders, then, are insulated from artists who wish to use their work by a system of laws which discourages the use of those appropriations at every turn, and then severely punishes those appropriating artists in cases of what should clearly be fair use. As more work enters the copyrighted sphere and new copyright laws are passed which lengthen the copyright term and shrink the public domain, artists find themselves with fewer "raw materials" on which to base their works; especially true if those works are meant to faithfully represent our media- and corporate-attuned society.

In Tales from the Public Domain, Boyle uses the image of an egg to illustrate how copyright law has been perverted. Diagramming the shell and its insides, a character says, "Traditionally, we had a thin layer of intellectual property protection surrounding a rich and large public domain. [Intellectual Property] didn't cover very much, didn't cover it for very long." He then crushes the egg, explaining that the balance between protecting the original producer and promoting new creative growth has been upset. Again, Boyle has created a simple, powerful image to explain copyrights.

A short survey of copyright law's dangerous trajectory cannot capture the depth or the severity of the problem. If we are to avoid long-term damage to society's arts, at the very least we can educate ourselves on how to avoid this cultural erosion; at the best, we can go forth and create new art which incorporates new content with old. Again, Negativland puts the situation most clearly:

Observing this now generally culture-wide acceptance of appropriation methodologies, one would think that sympathetic laws of allowance would also emerge to encourage the practice and assure that it is able to proceed legally. But that has not yet happened. What's wrong with this picture?