Current Copyright Laws Threaten Creativity and Innovation and Need to Be Revised

Copyright laws; fundamentally, exist to protect and promote creativity. However, the legal ambiguity of the internet, the ongoing changes in societal policies, and continual advancements in digital media and technology, have set a precedent for copyright infringement litigation. The threat of copyright infringement litigation on the grounds of sampled intellectual property, threatens any innovative or creative process; particularly, when they’re arguably defended under fair use, and tenable acts of expression. Consequently, current copyright laws must be revised in accordance with these societal and technological changes to allow for the promotion of creativity and innovation, not hinder them on the basis of legal technicalities as they currently do. This revision is important to discern what constitutes copyright infringement, and what is; essentially, an innovative and creative process protected under fair use, and by extension, practised as a constitutional right to freedom of expression. It is vital to take into account the technological and social changes that have occurred in the recent years in order to achieve a fair set of revised copyright laws.

Innovation and creativity are, in one way or another, founded, inspired, or derived from existing ideas. However, the world’s current social and legal policies, somehow, deny this very concept. The first official copyright act in the world, originated in Great Britain in 1709, and was enacted by the Parliament of Great Britain as the Statute of Anne. The Statute was enforced to protect the original book authors from having their work copied, printed, reprinted, or imported without their permission. With this consideration, a sampled work that is used to create something different, is by no means an exact copy of an original piece, but rather an act of innovation achieved through a creative process. Despite this important distinguishing factor between copying and innovating, people who sample work in the fields of literature, music, films, plays, and art continually face litigation.

In the past decade, the internet has become a platform for people around the globe to sample, or remix work, using digital technology as a tool to facilitate this innovative and creative process.Transformative use is one of the conditions of fair use, and involves taking something old and turning it into something new. Remixing, sampling, and mashups all fall under transformative use, and; therefore, adhere to the policy of fair use under copyright laws. However, even with this consideration, the threat of litigation can still ensue if the copyright owner disagrees with your interpretation of fair use. This is because one of the major factors that weighs against the protection of fair use under copyright law, is whether or not a sampled or remixed piece will deprive the copyrighter of income. Therein lies the problem with the current status of copyright law –  if a sampled material is produced in a way that might deprive the copyright owner of income, or at least argued to have that potential effect, the legal road of copyright laws becomes more trickier to navigate. Even if the sampled intellectual property is produced to parody, criticise, or commentate – all conditions of fair use under copyright law, and on a greater scale, tenable acts of freedom of expression, the copyright owner can still take legal action against the producer of the sampled intellectual property.

American Disc Jockey, Girl Talk, real name Gregg Gillis, is renowned for his controversial and unauthorised mashups and digital sampling of licensed music. Though he hasn’t faced any litigation from the respective record artists and copyright owners of the licensed music he used, the threat is very much present. Gillis’ mashups and digital samples involve the use of several licensed tracks for which would be costly to attain clearance for. Even the sampled tracks contain samples from other artists that he would require clearance from to avoid any threat of copyright infringement litigation. The current status of copyright laws don’t take these social and technological changes into account, and presents an unreasonable burden of legal technicalities for anyone who wishes to participate in any sort of creative and innovative work that involves sampling existing work and ideas.

In this light, the current status of copyright law only seems to hinder creativity and innovation, and subvert freedom of expression. The threat of litigation may render people less inclined to participate in any innovative or creative means that involves sampling; thereby, suppressing their constitutional right to freedom of expression. In this respect, the current state of copyright laws conflict with the very purpose and nature of its establishment, which is to protect and promote creativity. Copyright laws need to be revised to take into account the social and technological changes that have occurred, and need to be continually updated with the ongoing changes in society and technology.

The market, the forum and civic technology

If you are reading the Code for Australia blog there is a good chance you believe in democracy. There is also a good chance that you believe that technology can create better governance. However the entrepreneurialism that many of us expect to push this progress is not native to the philosophy of democracy. Startups, disruptors, companies, and charities have been constructed on the basis of concepts of markets of free association, and transaction amongst other things. Although they are embedded throughout our democratic processes there could be good reasons that they do not necessarily belong in some of them. It would be just as absurd to posit that there can be no agreement between the philosophy of the forum and the market as it would be to posit that there can be no disagreement.

The forum

The forum

The market.

The market.

Let us, for a moment, reflect on the concept of the forum. To make a rash contradiction one could say that there are two types of fora*:

A macroforum such as the electoral system or the mass media and social media are spaces in which democracy can be seen to be the calculation of the public will.  An electoral system in a very clear sense adds up votes of citizens. The mass media, particularly social media, similarly calculate the public will of interest to the citizens. Commercial or charitable interests could be involved by creating software that mediates and facilitating these procedures. However, it seems reasonable to worry about their interests warping the processes of calculation. One commercial mediator might mask or ignore the public will in favour of the interest or ideology rigging the results in their favour or interest.

A microforum such as a court jury or public planning meeting involves the creation of acceptable consensus in public reason. The competitive reasoning of the market and its notions of private consumer preferences can be infectious. Commercial providers of democratic mediation may stand in the way of consensus if they burn the assumptions competitiveness and commerce into deliberation. This form of manipulation, intentional or otherwise, is surely the antithesis of deliberative democratic process.

Should we conclude that money and commerce do not belong with the development of civic technology? It isn’t that simple:

Entrepreneurial consultants can advocate for deliberative technologies of public engagement and thereby grow their sphere influence.  Existing outside of the public sector, commercial consultants may also provide political naivety and process orientation that may release public participants from bureaucratic and political strictures of the day. After all, a democratic process needs advocates and these people need to be financially able to commit to that work.

There is also very popular critique, particularly from commercial spheres of our society, that the public sector is inefficient. I don’t think I have to argue for this notion. However, the public management of public things provides a healthy holding environment for the citizen and its ability to interact civilly with neighbours in other matters^.  Completely divorcing the public sector from the provision of material things is antithetical to an open democratic society because the market is not a forum.

So is it a Faustian bargain to let the market into civic tech?

Article written by Frederick Michna


* Hendricks, C and Carson, L (2008), “Can the market help the forum? Negotiating the commercialisation of deliberative democracy” Policy Sciences, 41, 293-313

^ Honig, B (2012), “The Politics of Public Things” No Foundations, 10, 69-76.