A Copyfighter’s Musings

One feature of Professor Fisher’s plan that I find especially intriguing is the removal of restrictions on derivative works. Sure, derivative makers would have to give a portion of their revenue to the original work’s creator, but they wouldn’t have to seek permission, go to court, or extensively negotiate license fees.

Today, to achieve the arguably good aim of incentivizing creators by allowing them to capture further value from their original creations, we consequently silence the expression of others.  In a time when technology is breaking down the distinction between customer and creator, copyright law’s exclusive right to make derivative seems out of step.  We can all be making homemade remixes, mash-ups, and collages, drawing on and contributing to a creative commons; yet, most of us cannot do so easily, cheaply, and legally. 

Why are only parodies – whatever those are – allowed? Why not satires? Why not derivatives that only use a small portion of the original? Why should a copyright holder get added revenue if the derivative would not cause any economic damage? And why should all creators be left vulnerable to lawsuits adjudicated under the uncertainty of fair use?

Fisher’s proposal would sweep all this away in one-shot. [Footnote: Of course, one can imagine lawsuits over whether someone reported the right percentage taken from an original.]  While that solution may seem like a clean and simple way of eliminating the problems inherent in the derivatives right, it’s a long way from where we are right now.

I’m interested in researching public policy solutions that could be more readily applied within the current confines of copyright. Some ideas:

• Could a revamping of fair use be sufficient?  Or, will any fair use balancing test inevitably lead to sustantial uncertainty that significantly chills speech?
  
• How about Kozinski’s plan to move away from fair use and towards a restructuring of damages without injunctions? You’ll still get dragged to court, but at least you won’t be totally enjoined. Is estimating damages still too uncertain a standard?
  
• Could any form of compulsory licensing work? We already have it for cover songs. Are the transaction costs prohibitive? How would we adapt compulsories to sampling in different mediums and to account for the degree of sampling/remixing/remaking/reimagining done?  Do we create mechanisms to separate a “clean films” company from a Vicki Bennett from a fan fiction writer? How?

I’m sure there are papers on this somewhere, so I’m going to start looking. If you can suggest anything, please send them to me.

Filed by Derek Slater at 3:57 pm under Big Ideas
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