Copyright and Creativity - Essay Example

?Copyright and Creativity Introduction Under the US law, copyright protects the expression of an idea, but not the idea itself, that can be established in a tangible medium. Thus, this protection includes the rights to use, copy, distribute and perform, in the case of the performing arts, certain works and is exclusively granted to the copyright holder of the work alone. Copyright advantages the author, the writer or the creator of certain specific works because they are given the sole right, for certain periods of time, to use their works. There are of course, exceptions to the copyright protection, but these exceptions are vaguely set out in the law and their determination will depend entirely on the appreciation of the courts in individual cases. It is purported that copyright primarily serves the end of encouraging creativity, because of the inspiration it provides to authors/writers/creators and would-be authors/writers/creators that will see creativity as an opportunity to gain economic advantage as well as an acknowledgment of their talent. This claim, however, is being contested by those who argue that artists have been churning out great works of arts for centuries without the benefit of copyright protection. Worse, there are those who perceive copyright protection as an unwitting tool for stifling creativity as illustrated by recent cases where works have been prohibited from seeing publication on the ground that they infringe the copyright law. The question that is being contemplated by this paper, therefore, is whether or not copyright protection encourages or stifles artistic creativity. Background The US Copyright Law has its roots in the 1710, Statute of Anne, an English law that ended the monopoly of the Stationer’s Company by vesting exclusive right of books to their authors for fourteen years, subject to renewal. After the American Revolution in the 18th century, several states their own copyright laws that took after the Statute of Anne, but the Constitutional Convention decided that a unifying law on copyright should be enacted nationally and thus, attached a clause mandating such passage in Article 1 of the proposed Constitution. The subsequent Copyright Act of 1970 copied the 14-year period of exclusive right to authors renewable for another 14 years and was made applicable solely to books, maps and maritime charts. Eventually, however, the US copyright law was broadened to cover other original works as well. In the Copyright Act of 1909, the coverage of the grant extended to all written works not only in the US but to various written foreign works as well. In addition, it extended the period of the exclusive right to 28 years, which is renewable for another 28 years. The next copyright law, i.e. Copyright Act of 1976 is the precursor of the present US copyright law. This Act eliminated many of the earlier features as well as added new ones. For example, it established a single period of exclusive right for all kinds of works, which is the life of the author plus 50 years, dismissed the formalities and made the right applicable the very moment the work becomes a concrete medium of expression. 1 Before the present consolidated US copyright law came into being, the Copyright Act 1976 went through various amendments and supplementations. These include the following: the Audio Home Recording Act of 1992, which added copyright grant to digital audio recordings; the Sonny Bono Copyright Term Extension Act of 1998, which extended the exclusive right to 20 years, and; the Digital Millennium Copyright Act of 1998, which deals with high-technology works. 2 Features of the Present US Copyright Law Under the present US Copyright Law, which is denominated as Title 17 of the United States Code, the exclusive rights to reproduce, prepare derivative works, distribute copies, perform, display publicly and use in a digital audio transmission of works, are granted only to their authors or creators.3 The copyright grant covers only 8 kinds of words, and their respective derivatives, namely: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings, and; architectural works. 4 The same copyright law, however, provides certain exceptions notable of which is the fair use doctrine. 5 This doctrine particularly limits the copyright owner’s right to reproduce a protected work and can be established only after determination of the following: the purpose and character of the use; the nature of the copyrighted work; the amount of the work used, and the effect of its use on the market.6 Considering the vagueness of this provision, which does not actually specify its practical application to real cases, much of the work to be done in determining whether an act falls as infringement or fair use falls in the hands of the courts. Other exceptions to the copyright protection are reproduction made by libraries and archives, 7 transfer of a particular copy or phonorecord made by the owner of a particular copy, 8 certain performances and displays such as those of teachers and pupils in the course of teaching activities, 9 secondary transmissions,10 and ephemeral recordings. 11 With respect to foreign works, the US abides by the Berne Convention and the Universal Copyright Convention. The Berne Convention, which is the brief title of The Berne Union for the Protection of Literary and Artistic Property, is an agreement among several countries to adopt certain copyright principles in its domestic laws. Among the copyright principles that the Berne Convention wants to integrated domestically by state signatories are the following: a country must offer the same level, at least, of copyright protection to a foreign work that the national country of its author offers, if the latter is a Berne Treaty signatory; countries must not require formalities before they can extend copyright protection to foreign works; the minimum term of such protection must at least be equivalent to the author’s life plus fifty years; the protection of certain defined rights of attribution and integrity; the copyright protection extended by a host country to a foreign work must be apart from the protection extended by the country of origin of the author/creator, and; the copyright holder must have the exclusive rights to reproduce, translate, adapt and perform publicly the works. On the other hand, the Universal Copyright Convention or UCC is an alternative source of copyright law for the non-signatories of the Berne Convention. The UCC allows multiple periods of copyright protection for various works as well as did not require automatic protection even without registration, unlike the Berne Convention. Aside from the foregoing, the UCC abide by the same copyright principles as the latter. 12 Copyright Law and Creativity Laws do not by themselves exist for their own sake; every law has an underlying rationale that serves another higher purpose. It is said that the underlying rationale for the existence of copyright laws is the promotion of creativity. Author Simon Stokes believes that the justifications for copyright laws can be broadly classified into three: economic/utilitarian; public policy, and; moral rights. The economic/utilitarian justification simply means that copyright protection ensures that the author/creator continuously and uninterruptedly reaps the fruits of his labor and in this sense, encourages not only that particular author/creator, but others as well who wants to follow the former’s example to create works that can be made subject to copyright protection. The protection of the law extended to their works serve as an incentive to create more. Put another way, copyright protection may impact the author/creator in two ways: first, he attains positive benefit out of his own work, and; second; he is encourage in creating the work with the knowledge that he can use it for his benefit. 13 On the other hand, the public policy justification is underpinned by the principle that it is in the interest of the government to work for the development of arts and sciences to strengthen and advance society and the nation in general. James Madison himself declared that copyrights and patent work for the public good. 14 Successfully encouraging artists and creators to come up with various works in arts and sciences as a consequence of extending protection of their right to use them exclusively is said to redound to the public good ultimately because the public will surely reap the benefits of living in a highly civilized society with pronounced and distinct taste for the arts and sciences. 15 Finally, even the notion of moral rights can serve as a justification for the enforcement of copyright laws, according to Stokes. This rationale is underpinned by the idea that the creator or author of a work has an inherent, just or moral right over his creation, which is an extension of the “just reward or just desert” principle under natural law that a laborer has an exclusive right over the fruits of his labor. The core rationale behind this principle is the idea that for the effort exerted by the creator or author in creating his work, he justly deserves the recognition and reward of preventing others from copying his work. In short, the situation calls for quid pro quo, where the creator whose creation benefits society must be in return rewarded by that same society by conferring proprietary rights upon his work. 16 All the aforementioned justifications for copyright protection boil down to the idea that copyright is good because not only is it the just thing to do but it encourages creativity because of the benefits it bring to the author/creator, which in turn benefits the public as a whole. The idea is great and seems a convenient way to hit many birds with one stone at once, so to speak, but a closer scrutiny of it reveals that it is far from ideal. For one, there is a nagging doubt as to the use of the law, a very pragmatic concept, in promoting creativity, which is hardly an empirical exercise. Author Shubha Ghosh voices out others suspicious incompatibility between the law and creativity and calls the combination as “desirable as ‘creative accounting,’ a cover for fraud of various financial varieties.” 17 This is because of the intrinsic incongruity between the two – creativity entails freedom from any form of restraint while the law is precisely the opposite. 18 In short, there seems to be a lack of tie or a common ground that binds the two concepts. There is also doubt as to whether the law, such as copyright, had actual influence in the burgeoning of the creative arts or that its absence had thwarted it, judging from a historical perspective. Great artists such as Leonardo da Vinci or Manet, for instance, were not less creative because there were no copyright laws during their time and it is doubtful that Picasso’s creativity was, in any way, influenced by the existence or absence of copyright. However, painters may not be really a good example to illustrate the effectiveness of copyright laws in encouraging creativity because serious painting aficionados buy only original paintings and not copies thereof. 19 Nonetheless, it has been submitted that there is a doubt that genuine artistic creativity can ever be affected by copyright. If there is any effect at all, it is not on the artist himself, but on the people and entities surrounding the artist such as the publishers, impresarios and galleries, who would not probably take the risk on behalf of the creators/authors had copyright laws were totally non-existing, 20 although this point could still be subjected to debate. As a matter of fact, throughout history, it is the book publishers, and not the authors themselves, who constantly went to court to uphold and fight for copyright protection. An example of this is the Association of American Publishers (AAP) whose battle hymn is to “nurture creativity by protecting and strengthening intellectual property rights, especially copyright.” It is not quite clear, however, how copyright is vital to the publishing industry as it is to other sectors, such as galleries and music producers. 21 Not only is the role of copyright protection in actually promoting genuine artistic creativity, as indicated in the previous paragraphs, being doubted, but it is claimed that copyright protection, in fact, stifles creativity. The well-known cartoonist and animator Nina Paley, for example, recounts how a film, viz. Sita Sings the Blues, she had labored on for three long years now had been declared unfit for distribution for allegedly violating copyright laws. The film had made use of songs popularized in the 1920s sang by Annette Hanshaw and Paley did not pay for their use, which would have cost her around $50,000. Before copyright laws prevented it from being distributed, it had already won great reviews and awards from several award-giving bodies. According to her, the songs were integral to the film and sequences were built around each one of them that it would be impossible to substitute other songs in their stead. 22 Another recent case, this time involving book authorship, illustrates the vague application of the copyright protection law that can be perceive as more stifling than encouraging creativity. In a recent case that involves the classic novel “Catcher in the Rye” by famous novelist J.D. Salinger, an American judge prevented the publication of a book entitled 60 Years Later: Coming through the Rye, a spin-off novel of Salinger’s Catcher that continues, in a parody style, the life of the novel’s protagonist Mr. C. The spin-off novel was written by Swedish writer Fredrik Colting and was first published in the UK. Despite the fact that the Swedish author and his publisher claimed that the book is actually a parody and critique of the Catcher’s main protagonist, the judge in the case prevented its publication on the ground that it took a substantial part of the original in the recreation of the novel. 23 It is argued that there is no such thing as original artistic work, but that artist/authors/creators take their inspiration from some common events and objects and even from the works of others and interpret them from their unique point of view, which make their works original. It is inevitable therefore, that some common features in artists’ works may surface, without anyone intentionally infringing the copyright protection law. This overlap of perspectives may further muddle and blur the distinction between creativity and copyright infringement. The foregoing cases illustrate that indeed, despite the underlying objective of the copyright law, which is to promote creativity, sometimes it has unwittingly become a tool in attaining the opposite effect. There is no doubt that Paley used her creative juices to come up with such a film as Sita Sings the Blues or that Colting employed prolific imagination to create 60 Years Later: Coming through the Rye. Although both world partially made use of earlier works of other artists, there is no doubt that their works were their own and therefore, original. It just so happened that the works of other artists enhanced or served as springboard to theirs. In this sense, the purpose of the law, which is to promote creativity is not only defeated, but worse, it stifles creativity. In contrast to the method employed by copyright protection in promoting creativity, a group of technocrats established the movement called Open Source with the end view of encouraging creativity. Instead, however, of restrictions as its main tool, the movement uses collaboration to create and produce new technology. The movement is called Open Source because it is exactly that – it brings together knowledge and expertise from all sources all over the world to collaborate and achieve a goal and the resulting product, such as software, are distributed freely to anyone who finds use for it. One of the earliest examples of this type of collaboration is the computer operating software Linux, which came about when Linus Torvalds sent a message to just about everyone to help him build a free operating system in 1991. Today, Open Source collaborates not only on software projects, but on other more ambitious ventures as well such as in the field of genomics and medicine. 24 Open Source is an illustration of promoting and encouraging creativity without setting limits and restrictions as copyright law does. The unwitting stifling effect of copyright law on creativity has some parallelisms with the theory of customization and privatization in digital media by Daniel Palmer. Palmer theorizes that although digital media seems to encourage the freedom of user control by including features that encourage users to customize their viewing and listening experience, thus, enhancing active pro-activity, this is actually an illusion. This illusory aspect stems from the fact that the seeming freedom given by proactive digital media is actually closeting the user inside a fixed world that digital media has created itself devoid and detached from reality. 25 The parallelism of copyright law is to Palmer’s theory is that copyright gives a false sense of illusion that giving the author/creator the exclusive right over his work spurs creativity when in fact, it narrows down creativity because of the limiting effect it has on artists/creators/writers. Conclusion The Copyright Law purports to encourage creativity by granting to authors of works the sole right to use their works, subject to certain exceptions, for a fixed duration of time, which is not, by any language, short. Authors and creators of artistic works need to be acknowledged and their right to use their work for economic ends secured and to this end, copyright protection is useful. The claim, however, that copyright encourages creativity is difficult to defend and is subject to contrary claims. For example, various artists, painters and musicians have produced great artistic works in the past without benefitting from the help of copyright laws considering that the earliest copyright laws extended their protection only to books. Moreover, not only is copyright protection’s positive effect on true artistic creativity doubted, but there are those who argued that it actually stifles creativity. Some recent examples of this argument are the cases of Nina Paley and Frederik Colting, whose works have been prohibited from being distributed and published in the US, although they have earned great reviews and accolades. Perhaps to illustrate that copyright is not the correct way to encourage creativity, the movement Open Source is beginning to gather steam. Basing itself on a free and open use platform, which is the complete concept of copyright protection, Open Source makes use of collaborative efforts of technocrats and experts all over the world to produce and create new software, products and technologies that are then made open for the use of the public without requiring license. Although this idea is noble, it is not tenable at all times especially for fledgling artists whose day-to-day subsistence depends on their craft. There must be therefore, a middle ground between copyright laws and the Open Source concept. References Alpern, A. (2003) 101 Questions about Copyright Law: Revised Edition. 2nd Edition. Courier Dover Publications. Fogel, K. (2008) How Copyright Restrictions Suppress Art: An Interview with Nina Paley About "Sita Sings The Blues." http://questioncopyright.org/nina_paley_sita_interview. Ghosh, S. (2011) Creativity, Law and Entrepreneurship. Edward Elgar Publishing, 2011 Goetz, T. (2003) Open Source Everywhere. Wired. http://www.wired.com/wired/archive/11.11/opensource_pr.html. Mobile References (2007) US Patent, Copyright, and Trademark Laws Quick Study Guide. MobileReference. Palmer, D. (2003) The Paradox of User Control. http://hypertext.rmit.edu.au/dac/papers/Palmer.pdf Stokes, S. (2001) Art and Copyright. Hart Publishing. The US Code, Title 17. Read More