The recent news that the Canadian Recording Industry Association has reached a settlement agreement with artists is not, strictly speaking, about scholarly communications. But it does give rise, I think, to several reflections about the way copyright works for all of us, including scholars.
The story, which is explained here and here, is basically about how difficult it can be to clear rights to reuse creative and scholarly works. The record companies represented by CRIA found an easy way around this problem. When they could not easily locate a rights holder to pay royalties to, they simply put the work/artist on a “pending list” and went ahead with the planned use. The stated intent was to pursue contact and payment later on, but not to let the delay in locating a rights holder prevent the new compilation CD or whatever. Of course, there was little incentive to continue to try and find someone to pay; hence the lawsuit and the settlement. There are several interesting lessons here.
First, as several commentators note, the content industries that often bellow loudest about respect for copyrights have no interest in showing such respect for other peoples’ rights. The rhetoric of “someone has to pay or no one will create” is usually false and always self-serving. Many people create because they love to do so, and the claims, especially from the recording industry, that big content defends little artists is often contradicted by the former’s actions.
Second, this case is another reminder that copyright has never really been an author’s right; it was created and enforced by intermediaries. The history in England shows that when they could no longer get exclusive royal grants in particular works, the stationers (early publishers) lobbied Parliament for statutory exclusive rights, and used authors as their justification. But content industries have always sought to shortchange creators; their business model depends on doing so, and that is true more in the academic realm than anywhere else.
I have recently been reading a superb law review article by Christopher Sprigman from 2004 called “Reformalizing Copyright” that makes these arguments very forcefully. Sprigman argues that our “new” unconditional system of exclusive rights has badly exacerbated the problems. It is well worth a read for those who are not already familiar with it.
Finally, it is worth noting that these “pending lists” were really just a solution to what we all recognize as the orphan works problem. When we cannot find a rights holder, can we please just make a list and proceed with our use? We promise to keep trying to contact that rights holder. Of course, libraries that confront the difficulties of using orphan works would always take a much more conservative and careful approach. The pending lists were an excuse, not a solution, but they grew out of that same orphan works dilemma that has grown so intense, especially since we extended copyright protection to everything, regardless of its economic value or the intent of its creator(s). The solutions to the problem will be complex, but only because others will be unwilling to take the slipshod approach taken by the CRIA, those so-called defenders of copyright.
Thanks for the link to Reformalizing Copyright published in 2004. A good example that scholarly communication directed at change, even when largely ignored by Congress or the powers that be when first presented, can still speak volumes years later. I like Sprigman’s view which addresses the economics and purpose of protection (excerpt from his article):
“The growth of the Internet, and, more broadly, of digital technologies, has opened up new possibilities for public access to and use of creative works that did not exist when Congress was removing formalities from copyright law. Before the digital age, the cost of copying and distribution had more effect on the ability of most people to access, use, and transform creative works than did the copyright laws. But now digital distribution is cheap and digital copying is essentially free. Today copyright law has emerged as the principal barrier to the creative reuse of a large amount of material that under the former conditional copyright regime would not have
been subject to copyright in the first place. The majority of creative works have little or no commercial value, and the value of many initially successful works is quickly exhausted. For works that are not producing revenues, continued copyright protection serves no economic interest of the author. But in an unconditional copyright system, commercially “dead” works are nonetheless locked up. They cannot be used as building blocks for (potentially valuable) new works without permission, and the cost of obtaining permission will often prevent use. In such instances copyright is radically unbalanced: its potential benefits are depleted, and it therefore imposes only social costs.”