Over the weekend I had an experience with this blog that has never occurred before, at least to me. I was suddenly flooded with long, angry comments denouncing what I wrote in my last post. I receive over a dozen comments and other communications in the space of a few hours. I approved six of them for posting before making the decision to close comments, something I have never done before. I reached that decision because the posts were becoming repetitive and hostile. Many people have disagreed with my posts in the past, and I have always approved those comments unless they were mere personal abuse that did not contribute to a discussion, but this concerted effort was new to me.
All this was unpleasant, but I would have ignored it were it not for a coincidence of topic that occurred this morning. One of technology leaders on campus came into my office to tell me about the talk she heard at the 2011 EDUCAUSE Learning Initiatives conference last week. William Patry, who is one of the most well-known authorities on copyright law in the US, gave a presentation on “How to fix copyright” and apparently discussed the article by Scott Turow and others that was the subject of my oh-so-controversial blog post. Indeed, Patry was far less respectful of Turow than I was, calling him “the Glenn Beck of copyright.” My experience with some of Turow’s defenders suggests that the analogy has a grain of truth in it, and it confirms my fear that discussions of copyright are becoming as debased and unproductive as much of the rest of our political rhetoric.
But the point of this post, now that I have that off my chest, is to clarify, with the help of Patry, what I was trying to say last week.
My first point, which generated most of the heat, was simply that there were, and still are, lots of different ways by which creative authorship and the arts are supported. I never suggested that patronage should replace copyright, just that it was an alternative available to those who did not have copyright protection, like Shakespeare, or for whom copyright was not a beneficial system, like academic authors today. That some people are able to make their living because of copyright is undoubtedly true, and I have no wish to abolish copyright laws or deny them their livelihoods. But I would like us to recognize that copyright is irrelevant for many creators, who do their work for a variety of different reasons and varied rewards, and that it is an obstacle for some, especially those who teach. That copyright can be an impediment for teaching is illustrated by the law suits going on right now over teaching materials, brought against Georgia State University and UCLA by different segments of the content industries. While we do not need to abolish copyright in order to support teaching, we do need a robust recognition that exceptions to copyright like fair use are an integral part of the overall scheme of protection; without them the law would fail in its fundamental purpose.
This gets me to my second point, which Patry made far better than I did when he pointed out that artistic production in the pre-copyright era, including Shakespeare’s, depended on what we now call fair use. That is, Shakespeare was able to write many of his plays precisely because he was able to borrow and rework material from earlier authors to create something new and, in Shakespeare’s case, unarguably superior. Fair use, or exceptions like it, is an integral part of today’s copyright law precisely because it permits and circumscribes these kinds of opportunities. My concern when Congress is told that they must ratchet up protections and choke off avenues of sharing, especially on the Internet – which was Turow’s message to the Senate on the same day Patry spoke to EDUCAUSE — is that they are hearing only one side of the story.
UPDATES — Please take a look at the column written about Turow’s essay by Professor James Boyle of the Duke Law School at http://www.thepublicdomain.org/2011/02/22/presumed-guilty/
Bill Patry’s presentation is available at http://www.educause.edu/Resources/HowtoFixCopyright/224238.