Drawing Distinctions

By , November 11, 2010.

Earlier this month, I wrote about the Copyright Principles Project, an independent initiative that presented twenty-five recommendations for reforming copyright law for the digital age. One of the reasons I felt it was worth mentioning was because, unlike many other reform efforts, the Copyright Principles Project included participants from a wide variety of perspectives: academics, content industry representatives, and private practitioners.

One of the contributers to the Project was Jeremy Williams, Senior Vice President and Deputy General Counsel of Warner Bros. Entertainment. This past April, Williams joined Pamela Samuelson — the Project’s coordinator — and several other Project contributors for a two-day conference marking the 300th anniversary of the Statute of Anne, the first modern copyright law. Hosted by the Berkeley Center for Law & Technology, the Copyright @ 300 symposium used the anniversary as an opportunity to look back at “the law’s influence on the history and evolution of the Anglo-American copyright tradition” and look forward to copyright law’s challenges in the future.

Williams spoke to attendees at a seminar titled “Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.” The Berkeley Center has audio from the event available online. I recommend giving it a listen; Williams talks about the importance of copyright attitudes for the future and touches on a number of themes I’ve discussed here from a perspective that is seldom seen in online discussions and academic literature.

Copyright attitudes

Williams joshingly introduces himself as a “defender of those poor, down-trodden Fortune 500 companies.” The health of copyright in the future, he states, depends entirely on the attitudes of “Digital Natives.” It will not be long before the generation that never knew a world where everything is connected will be “lawmakers, norm-makers, and consumers.” Williams goes on to ask, “How do we promote respect for good copyright attitudes” when millions are simultaneously authors, distributors, and infringers.

This past Monday, I pointed out a recent paper that sheds some light on what these “Digital Natives” currently know and think about copyright law. Williams’s talk reflects a recognition of what the authors of that paper have found to be true. With those current attitudes in mind, he lays out what he considers should be the two main goals of copyright policy as it looks ahead:

  1. Empower individuals as creators. Policymakers and stakeholders should try to steer clear of talk about the “wrongness” of noncommercial copying. Extending this goal to small producers, content creators should strive to make licensing of their content for creative uses cheap and easy, and give wide berth for fair use.
  2. Move enforcement away from individuals and toward digital intermediaries.

Creative vs. Consumptive Uses

Next, Williams discussed the importance of distinguishing between creative and consumptive uses, a distinction I have previously made on this site. I wrote that the distinction is important to make because you’re dealing with an entirely different set of questions when you talk about fair use, remixes, and mashups then when you talk about filesharing. As it turns out, this is exactly the approach that Williams suggests is important for the future of copyright.

He says that promoting healthy copyright discussion requires a different approach for both types of uses: increased tolerance toward creative uses and increased focus on widespread, uncompensated dissemination of consumptive uses and the harm they cause.

From his own experience at Warner Bros., Williams identifies the primary creative uses that major creative companies deal with most often: fan uses and, as he puts it, ad hoc uses, like mash-ups. He suggests that companies like his should tolerate and support noncommercial uses — even tolerate some commercial uses. This is the approach he has taken, giving the okay to fan sites even when they use incidental advertising to support the site but drawing the line at fan merchandising. For third-party user-generated content sites like YouTube, he advocates “smart” technological filters that can identify uses of copyrighted works but allow creative uses like mash-ups.

Most importantly, Williams reiterates that these kinds of discussions should not revolve around copyright law. Rather, the focus should be on fostering mutually respectful behavior between creators and users.

Individual vs. Industrial Responsibility

The rest of Williams’s talk seemed to continue a meta-theme of drawing distinctions to further the health of copyright in the future. The next distinction he discussed was between individual responsibility for upholding copyright protection and “industrial” responsibility.

Basically, Williams says we should move away from placing responsibility on individuals as much as possible. People should be able to enjoy copyrighted works without thinking about copyright law.

The digital intermediaries — user-generated content and social networking sites — should instead be induced to help reduce the harm of widespread, uncompensated dissemination of copyrighted works, and copyright owners should be allowed to share in the value their works provide to these sites. Interestingly, Williams believes we should reduce the present focus on secondary liability doctrines. These doctrines suffer two disadvantages: because they require a showing of direct infringement, there is still a focus on individual behavior, and the factors involved in determining secondary liability — knowledge, inducement, etc. — are difficult to apply, leading to an uncertain and muddy legal landscape.

Williams’s recommendation? “Be direct about it.” Those who can protect copyright, should protect it. Those who can are likely to be the previously-mentioned social networking and user-generated content sites. Williams thinks the best way to implement this is through voluntary agreements and reasonable technological measures, with the law operating in the background as a way of inducing these sites to help solve problems in ways that are not commercially harmful to them.

Protest vs. Obliviousness

While you can find those people who embrace piracy as a “cause”, who believe they are making a “statement” or protesting against somebody or something when they share files without permission, the majority of people, especially digital natives, download simply because they can. Williams relates a conversation he had with his daughter. He asked her what her friends “think” when they choose to download music off p2p or torrent sites; she answered, “they don’t think.”

Unauthorized files are simply “there,” and unless you know otherwise, it is not unreasonable for someone to assume that if you find something online, you can download it. The future of copyright depends on addressing this obliviousness and helping the next generation understand the value copyright gives to creators.

Good Guys vs. Bad Guys

Williams wraps up his remarks by pointing out the one distinction that shouldn’t be made. Both sides in the copyright debates need to move past an “us vs. them” mentality, a “good guy-bad guy” way of thinking. Copyright is good for society and culture. Most people recognize the value of creativity and of artists. The emphasis should move away from the rules of copyright — ie, the notion that copyright exists solely to punish infringers — and toward the role of copyright.

Kids and Kopyright

By , November 08, 2010.

Media Law Prof Blog points out a recent paper that examines the attitudes and beliefs of youngsters about copyright: Youth, Creativity, and Copyright in the Digital Age, by John Palfrey, Urs Gasser, Miriam Simun, and Rosalie Fay Barnes. The abstract reads:

New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, “Digital Natives” — young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways — are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.

The paper is worth reading and should prove valuable to other scholars and commentators for its research. The conclusions of the authors shouldn’t be too surprising to many of you, but it is useful to have confirmation of the assumptions of attitudes about copyright law among young people. In addition, the authors provide quite a few interesting quotations from “Digital Natives” which adds depth to the qualitative findings.

Among other things, the researchers found that confusion about copyright starts with the very basics: what does copyright ‘mean’? “Many of the young people we spoke to confused copyright with notions of plagiarism or patent protections; for example, one high school student wrote: ‘[copyright is] protected by law so you can’t steal ideas.'” Anyone familiar with copyright law won’t be surprised by that finding, as conflation of copyright with patents or plagiarism persists in any age group. 1Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?”

Perhaps the confusion between copyright infringement and plagiarism — issues that are distinct but overlap — isn’t really a big deal. Of greater concern is the increased number of the younger generation who see nothing wrong with copyright infringement or plagiarism. As Jonathan Bailey has pointed out, the number of students who view plagiarism as “serious cheating” has decreased in the past decade.

Along with the basics, confusion over copyright specifics is prevalent in younger generations too. Again, this shouldn’t come as a surprise since such confusion is prevalent among the population as a whole. Last week, a minor scandal arose on the internet after an exchange between a writer and the editor of Cooks Source magazine after the writer discovered the magazine had reprinted one of her articles without permission. 2Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010. In a rather condescending reply, the editor, although claiming over three decades experience in the publishing industry, incorrectly told the author that “the web is considered ‘public domain.'”

The authors present several ideas for increasing copyright literacy among “Digital Natives.” One of the challenges of copyright education is the disconnect between the law and what is considered socially acceptable behavior. The ease with which content can be distributed and accessed online, even on legitimate services like YouTube adds to the challenge of helping young internet users distinguish between what types of uses are allowed and what types of uses are not.

However, the authors note that the focus of any copyright curriculum should not lie solely on copyright as mere restrictions and prohibitions. More important is educating students about copyright’s goals and purposes of encouraging creativity and art. Showing how copyright protection helps artists, and how “Digital Natives” can work within the copyright system to become the next generation of creators, will achieve more than presenting copyright as a set of rules aimed at punishing young people.

Although the authors of this article show some skepticism toward industry copyright education efforts, I’d like to point them out. The RIAA has a section devoted to tools for educators on its web site, with different programs for elementary, high school, and university students. The Copyright Alliance Education Foundation presents a comprehensive array of related educational programs for teaching copyright to young people, as well as educators themselves, on its site.

I agree about the need for increased copyright literacy among young people, whatever the approach. I believe, however, as pointed out in a previous post, that there is an even greater need for increasing literacy about the law in general — and not just for young people.

References

References
↑1 Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?”
↑2 Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010.