Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. A long-time advocate for copyright reform and information freedom, he is the founder and architect of Creative Commons, a non-profit organization dedicated to grassroots copyright reform through the means of “provid[ing] free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry.” Prof. Lessig is also a founder of the Electronic Freedom Foundation, a nonprofit organization which advocates for the rights of users of digital media. He is an in-demand speaker and writer on the topics of Constitutional law, contracts, digital rights, and cyberspace law.
I’m fundamentally in favor – pro copyright. The important thing to remember though is that there’s no such thing as copyright that has remained fixed and constant over the last 200 years. Instead it’s radically changed as technologies have changed and as the industries have changed. So what I’m in favor of is copyright that, like it’s history, changes and technologies require a different mix of rights. And so, I’m an opponent to copyright built for a different age, right? I don’t think copyright built for the analog world makes sense in the digital world. Now, unlike some, my response to that is not to say, “Therefore abolish copyright.” My response is to say, “Let’s make copyright make sense for the digital world.”
Well, the obvious one for me is the duration of copyright, which it seems to me has far exceeded any possible rational justification and it has exceeded it not because people are trying to create more incentives to artists to create, but instead because they’re trying to make sure that old creativity doesn’t pass into the public domain and they loose the opportunity to profit from it. So that’s an obvious one.
But the less obvious ones that I think are actually more likely to be changed would, first of all, the recognized, the totally unnecessary regulation of copyright in the context of non-commercial, derivative works. So you have an explosion of kids, for example, using the internet to produce all sorts of fantastically creative derivative works. These don’t compete with the artist’s original work at all. They’re demonstrating the creative potential of these kids and the technology and they’re being shared, not in a commercial context where people are selling it, but just in the way that you share jokes that you might make up about a television show. There’s not reason for copyright to be regulating that. And so, one simple change would be to just restrict the derivative rights to commercial derivative rights not non-commercial derivative rights.
Another question to think about is whether it makes sense for copyright to be regulating copies. That sounds a little bit counterintuitive, but for most of the history of copyright in the United States, copyright did not grant copyright owners the exclusive right to copy. It granted copyright owners the exclusive right to do things like distribute their commercially or engage in commercial derivative rights, but not copy. That was added to the law in 1909. Many think, really, as a sort of drafting mistake. That it wasn’t proper to refer to what the law was regulating as regulating copies, but that’s what it did. And when it was added, what it basically said was that the law of copyright would expand as the technologies for copying became more pervasive.
Now, again, I think until digital technologies came along, that was probably a fine proxy for regulating commercial activity, right? Because the only people who had printing presses were commercial publishers and so it made sense to regulate commercial publishers in the context of copyright. But now that basically everybody who has a computer constantly engages in copying because there’s no way to use creative work on a digital network without producing a copy, then I think it raises the question whether we shouldn’t be rethinking the fact that copyright regulates copies. And instead of regulating every copy through copyright, we might think about regulating commercial distribution or commercial exploitation, commercial derivative works. That’s the kind of activity that copyright law is properly regulating rather than just regulating every time somebody wants to make a creative use of somebody else’s creativity.
Copyright law was originally crafted imagining that there’s a relatively small number of creators out there and to the extent it’s expensive to navigate copyright law, you know, record companies and film studios and publishers would be able to bear that expense because it’s for small, commercial entities. Now the world is such that basically anybody’s a creator, anybody with a computer and access to the internet can begin to create and share their creativity. PEW just released a study that said that 57% of teenagers in the United States have produced and shared content on the internet, right? So it’s a huge number of creators and the problem is that copyright law written for the world of publishers and record labels now applies to the world of creators as in anybody who has access to the internet. And that copyright law is just too burdensome for those creators to actually be able to navigate.
So the idea of creative commons was, let’s lower the cost of the law in this process of creativity, not by telling people to ignore the law, but by making it function more cheaply and more efficiently, more invisibly to the system so that you respect the rights, but you still are free to engage in creative work that the technology of the internet is inviting people to engage in.
This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.
This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.
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