William Patry has recently written a fascinating book entitled Moral Panics and the Copyright Wars which should be illuminating reading for every photographer interested in copyright in the digital age. Patry, author of a leading eight-volume treatise on copyright, former copyright counsel to the House Judiciary Committee and former advisor to the Register of Copyrights is now current Senior Copyright Counsel at Google (though he presents the book as solely his “personal observations.”)
How we talk about Copyright
As the title suggests, the book is not solely about copyright and the internet, but about the manner in which we address the subject, the tone, tenor and rhetoric of the discussion. Patry characterizes today’s highly charged atmosphere as a war. This is not the first copyright war, Patry says, recounting the beginnings of copyright in the 1700’s, the struggle of Scottish booksellers against those of London, and battles over the introduction of the player piano, radio and the phonograph. Like previous wars the discussion today is characterized by an elevated hysteria, demonization, and extreme moral indignation.
“Conjuring up moral panics and folk devils occurs through metaphors casting the other side, in the case of copyright, by painting those who use works without permission as thieves, trespassers, pirates or parasites. The purported folk devils employ their own rhetorical devices, describing copyright owners as dinosaurs, Luddites and evil monopolists out to squelch freedom of expression, and out to force corporate culture down the public’s throats” p. xviii
Focusing primarily on the motion picture industry and large record labels, Patry suggests that what is really at stake here is the difficulty large entrenched industries have in adapting to new and disruptive technologies. In response to the development of the video recorder, the film industry strongly resisted home taping; the record labels similarly resisted the internet and online music downloads. Rather than develop innovative business solutions to meet customer demands, they turned to litigation “as if laws are the answer to all of their problems,” and to lobbying for expanded scope and duration of copyright protection, changes which Patry suggests are not necessarily beneficial for the public at large.
“We will never be a productive country unless we focus on those who are innovative rather than on large entertainment corporations whose defining characteristics are quixotic battles against technologies, their own customers and the very nature of capitalism as a dynamic competitive force”
Economics vs. Morals
The effort to cast copyright discussions in archetypal moral frameworks contrasts with what Patry sees as the primary economic goal of copyright: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” Article I, Section 8, Clause 8, United States Constitution. Copyright, he says, is better seen as a system of social relationships – between authors, publishers, the public and the government – whose object is to foster, as Chief Justice Hughes wrote, ” the general benefits derived by the public from the labors of authors.”
The way out of this morass, Patry suggests, is less rhetoric and a greater focus by policymakers on “effective copyright laws,” noting that “effective” does not always mean stronger copyright protection, but an overall “increase in the public good.”
Moral Panics is aimed at the intelligent layman. Scholars and attorneys may be familiar with the landmark court cases, but for me, without such training, Patry’s documentation of the evolution of copyright law and theory from the 1709 Statute of Anne to 1998 DMCA was thoroughly entertaining and illuminating. To the 200 pages of text are added 50 full pages of footnotes plus a 14 page index. Many of the referenced academic papers, District and Supreme Court rulings, laws, regulations and legislative discussions are available online, either via a link in the footnotes or through a Google search. Consequently I found myself continually distracted by reading the source materials.
Music and Film Industries
From the point of view of a photographer, one difficulty was Patry’s continual focus on the music and film industries. Certainly Sony Betamax, Napster, Grokster, Redbox and the fights about access controls and DRM are significant in the broader sense. The studios and record companies are indeed large corporate entities and are accustomed to power and control. But for the individual contributor, author or photographer, who as Patry points out, is not necessarily getting the best deal from distributors, the perspective is different.
Cases like New York Times Co. v. Tasini and Greenberg vs. National Geographic are not large corporations going after upstart companies or consumer end users, but individual photographers seeking redress from large publishers for unanticipated and unrecompensed uses. Not all cases involve overreaching by copyright holders.
Patry also, I believe, understates the technical issues brought on by the internet. Adapting to “creative disruption” and fostering innovation are important, but it isn’t just a question of adaptation to an obvious path. Sometimes there is no clear solution. Photographers, for example, have at this point little or no effective copyright protection for the vast majority of infringements; filing suit in federal court is only worthwhile in the most egregious of cases. Innovation in creative expression is one thing; innovation when the market for one’s works disappears is something quite different.
Clay Shirky has written about the wrenching transition in the newspaper industry and says it may be many years before new institutions emerge.
“To use the historical analogy … from The Printing Press as an Agent of Change, there was a long hundred years … in which people almost literally did not know what to think. The old institutions were visibly not functioning any longer, but the nation-state as a new organizing principle was not yet in place. And those were, for many people, not a great hundred years.”
For Photographers: Orphan Works and DMCA
Two other issues look different for photographers:
In discussing Orphan Works Patry quotes the US Copyright Office definition as involving “a situation where the owner of a copyrighted work cannot be identified and located by anyone who wishes to make use of the work in a manner that required the permission of the copyright owner.” He then glibly concludes “One could more accurately describe such works as willfully abandoned” and proceeds to discuss the use of language and the word “orphan.” Perhaps he is thinking mainly of books and motion pictures. But for photographs there are indeed millions and millions of currently registered, copyrighted, actively marketed photographs published online and in books and magazines where the copyright owner cannot be found. Why? Because there is no way at all to search the Copyright Office group registration deposits for specific images, and because almost all images found online lack identifying attribution or metadata.
The second item is DMCA. Patry devotes ten pages to the act and is particularly critical of the DRM and de-encryption provisions. But for photographers the most important section could be §1202 which says “No person shall, without the authority of the copyright owner or the law — (1) intentionally remove or alter any copyright management information…”
Here digital technology and the internet has indeed caused problems for creators when there are willing buyers who want to license an image and cannot find the copyright holder. And the economic interests of both, and hence the public good, can be furthered by effective copyright law and procedure.
One last critique is that Patry, try as he does to be equitable, cannot resist at times falling into overly broadbrush criticism of what he calls the “copyright industries,” lumping all copyright owners together. Not every author, wedding photographer, fabric artist or jeweler has “a woefully misguided view that copyright equals control and that control equals profits.”
In summary, Moral Panics and the Copyright Wars gives a good introduction to understanding the background and context of energetic discussions of copyright in this age. We all as photographers, along with all participants in the digital copyright wars would do well to heed the advice of the author, tone down the rhetoric, and work towards innovative solutions.