Yet another reminder of how the insanity of our intellectual property laws and practices helps neither artists nor audiences*** comes this article in the Hollywood Reporter detailing how "many uses of copyrighted material in online video, including mash-ups and satire, are legal and could be endangered by new censorship practices".
How does this work? Well, basically there's the law and then there's the application of the law. That application can come in two ways-- civil and criminal. The civil portion of enforcement (lawsuits) has gotten so out of control that it is infringing on practices that are perfectly legal. This will create what is called a chilling effect... fewer people will create things closer to the borders of copyright infringement for fear of getting their pants sued off.
This reminds me a bit of kosher law, actually. I remember asking a family member who keeps kosher why the laws go so far beyond what is actually proscribed in the bible. He said to me: so let's say there's a house, and you don't want people to go in the house so you say "Hey folks, don't go in the house". Now, that might work, but just to be safe, you build a fence thirty feet around the house and say "hey folks, don't go past the fence" as a way of making certain no one goes in the house. The house is the proscriptions in the Bible, the fence is the kosher laws.
In a way that's what's happening here, but in a really bad way. The house is copyright law, the fence is the lawsuits. In order for art and creativity to flourish, we need to be willing to go as close as we can to that house (and rethink the dimensions of it) but that fence is going to get more and more dangerous as time goes on.
***Adding, for those of you who haven't read any of the stuff on IP laws and practices that I talk about on this blog (cause it's been awhile), let me explain (briefly) why I think copyright law in the United States (specifically) protects neither artists or audiences. Originally, copyright was conceived of as a way of ensuring creativity. Congress was given the ability to set copyright laws in the Constitution, "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;" In other words, the purpose of copyright was not to protect property rights of creators but rather to help encourage them to create by allowing people to make money off of their creations for a limited (originally very limited-- under 20 years) period of time.
Over time, as copyright terms have gotten longer and longer, the law has transitioned from protecting the ideas of artists to turning those ideas into property, turning creatives into proprietors and then creating a legal system to protect this property. This is (to my mind) bad for artists and for audiences. Audiences get denied the chance to experience specific pieces of art that violate IP controls (be they The Grey Album or a production of Waiting for Godot with a female Vladimir and Estragon) and artists get denied one of the vital sources of inspiration-- namely, other people's creativity. Culture doesn't exist in a vacuum, and anything "new" will draw deeply on the wellspring of the past. Creativity relies on a certain fluidity of influences and ideas. Sui Generis art is a myth.
Now, just to be clear, I don't want to do away with copyright altogether. I believe that people should be compensated for the work that they do and be able to have some control over it for a limited time etc. I just want us to have a system that makes more sense and gets us closer to the original idea of promoting the progress of science and useful arts.
For more on this, read this totally awesome essay from Jonathan Lethem in Harper's and this statement of purpose from Chuck Mee.
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