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One Size Doesn't Fit All: Towards a Heterogeneous System for Copyright Protection

Copyright Commentary Notes
Written by Matt Gelfand Edited by Harry Zhou Editorial Policy A major criticism of the current copyright system is the overbreadth of the protections it affords, in terms of duration, works covered, and uses covered. With the Copyright Act of 1976 and subsequent international treaties and legislation, copyright has become quasi-permanent, and breadth-limiting formalities such as notice and registration requirements have been eliminated.[1] Virtually any use of the creative expressive content in a work is subject to control by a copyright-holder,[2] and attempts to invoke the “Fair Use” exception can result in protracted legal disputes. The result is near-constant technical infringement of copyright, made bearable only by virtue of limited enforcement. These concerns about breadth highlight the fundamental balance that an intellectual property system must strike between its goals, generally related to a creator or his/her work, and the ways in which it limits use of an idea or expression by the general public or another creator. Debates about copyright law often focus on the success of the copyright system at promoting the goals to which it is directed — incentivizing creation, rewarding creators, protecting artists’ personality interests in their work, and stimulating cultural development — in the context of a modern, networked society. Among these different goals, and among a diverse set of creators, different forms of copyright protection are justified. Take breadth of protection, for example. A commentator concerned with incentives (the goal) for the creation of high-budget commercial films by movie studios (the users) might argue for a level of protection that is sufficiently strong to provide that incentive, but not so strong as to unnecessarily increase the difficulty of creating films down the line. A commentator concerned with the development of a cultural zeitgeist through the manipulation of popular symbols might argue for weak protections against derivative uses of the work, while at the same time recognizing that protections against verbatim copying provide a useful incentive to create the symbols themselves. The focus of this sort of criticism is on finding an ideal system that does the best job for a commentator’s favored goal or user. But maybe we should be asking a more fundamental question: should copyright continue to take a one-size-fits-all approach? Perhaps the differently-motivated participants in our modern society would be best served by different copyright systems altogether. For creative professionals and corporations making a substantial investment of time, resources, and/or risk in a creative enterprise, the existing system of economic rights (with exceptions for unprofitable and socially beneficial uses[3]) is at least somewhat appropriate. But for the tortured artist who considers his work to be a reflection of his own personality, a strong system of moral rights may be better. For a fame-obsessed YouTube phenom, a right of attribution alone would suffice; a computer programmer who wants her work to keep serving society, on the other hand, would prefer robust copyleft-style protections to prevent the proprietization of downstream derivative works. A blogger writing purely for the satisfaction of expressing herself might not need any protection at all! The existing copyright system does a bad job serving most of these groups. This comment begins with a description of the most well-known system of alternative rights designations: the Creative Commons (“CC”) licenses. Different CC licenses will be discussed in the context of the users who are likely to choose them and the real aims of those users. Next, some drawbacks of using the CC license system to carve different rights reservations out of the existing copyright system will be addressed. Finally, this comment will propose two solutions to the homogeneity of the existing system: a radical move to a heterogeneous copyright system, and a more modest change to the copyright registration system.[4] The Creative Commons Licenses Under the existing copyright regime, the assorted schemes described above must be carved out of a set of strong economic rights using in-personam licenses. The most well-known licensing scheme for this purpose is the Creative Commons (“CC”) license system. Creative Commons was established in 2001 by Lawrence Lessig, Hal Abelson, and Eric Eldred, with the aim of providing content creators an alternative to the strong default protections under copyright. The CC licenses allow creators to license their content to users with restrictions chosen from a menu of commonly-desired moral and economic rights reservations — for example, prohibiting derivative works or modified downstream licensing. Licensees typically receive the licensed content and the license grant directly via the Internet, often from a content repository like Wikimedia Commons, Google Books, or Flickr, without direct contact with the copyright holder. As long as the licensee complies with the terms of the rights reservations selected by the copyright holder, she is free to use and redistribute the work without further restriction. The licenses do not affect any moral or personality rights that might be associated with a work, and they expressly disclaim any modification of limits on copyright, such as fair use exceptions. The licenses also provide that the copyright holder offers downstream recipients of the work a license to the work under the same terms as the original license. Four rights reservations are provided by the CC system: by, which requires attribution; nc, which prohibits commercial uses;[5] nd, which prohibits the creation of derivative works; and sa (share-alike), which requires that derivative works be licensed under an equivalent license to the underlying work. All of the current CC licenses include the by reservation, and each of the six licenses reflects one of the six possible (logically-consistent) combinations of the remaining rights reservations. The CC licenses serve creators with diverse needs quite well. For a creator interested in gaining maximum exposure for her work in the interest of notoriety or to further her professional reputation, the CC-by license casts aside impediments to distribution while guaranteeing that credit will be given. A creator who perceives his work to be socially beneficial and who wants his work to have maximum social benefit can choose one of the ‘ShareAlike’ licenses, CC-by-sa or CC-by-nc-sa, to prevent the proprietarization of his work through the creation of derivative works. When a work is highly personal to its creator, or if its creator does not want to risk being misrepresented, its integrity can be protected using the CC-by-nd or CC-by-nc-nd licenses. Creators can expand the scope of traditional exceptions to copyright (such as fair use) to include noncommercial uses by licensing under CC-by-nc or CC-by-nc-sa. A seventh instrument, called CC0, rounds out the collection by providing a means by which to disclaim all copyright and related rights in a work; for creators interested only in the inherent rewards associated with creation, this provides a effective way to bypass the default copyright protection associated with his works. Drawbacks of the Creative Commons System While these licenses provide creators an opportunity to choose reserved rights that fit their specific needs, they suffer from their status as kludgy carve-outs from the predominant system of economics rights. Fundamentally, this limits the opportunity for creators to receive certain kinds of enhanced rights in exchange for the rights that they are giving up. For example, a creator cannot use a mere license to reach derivative works that are beyond the scope of copyright law, such as those allowed by fair use, even if the author would be willing to give up other rights in exchange.[6] Similarly, a license cannot extend the duration of copyright, even in situations like a reservation of the attribution right alone, where the license condition is not onerous and where intellectual honesty would often demand attribution in any case.[7] The other major problem with relying on licenses alone to create alternative schemes is that the default system of strong economic rights predominates because of psychological predispositions toward the default, the effort involved in choosing a license, and the lack of a central catalog for recording license grants to the public. The tendency to choose default choices has been recognized and exploited to benefit the public in such domains as retirement saving and public health; in the copyright domain, however, it operates to remove the vast majority of creative works from the public domain.[8] Except for creators who publish using mechanisms that offer license designation (such as Flickr), publicizing one’s choice of a CC license requires an additional step in the publishing process. The lack of a centralized registry for license designations exacerbates this problem, making it difficult for potential users of CC-licensed works to find and license those works. Although a potential licensee could separately contact the creator and attempt to negotiate a license directly, this would represent a transaction cost, and such an effort is rendered particularly difficult in the context of Internet-published works, in which creators are often identified by an alias.[9] The result of these drawbacks is that the CC license system provides an incomplete solution to the problem of copyright homogeneity. A creator must make and publicize an explicit choice to provide her work under a CC license; the licenses represent the release of a subset of copyright rights without any rights gained in return; and there is no central registry for potential users to consult in order to determine the license status of a work. As a result, the primary advantage of copyright heterogeneity — a copyright system that better serves diverse groups of creators and conflicting policy aims — is not fully realized through the CC licenses. The remainder of this comment discusses two alternative proposals that would get us closer to a genuinely heterogeneous copyright system. A Radical Proposal This Comment’s first proposed solution is a wholesale restructuring of the copyright system to provide a fixed menu of schemes from which creators can choose. Each scheme would represent a different package of rights, and each right within a scheme would be assigned an appropriate duration. The schemes would be designed for particular creation models, such as those discussed above; some would be limited to certain classes of works or certain classes of creator, or both.[10] The creator’s choice from among the schemes would be required to occur within a limited time window or else the opportunity to choose a non-default scheme would be lost. Because additional rights (longer durations of protection, for example) would be offered as part of some of the non-default schemes, there would be additional incentives for choosing such a scheme. By combining the rights scheme choice process with traditional copyright registration, the uncertainty-reduction function of the return to formalities advocated by many commentators would be realized. By taking the homogeneity out of copyright law, we can address many critics’ concerns while avoiding some of the pitfalls of their proposals. Duration can be limited for classic economically-incentivized works, where extraordinary durations provide no additional incentive, but lengthened for works created by those who are concerned only with the personality benefits of continued attribution. The disentanglement of different moral rights would be enhanced by the creator’s opportunity to choose different packages of moral rights to suit her own desires. Blanket licensing schemes and widened derivative works exceptions could be thrust upon profit-maximizing creators but left out for those who choose a more moral-rights-focused package. More generally, a considerably higher percentage of creators would feel that the copyright system itself was addressing their specific needs. What independent musician wouldn’t love selecting the “Indie” package of rights on a new, friendlier “registration and rights selection” form? Naturally, any major policy proposal faces an enemy that can ignore even the best-articulated rationale: potential political inexpediency. Although this debate focuses on the balance of social benefits and harms from existing copyright law, no social benefit can come of a proposal that is never adopted. Most of the ideas advanced by copyright critics, and certainly the idea of a multi-faceted system put forward above, would require acts of Congress (and, frequently, changes to international law) to advance. It could prove difficult to overcome the opposition of the wealthy and connected groups who benefit from the current system and who have advocated for some of the very changes, such as increased duration, that have subjected the current system to such criticism.[11] The approach that I have suggested here could avoid opposition from interest groups by providing a package of rights that strongly resembles the current package of rights enjoyed by content creation giants. Particularly if these companies believe that new content will be made more available (via the alternate schemes) to be incorporated into their own works under the proposed system, they may support it. Of course, inertia alone would make any major reform a difficult proposition. A Modest Alternative Perhaps there is a way to get some of the benefits of a copyright-endorsed menu of rights schemes while taking advantage of the existing carve-out system utilized by the Creative Commons license: by merging the existing, voluntary system of copyright registration with the process by which creators designate their work as available under a particular Creative Commons license. This could potentially be achieved through the regulatory prerogative of the Copyright Office, without Congressional action. In its simplest form, such a change would involve adding an optional license designation as a step in the copyright registration process, with the government or a non-profit organization as the licensee.[12] Adding license designation to registration would provide the same sort of “nudge” as would the multiple-schemes system described above, as some authors who otherwise would not expend the effort to research and choose a Creative Commons license would take the opportunity to do so in the context of registering their work for copyright. This would increase the quantity of works available under free licenses and reduce the transaction costs of determining the conditions under which a copyright owner is willing to license her work for free. This approach would also increase the proportion of works for which the authors seek copyright registration. At present, creators who have made the choice to license their own work under a Creative Commons license often do so by publishing the work to a website that allows license designations, such as Flickr or Wikimedia Commons. Once the designation is made a part of copyright registration, these creators might shift away from disparate content aggregators toward the centralized copyright registration system, further reducing information costs. Such a shift would be facilitated if reduced fees were offered for those making a Creative Commons license designation at the time of registration.[13] An even more drastic impact could come from a more complex solution involving a partnership between the Copyright Office and the organizations that currently aggregate freely-licensed works. These organizations collect content either as part of their charitable mission (e.g., Wikimedia Commons) or because they receive a direct or indirect profit from hosting the content on behalf of the user (e.g., Flickr and YouTube), and they could easily modify their data entry forms to accommodate all of the information required as part of copyright registration. By outsourcing most or all of the work involved in copyright registration to these organizations, national copyright offices could sharply reduce user fees and the remaining fees could be paid by the organizations rather than the copyright owners. The Creative Commons licenses could be updated to make the licensee a duly-authorized agent of the author for copyright registration purposes, allowing the aggregation organizations to register copyrights in any Creative Commons-licensed work uploaded to their websites.[14] Because it would provide the opportunity for free copyright registration, this public-private partnership would bring new creators into the free licensing world and drastically reduce the difficulty of finding and licensing works from which derivatives could be produced. Conclusion Copyright law in the United States is a one-size-fits-all system of strong economic rights designed to incentivize creation and reward creators, within traditional content creation paradigms. For creators outside these traditional channels, and for other worthy policy aims, our current system performs less well. The Creative Commons licenses address this homogeneity through the mechanism of licensing, carving alternative rights schemes out of the strong economic rights provided by default. Unfortunately, these licenses suffer both from their status as a carve-out and from a tendency toward the default. This Comment has presented two proposals for adding heterogeneity to the copyright system. The first is a radical proposal that involves restructuring the system into a menu of rights schemes, from which a creator can choose. Although this proposal could successfully address both of the difficulties associated with existing some-rights-reserved licenses, it would likely prove difficult to implement. The second proposal — an integration of existing license-based solutions with the copyright system as part of the registration process — combines some of the best aspects of making copyright heterogeneity official with the relative ease of regulatory action. Especially given the ripe environment for interesting public-private partnerships presented by this second proposal, it should be investigated further.

[1] Christopher Sprigman discusses this shift in the Introduction of his article advocating for a reinvigoration of certain copyright formalities.
[2] Section 106 of the Copyright Act creates exclusive rights to reproduction, creation of derivative works, distribution, and in the case of certain classes of works, performance, display, and digital audio transmission.
[3] As with, for example, the exceptions for “fair use” and production of materials for the blind under US copyright law.
[4] The seed for these ideas comes from Sprigman’s proposal (see page 564) to incorporate Creative Commons-type designations into a reinvigorated system of copyright formalities.
[5] The nc license prohibits uses that are “primarily intended for or directed toward commercial advantage or private monetary compensation.” The appropriate boundaries of non-commercial use have been the subject of considerable study by Creative Commons, but the precise limits are subject to legal interpretation by courts.
[6] It is possible to encumber licensees with restrictions beyond the scope of copyright, if they also rely on the license to make other uses of the work that are within the scope of copyright. The Creative Commons licenses do not attempt such restrictions, but some free software licenses take this approach to restrict licensees’ exercise of patent rights, for example.
[7] This anti-plagiarism instinct was, for example, part of the justification for the “reverse passing off” claim in the Dastar case.
[8] As described above, this is the result of the elimination of formalities from the copyright system.
[9] By way of example, the author of this note has been attempting for six months to get in touch with a Wikipedia user to discuss licensing his work.
[10] The VARA, a U.S. law offering moral rights to visual artists, is similarly limited; however, these rights are granted in addition to the traditional economic rights granted by the Copyright Act, rather than as a package of rights that can be selected instead of traditional economic rights.
[11] Hence the alternative name for the Copyright Term Extension Act of 1998: The Mickey Mouse Act.
[12] The Creative Commons and similar free licenses deputize the licensee to distribute the work to downstream recipients with the guarantee of a license from the copyright owner. Issuing a license to an organization organized for the public benefit guarantees availability of the work under the originally-chosen license regardless of the future choices of the copyright owner. The availability of termination of transfer rights may frustrate this scheme, however.
[13] Because some Creative Commons licenses reduce an author’s opportunity to profit monetarily from her work, registration may prove too costly unless reduced fees are offered. In the U.S., the Copyright Act requires that fees reflect the actual costs of processing an application but provides that fees be set giving “due consideration to the objectives of the copyright system.”
[14] In fact, this could even operate retroactively because many copyright owners have licensed their work under a particular free license “or any later version.” Wikipedia was relicensed in this manner.