June 26, 2005  ·  Lessig

So I posted a notice about the Register’s testimony about section 115. I’m in the middle of the cc-iCommons-Summit, so I didn’t have much time to say anything of substance. My post simply points again to the 1967 testimony about compulsory licenses, and it highlights the point about nondiscrimination.

From this, two highly respected (by me and many) commentators have offered a critique of my comment. Ernie and Joe Gratz both praise aspects of the Register’s proposal. They translate that praise into criticism of my comment.

I too would praise much in the Register’s proposal. She is right to identify the debilitating effects of the transaction costs in the existing system. And she should be praised for looking for new, creative ways to avoid those costs.

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say “But in determining public policy and legislative change, it is the author – and not the middlemen – whose interests should be protected.” Almost exactly right, because in my view, we should be determining not just “the author” but “the authors” — the ecology of creativity enabled by copyright’s rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling.

So I am concerned with the fact that “[n]othing” in the proposal “obligates a copyright owner to utilize a MRO, but the increased efficiency of that structure provides an incentive for them to do so, just as they have all utilized performing rights organizations.” For I’m not convinced that the decision to include rights within a MRO is solely a function of transaction costs.

That will of course invite the question — “why should composers have fewer rights than authors”? (Joe criticizes the “massive and ongoing wealth transfer from song writers to record companies.”) My answer — which I’ve blathered on about elsewhere — is that this has it backwards. The restriction on speech — which every derivative right is — should have to justify itself. And that “justification for private rights,” as libertarian law professor Richard Epstein puts it, “has to be social.” The particular difficult justification presented by this extremely odd “private right” is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure “derivative rights” — remembering again that copyright was born with no derivative rights.

So yes, I too praise Ernie’s proposal to eliminate the “copy” right within copyright. I too agree with Ernie and Joe and the Register that we need a more efficient way license online content. But there is an important freedom that neither address that I think copyright needs to address: the right (for free or under fair and nondiscriminatory terms) to build upon culture.

  • http://www.chuckivy.com Chuck Ivy

    I’m not 100% up to speed on the new proposals, but part of me wonders if they’re going in the wrong direction… I like the idea of compulsory licenses. When the copyrighted work is a song, the license gives another performer the right to reinterpret that song in their own style. I’m a big fan of cover songs, and am always fascinated by the lives they lead beyond their original performers’ vision. If anything, I think compulsory licenses should be extended to more media. If someone has a story or book, there should be one flat rate if someone else wants to make a movie of it, for instance. If a photographer has a really strong photo, a painter should be able to pay a fixed fee and recreate that work. (Note, these are all about recreations and reinterpretations, and not the wholesale reproduction of the original artists’ work. I still hold that copyright law, more than anything, needs to be about being able to control distribution. But someone else taking that idea and going somewhere else with it? Derivative works without having to negotiate each contract? Sounds like a good thing to me.

  • poptones

    If someone has a story or book, there should be one flat rate if someone else wants to make a movie of it, for instance.

    Great idea; make it even easier for Hollywood to rip off writers and other independent artists.

    A painter already can produce a painting of a photo, no negotiation needed. Haven’t you heard of Andy Warhol?

  • http://www.robmyers.org/ Rob Myers

    A painter already can produce a painting of a photo, no negotiation needed.

    Modulo fair use and transformative use. Good luck with that if it goes to court.

    Haven’t you heard of Andy Warhol?

    Haven’t you heard of the lawsuit against Warhol by the photographer he sourced his “Flowers” from?

  • http://commonsmusic.com/ Commons Music

    On an unrelated note…

    Professor Lessig, have you, perchance, seen this article that criticizes CC? If so, I’m curious if you’ll respond to it.

  • ACS

    Also on an unrelated note

    Im sure there will be a blog about this in a few minutes but I thought Id break the news.

    It appears as thorugh the SC has mirrored Australian copyright principles in Grokster:

    On June 27, 2005, the Supreme Court issued its ruling in MGM v. Grokster, ruling that the providers of software that designed to enable “file-sharing” of copyrighted works may be held liable for the copyright infringement that takes place using that software. The Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

    The decision is up and grokster is down.

    Three Blind Mice will be happy and if you are reading doesnt it feel good to be right.

    ACS

  • poptones

    Bang, you’re dead.

    What does this precedent say to the makers of guns? Guns are designed to kill and many gun makers talk of the killing power or stoppin g power of their arms.

    Never mind the copyright issues, how long until this precedent is used against gun makers? Or against carmakers who tout the performance of their cars?

    Scalia is right about one thing: “activist judges” are wrecking the Constitution of this country. About the only right enumerated on the bill of rights that hasn’t been pretty much retracted by them is the third ammendment, and I’m sure if this war keeps up Rumsfeld will find a way to swat that one down, too.