At a symposium entitled Copyright at a Crossroads: The Impact of Mass Digitization on Copyright and Higher Education at the University of Maryland last week, the highlight was when a lawyer wielded a large knife and hacked away at celery to explain copyright. Attorney John Mitchell divided the celery, representing the bundle of rights that accompany a creative work, into two bowls. A small bowl represented the copyright holder's rights and a large bowl represented the rights of the content user. A problem happens when copyright holders use DRM to control the celery in the large bowl, because copyright holders can exploit DRM to control content users beyond the intended limitations of copyright law.
The panel concluded with the presentation of survey results, finding that those in higher education are worried that DRM has the potential to deny fair use, bypass the spirit and limitations of copyright law and protect copyrights in perpetuity because access controls will remain even after a work enters the public domain. But DRM isn't the only way that copyright holders are trying to monopolize control and grab more celery from the large bowl. Copyright holders have had success controlling their content with threats of infringement litigation and demands for huge licensing fees.
Today's Wired has an interview with the authors of “Bound By Law? Tales from the Public Domain,” a comic book for filmmakers explaining the issues they encounter with copyright law, including fair use. Professor James Boyle gives a good explanation for how fair use is diminished when filmmakers meet demands for licensing fees because it creates a market for that work. The comic is available online and worth reading even if you aren't a filmmaker. It gives a lot of good examples of copyright pitfalls that documentarians have encountered, such as the fees EMI demanded when a Rocky ringtone appeared in Mad Hot Ballroom.
The New Yorker and the Associated Press have reported that Stanford English professor Carol Shloss has filed suit against the estate of James Joyce for denying Shloss permission to use Joyce's work. D.T. Max of the New Yorker tells of the many ways that Stephen Joyce regularly denies permission to scholars or uses litigation to maintain his control over the image and work of James Joyce. Max explains,
“Stephen's primary motive has been to put a halt to work that, in his view, either violates his family's privacy or exceeds the bounds of reputable scholarship. The two-decade-long effort has also been an exercise in power–an attempt to establish his own centrality in regard to anything involving his grandfather.”
These issues are related because they are about copyright holders gaining more control and content users losing access to work, even when the use could be a fair use. The New Yorker explains a quintessential problem with fair use and the consequences:
“'fair use' has proved extremely hard to define. How many words can be quoted? From how many works? What about unpublished texts?… As a result, Joyceans are often unsure if they are violating the law, and when the estate objects they usually give in.”
If copyright holders are allowed to use DRM schemes or threats of infringement litigation and licensing fees to tightly control legitimate fair use beyond the intentions of copyright law and its exceptions, then the content users will end up with a lot less celery in their bowls. With less celery in their bowls, artists, scholars, journalists, filmmakers, etc. will have less ability to comment on our culture.