Term Paper: Digital Copyright Problem

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[. . .] Fiona Morgan, writing for Independent Weekly, claims that "copyright law has gone from promoting creativity to hindering artistic expression, thanks in part to the efforts of a few giant corporations that are sitting on billions of dollars worth of intellectual property." (ibid) The view that corporations and government bodies are using copyright to stifle free expression has been expressed by the likes of Federal Ninth Circuit Court of Appeals Judge Alex Kozinski in a recent copyright ruling, where he states that 'Culture is impossible without a rich public domain. Nothing today, and likely nothing since we tamed fire, is genuinely new. Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture'." (Ibid) In her article Morgan discusses the control of information by large corporations and companies that make freedom of expression and creativity simply too expensive. The following is a good example of this viewpoint.

Documentary filmmaking is another art form that's been up against the wall of copyright law. Take local filmmaker Brett Ingram for instance. He recently completed a documentary about cartoonist Bruce Bickford. To tell the story of the cartoonist's life, he felt it was necessary to include two archival pieces of film. A few seconds of an Alka Seltzer commercial from the 1950s featuring a cartoon character named Speedy was the first clip. "Speedy fits into the story as something that really captured Bruce's imagination early on," Ingram explains. "You kind of have to see the film to understand how it fits in with the whole mythology of his animated world." Use of the 20-second commercial footage cost $750.

An issue that lies at the heart of this debate is the Digital Millennium Copyright Act, which is dealt with extensively by Zaret. For many critics and law experts this is probably one of the most controversial examples of too much governmental control during the past few years. The DMCA was essentially intended as legislation to prevent the piracy of film, music, software and intellectual property by those who would break through digital copy protection. Since its enactment this legislation has been under attack from a number of quarters and for a myriad of reasons. The central critique is that the Act in effect limits and even prevents research and also goes against fair-right usage. Many claim that what the DMCA does is to take away many of the rights of the online consumer and creator and place it squarely in the hands of corporate publishers and copyright holders. The central point that many make is that this Act leverages the balance totally in favor of copyright holders and puts free expression, fair use, research and innovation at risk.

Both articles emphasize that copyright should also follow a trajectory of increased flexibility and understanding of the new parameters and modes of expression in the digital environment and not become more draconian and restrictive as the present legislation seems to be. One of the central criticisms of the DMCA Act lies in its anti-circumvention provisions. Many critics point out that the actual implementation of these provisions is not being carried out as Congress intended. This proviso of the Act has in fact been used to stop a wide array of legitimate activities and has resulted in a host of legal actions, counter actions and an outcry from the digital community. Essentially the provision legally discourages the creation of any technology that "circumvents" a CPS or "copyright protection system." This refers to any hardware or software that allows for the overriding of a CPS control of software or programming and digital content. Many critics have been at pains to point out that this provision amounts to a blanket ban that not only enforces the rights of copyright holders but also enforces the right of these holders to institute almost any restrictions over the use of the material that they deem fit. This definitely seems to impinge of Fair Use rights. In the light of these and many similar cases, plus the added disregard for established Fair-Use and First-Use copyright laws, many conclude that the DMCA does pose a threat to privacy and creative development in the online and digital world.

Both articles suggest ways of dealing with the problem of digital copyright. Morgan suggests that open source technology could be a way of circumventing many of the problems that digital copyright engenders.

But for those who want to escape the copyright quagmire, the Web is a venue where artists can contribute to a rich public domain and still make money off their own work. With its infinite scope, loose network of searchable data and cross-references, it's a model for the "decentralized system of creativity" that Boyle says copyright was meant to provide.

Zaret offers a broad and integrated solution, which includes a balance of the different aspects.

Everybody needs to keep their eyes on the prize,... which is a market where the Net and the devices that connect to it are valuable to people because there's lots of good stuff in there; a market where rights are basically protected for intellectual property holders, but that fair use is admitted; where there is digital rights management to reduce the incidents of serial copying; and where because of this low-distribution cost environment, you get companies willing and able to offer an enormous variety of differentiated products to people at low cost with helpful tools and assistance and add-ons that make cheap and great better than free and sort of crummy.

While the thoughts in Zaret's solution are laudable, they are in my opinion somewhat idealistic and less practical in the final analysis than Morgan's more specific ideas. Both articles however agree that the imposition of draconian copyright laws, which would restrict creative information flow, is not the correct path it take in the Digital Age. Both articles focus on the meaning and the ramifications of the new technologies and both emphasize and suggest radical changes in existing copyright laws to come to terms with contemporary reality.

Articles Used:

Zaret E., "Access Denied: The Limits of Fair Use" [online] DC Bar, February 2003 [cited May 2, 2004] Available from World Wide Web: http://www.dcbar.org/for_lawyers/washington_lawyer/february_2003/access.cfm.

And

Morgan Fiona. Copywrong: Copyright laws are stifling art, but the public domain can save us. [online] [cited May 2, 2004] Available from World Wide Web http://www.indyweek.com/durham/2003-12-03/cover.html [END OF PREVIEW]

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