In May of this year, American Libraries published a letter I wrote about copyright education. I wrote the letter in response to an opinion piece called “The Copyright Mummies” that Melanie Schlosser, also of OSU, had written in the March issue about the harm of long copyright terms. In it, Schlosser argued that we should stop “fetishizing the artist” and recognize that today’s longer copyright terms mostly enrich large entertainment companies and the few, most successful artists, not the average creator and his or her family. She concluded with a call “to honor the creative process by ensuring a meaningful dialogue between creators—past, present, and future.”
My letter was a partial answer to this question: Given the reality of long copyright terms and my own pessimism that those terms will get shorter, how do we honor the creative process and have that meaningful dialogue? Although my answer was aimed toward librarians, it is relevant for all of us. We need to start that dialogue by knowing something about current copyright law and its impact on our lives and work.
Copyright terms are long these days (The U.S. Copyright Office has a good circular explaining the complicated laws of copyright duration), and they aren’t likely to be shortened in the foreseeable future. (See, for example, Eldred v. Ashcroft , holding that a retroactive extension of copyright terms is not unconstitutional.) Although many postulate about the desirability of going back to shorter copyright terms, long terms are the reality of the copyright world in the U.S. today.
Schlosser is correct that these long terms primarily benefit entertainment and publishing companies. They also benefit the few creators—and their heirs—who are talented, lucky, and persistent enough to make significant money from their creative work. As work stays in copyright longer, creators die and their heirs can’t be found. This problem with orphan works and the lag before work enters the public domain has an effect on the work we do in the future.
Whether or not most of us think of ourselves as artists, we are making copyrighted work all the time when we write papers, make videos for YouTube, or write blog posts. We’re also reusing copyrighted work as we do these things. We’re remixing content, quoting books and papers other people have written, trying to get permission to include a chart or diagram in a scholarly paper. Long copyright terms make all these reuses more problematic.
How do we deal with our position as creators and copyright holders? How do we decide how relate to other copyright holders? What can we do with their work legally? What do we think it is right to do ethically with another’s work? How do the norms of our professions fit in? There are a lot of thorny questions with regard to copyright, and the answers are often not clear cut. But, since we all participate in copyright, let’s start by trying to get a sense of what the law actually says and what are options are at present, and then move on to think about what we wish copyright would be. The dialogue we hold is between us and the creators of the past, present, and future, and some of that dialogue is with ourselves, as people who participate in both sides of the copyright coin.
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