Copyright Law and Deregulating Amateur Creativity
While reading Lessig’s recent book, Remix, I was struck by a comment in support of his argument that we should deregulate amateur creativity online. One of Lessig’s suggestions is that if content owners have too much control of a copyrighted work, they potentially suffer more damage than if they have less control, particularly in terms of reputational issues. In the context of describing Hollywood’s concern about reputation, he notes that:
“This problem comes not, paradoxically, from a lack of control. It comes from too much control. Because the law allows the copyright owner to veto use, the copyright owner must worry about misuse. The solution to that worry is less power. If the owner can’t control the use, then the misuse is not the owner’s responsibility.” (p 257)
In other words, if everyone knows that anyone in the amateur playing field is free to remix copyrighted works in any way they like then no one will be confused into thinking that Warner Brothers supports a Nazi spin on Bugs Bunny.
I wonder if this oversimplifies some of the reputational issues, though. In countries with moral rights, particularly those that don’t allow waiver of those rights, the concern is not just that audiences might be confused about the source of a remixed work. Rather, it is that creators (as distinct from copyright owners of course) should have some say in how their works are used both for purposes of attribution and integrity. There is more to the equation than simple consumer confusion.
Additionally, given that courts are so prepared to find pretty much anything happening online as “commercial conduct”, I wonder if Lessig’s theory has a practical limitation in that he would exempt all non-commercial remixes of copyright work from a copyright infringement action. However, this assumes that courts will not readily find an amateur remix to have commercial elements eg if distributed alongside click-through ads online and thus potentially encroaching on the copyright holder’s market to make money from click-through ads related to the placement of the work online.
In other words, I think there may be a problem here with the boundaries between trademark law and copyright law once one starts talking about exempting amateur remixes from the scope of copyright infringement, be it under fair use or otherwise. If the concern is with reputation, isn’t there a significant possibility that the whole debate would move to trademark law and/or moral rights law (in countries where those rights are available and relevant)? Wouldn’t copyright holders simply start asserting trademarks in specific aspects of the work that are used in the remix, and then claiming infringement (where there is a commercial purpose and perhaps a claim for “initial interest confusion”) or dilution (where there is no likelihood of consumer confusion any way you slice it)?
I’m not necessarily disagreeing with where Lessig is coming from, and I do think there should be clearer scope for amateur creativity online, but I wonder if the analysis in Remix isn’t a little overly simplistic. In particular, I wonder if a better way to look at it is that raised by Jessica Litman in her recent article on Lawful Personal Use where she suggests that personal uses of copyright works may well be regarded as outside the scope of copyright law altogether. This perhaps avoids the difficult distinctions between what is “commercial” and “noncommercial” use online. However, even Litman isn’t talking about trademark law so that could still be a problem in the online context if coypright is pared back by the courts.