Copyright and Common Sense

In May of 1787, the top political figures of a fledgling United States met in Philadelphia to draft a Constitution. They judged artistic expression and ingenuity as important to progress and recognized that the time of the great patrons had long passed. An artist’s success, and that of an inventor, would in the future be tied to the marketplace. At the time, however, access to printing presses, for instance, was limited and there was no legal control over the dissemination of creative works–which meant that artists and inventors stood a good chance of not reaping any rewards for their talent. And so the framers of the Constitution recognized that they needed to step in  “[promoting] the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” American copyright, in short, was born


250 years later, in the digital age, art and commerce find themselves at a crossroads and so does American copyright. The framers of the constitution sought equilibrium between the rights of the creator and the need to disseminate works publicly. Yet, today copyright has evolved into a system that is mostly focused on maintaining both an artist’s and a corporation’s livelihood at the expense of the public interest.

This shift has drawn the ire of many creators, including Richard Stallman. Stallman, a computer programmer, recognized the incredible potential for software development of an open software licensing system. He created the GNU General Public License in 1989 and marked the start of the Copyleft license. When applied to a software program, such a license allows for the free distribution and modification of the software as long as the modified version is shared under the same licensing terms.

Open licensing has been a great success in the software industry, with licenses similar to Stallman’s giving birth to Mozilla’s Firefox web browser, and the Linux operating system. Inspired by this success, a group of creators and intellectual property experts, led by Harvard professor Lawrence Lessig, decided to promote open by forming a Creative Commons interest group.  Creative Common’s licenses, which are built on the idea of “some rights reserved”, as opposed to “all rights reserved”, allow the owner of a copyrighted work to design an open license based on her preferences. Licensors can control whether or not licensees can use their work commercially or as derivative works, and can require licensees to give them attribution and share the work.

Copyleft licensing has drawn criticism from the creative community too.  Notable voices here include the Recording Industry Association of America. While these licenses do limit an artists’ ability to monetize copies of their work, it must be said that a return to the old full paid model appears, since Napster, more and more out of touch with the times.  It ignores the advances brought about by technology and threatens the delicate balance between the needs of creators to make a living and the needs of the public  to access to a  creative work.

Limit Terms

Copyleft licensing is only part of the movement for copyright reform.  Other expressions of a new vision for copyright are the push for a shorter copyright term and for compulsory licensing of derivative works.

In the United States, for works created on or after January 1, 1978, copyright “endures for a term consisting of the life of the author and seventy years after the author’s death.” To put this in context, let us look to pop star Taylor Swift. One of Ms. Swift’s most popular songs, “Love Story”, was penned in 2008 when she was nineteen. “Love Story” would retain its copyright until 2139, i.e. 131 years from its creation.  Yet Ms. Swift’s life expectancy, barring a medical breakthrough, would be about 80 years. In fact, everyone alive today will be long dead before “Love Story” enters the public domain and Ms. Swift’s monopoly on its use is lost.

Consider again how long after her death the work is protected. Based on the Center for Disease Control’s life expectancy prediction of 78 years, an American would have to create a work before their ninth birthday for the pre-mortem term to be equal or longer than the post-mortem term. For personhood theory, an intellectual property theory that views a work as an extension of the author’s personality, this is anomalous:  it seems odd that someone other than the author of a work has the potential to control the work for longer than the author controlled it (and surely the elements of the author’s personality contained in the work would be greatly diluted during such a period, resulting in a work whose uses are in no way representative of its creator).

In effect, a copyright protection based on the life of the author is clearly biased toward younger creators, and presents the possibility of absurdly long copyright terms.


Among the six exclusive rights given to the owner of a copyright is the right “to prepare derivative works based upon the copyrighted work.” One of the most common derivative works is music sampling. Sampling, which was originally developed in the 1960’s and became a prominent musical technique with the rise of hip hop, is the process of taking a portion of an existing recording, known as a sample, and merging it with other samples or with an original composition. While the majority of early uses of samples went unlicensed, the landmark case of Grand Upright Music, Ltd v. Warner Bros. Records Inc. set the precedent that unlicensed sampling is in fact copyright infringement and will be prosecuted to the fullest extent of the law. To comply with copyright law, someone looking to sample must either obtain separate licenses for both the composition and the sound recording, or obtain a license for the composition and create a “sound-alike” recording. In addition to being very expensive, often to the point of being cost-prohibitive, this licensing system also allows the owner of the original work to block the creation of the work for whatever reason they choose.

To illustrate the detrimental effect that blocking the creation of a work can have, pretend for a moment that current copyright law, not patent law, governed inventions, and that the scientific community were focused entirely on personal gains instead of societal benefit. Now look to Thomas Edison who is credited as being the inventor of the incandescent light bulb, a creation that made possible all of the light-based technologies that we take for granted today. Mr. Edison invented the bulb in 1879 and died in 1931, meaning that the copyright for this invention would have lasted from 1879 until 2001. During this period, the introduction of another bulb, which can be viewed as a derivative of Edison’s bulb, would undoubtedly have reduced the market for Edison’s bulb. Given his economic interest in maintaining his bulb’s monopoly, Mr. Edison would have refused to license those derivatives, and light technologies such as the halogen lamp and light-emitting diode (LED) lamp which would not have been commercially available until 2001– a clear loss to society.

Fortunately, the scientific community does not claim that personal profits outweigh the value of societal progression. Unfortunately, many artists seem to feel that their economic success and personal image do. As a result, far too many derivative works have not come to fruition or have been forced to rely on the fair use doctrine.

The best way to address this issue is through the introduction of a compulsory license for derivative works. In a compulsory licensing system, a licensee need only inform the licensor of their intent, pay them royalties set by statute, and comply with accounting processes set by statute. Contrary to popular belief, compulsory licensing does not look to eliminate negotiated licenses, but instead to promote healthy negotiation by setting a legal minimum that a licensee can fall back to if they encounter a hostile licensor.

Critics of compulsory derivative works licensing have presented two main arguments against such a system. The first argument is essentially that an author has the moral right to decide how their work is used, and should be able to prevent it from being used in a manner that they find distasteful or have moral objections to. While most artists, and, for that matter, creators of any kind would love for their work to only be used for works they agree with, allowing them to do so prevents criticism, the allowance of which is at the cornerstone of our right to free speech. Without such a right, neither Thomas Paine’s Common Sense nor Harriet Beecher Stowe’s Uncle Tom’s Cabin would have seen the light of day.

The second argument is that it would be impossible to come up with a fair statutory rate for derivative works licenses. While it is true that it would be more difficult to determine that rate than the rates for compulsory mechanical licenses, it is far from impossible. In an article published on the Tunecore blog, Berklee’s George Howard suggests a potential payment system based on a “[a] sliding scale,” where “for a certain number of reproductions and streams, the sampler must pay the copyright holders a certain amount, and that amount increases when certain thresholds of reproductions or streams are met.”1 Though this is only one of many possibilities for a compulsory derivative licensing system, its suggestion has started a conversation around the issue, which is undoubtedly an important step towards the realization of this idea.

Prequel To A Standoff

Creative Commons has done well in bringing these so called Copyleft principles into the forefront of a discussion on copyrights. Recently, moreover, Register of Copyrights Maria Pallante called for a comprehensive review of the copyright act at a time when the Internet has greatly increased creator’s awareness of their rights and their involvement in the process of policy making. This arguably bodes well for a shortened copyright term and a compulsory derivative works license. On the other hand, there are still formidable challenges to overcome and the opposition is cash rich.

By Griffin Davis





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