Interesting discussions today in class. Some thoughts and concerns:
I find it quite reasonable to recognize copyright protections for expressions and NOT ideas. If the goal of copyright is to promote and encourage new works and the dissemination of these works, what would affording “exclusivity for a period of time” on an idea even look like? I can imagine a 1984 scenario playing out whereby thought police are invoked to enforce some statutory damages on having contemplated on an idea that had previously been contemplated on .. by anyone… It becomes absurd fast. Protections should only be granted to those individuals contributing to the commons/market place of ideas through expressions; if for no other reason than for lack of feasibility in copyright protecting “ideas”. Far be it from me to speak on the chaos of the modern patent system – perhaps in some other post since the “the tragedy of the commons” was raised and the bigger problem I see in the patent system is the tragedy of the ANTICOMMONS.
Ken raised some issues on the permissibility of mash-ups and extra contributions to the commons through such modification and additions. I like the idea of the copyright modernization act allowing for such things under fair usage; but it doesn’t escape me that such things can easily be abused.
Imagine Joanne Rowling having just finished her final sentence on what could potentially be one of the world’s best selling novel’s “Harry Potter”. Now imagine Tyler-the-lazy-jerk doing little more than copying/mashing up/modifying every iteration of the name “Harry” and any other signals that the character is male. Imagine I modify it to be Harriette. The book may still be wonderfully written (as it’s substantially the work of a good writer), but now it’s in the genre of “homoerotic magical fantasy”. Worse, I may have greater resources through piracy/internet to propagate my version of the book. I may propagate the homoerotic version of the book so adequately that consumers are more likely to associate the story in that particular niche; and Joanne Rowling as a writer within that subculture. At the very least she’ll have lost control of her work and have gained the reputation (that she didn’t intend to have) of being a great homoerotic fantasy fiction writer. At the very worst, I’ll have destroyed any chance she had of being popular amongst her original target audience – young males not interested in reading about “witch…craft…”
I use this as the example because Joanne Rowling used JK Rowling as the author’s name (not having a middle initial) to simply make it ambiguous as to whether she was female; thereby not alienating herself from the overly sexist niche of young males who might have discriminated. The connotation is irrelevant, it could just have easily been modified to be white power literature (simply make Voldemort the only black character…); it’s that the original author loses control with anyone messing with the integrity of the work. Where’d late 90s music sensation “Creed” go? Did someone by chance mash up one of their songs with something a little too Christian Rock? Gain fans from a minority subculture at the cost of everyone else … ?
Imagine someone (or a corporation hired to do such things) doing malicious mash ups to out-compete and over propagate over an authors intent… Imagine having no recourse because the legislator said it was “fair use”.
Thanks for your comments. A couple of brief thoughts.
First, the letter of the law. The “YouTube Exception” in our Copyright Act reads:
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
In your Hariette Potter example, if Rowling were able to show damages as a result of the modification, the exception would not apply.
More broadly, in a fair dealing analysis, judges have a lot of leeway when considering whether a dealing is fair or not even if it falls within one of the enumerated categories of fair dealing (research, private study, parody, satire, etc.). In your example, even if the work qualified as parody or satire, you mention destroying reputation, making a large number of copies, etc.: a court could use all of these things to arrive at a finding of infringement (i.e. no fair dealing).
And in your particular example of Rowling, because she is the author she would also be able to enforce her moral rights. In particular, the right of integrity to prevent others from altering her work in a way she disapproves of.
An interesting question may be whether moral rights of the creator (including attribution) can live beside increased user rights. In other words what what would the conflict points be. Imagine if in Snow v. Eaton Center there weren’t Santa hats physically placed on the Canada Geese, but rather a news photograph shot at such an angle that the resulting photograph (incorrectly) made it appear as if one of the Geese had a Santa hat on. What then?
Since you mention JK Rowling you may be interested in this copyright class from Harvard where Rowling’s counsel explained the reason’s she asserted her Potter copyright in a particular U.S. case, while having little or no problem with fan fiction and other works that could conceivably be characterized as “derivative”. The subtle point being that Rowling seemed to really be using copyright law to protect her moral rights (since moral rights per se are not recognized in U.S. law). See “Copyright Spring 2013: Special Event 1, The Interests of Authors” http://youtu.be/5V-aQwnNXr4