Unfortunately Lawrence Lessig doesn’t make the rules, but we are lucky we have him to fight for us. Last week he published five recommended changes to the copyright law designed to help those who create to continue to create. When the law starts to do the opposite of what it was intended you have to wonder.
Deregulate amateur remix: We need to restore a copyright law that leaves “amateur creativity” free from regulation. Before the 20th century, this culture flourished. The 21st century could see its return. Digital technologies have democratized the ability to create and re-create the culture around us. Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix.
What happens when others profit from this creativity? Then a line has been crossed, and the remixed artists plainly ought to be paid — at least where payment is feasible. If a parent has remixed photos of his kid with a song by Gilberto Gil (as I have, many times), then when YouTube makes the amateur remix publicly available, some compensation to Mr. Gil is appropriate — just as, for example, when a community playhouse lets neighbors put on a performance consisting of a series of songs sung by neighbors, the public performance of those songs triggers a copyright obligation (usually covered by a blanket license issued to the community playhouse). There are plenty of models within the copyright law for assuring that payment. We need to be as creative as our kids in finding a model that works.
Deregulate “the copy”: Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a “copy,” that makes as much sense as regulating breathing. The law should also give up its obsession with “the copy,” and focus instead on uses — like public distributions of copyrighted work — that connect directly to the economic incentive copyright law was intended to foster.
Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now. Tax-code complexity regulating income is bad enough; tax-code complexity regulating speech is a First Amendment nightmare.
Restore efficiency: Copyright is the most inefficient property system known to man. Now that technology makes it trivial, we should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term. It should be clear who owns what, and if it isn’t, the owners should bear the burden of making it clear.
Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop “sharing.”
