August 27, 2014

Of Bundles, Bindings, and the Next Great Copyright Law | Peer to Peer Review

kevin l smith newswire Of Bundles, Bindings, and the Next Great Copyright Law | Peer to Peer ReviewEveryone who teaches copyright uses the same metaphor, I think. Copyright is a “bundle of sticks.” Actually, the metaphor is often used in the teaching of real property law as well as intellectual property like copyright. A property owner is said to have a bundle, where each “stick” represents an exclusive right. By owning a house together, for example, my wife and I hold legal title to the property and have exclusive right of possession. The holder of the mortgage, however, also holds some rights in the property (including the right of foreclosure), and if there was an outstanding repair or remodeling bill, for example, so would the unpaid contractor, in the form of a “mechanic’s lien.” With copyright, an author or creator might transfer the reproduction and distribution rights to one entity, license the work for public performance to a different entity, and retain for herself alone the right to make a translation (part of the derivative work right). Hence the notion of a bundle of sticks, which emphasizes the different rights and the opportunity to divide up those rights in diverse and creative ways.

As I say, this is a common metaphor used in teaching, and I had not really thought deeply about it until it was raised at a conference I attended a couple of weeks ago. The theme of the conference was “The Next Great Copyright Act,” and it was sponsored by the Berkeley Center for Law and Technology at the University of California, Berkeley, School of Law. Because the theme was what a new copyright law might look like, there was a lot of talk about the problems with the current law. Until then it had not occurred to me that one of those problems was the bundle of rights itself.

We think about different parts in the bundle of rights so that we can easily conceptualize the kinds of situations mentioned above, where multiple parties hold differing interests in the same property. But these divisions of a property right have also been used to craft exceptions to the rights, so that most of our copyright exceptions are tied to specific sticks in the bundle—some exceptions are for public performance but make no mention of copying, some allow distribution but do not address derivative works. The problem with this structure, I realized as I listened to the conference speakers, is that the divisions we use in the bundle, and therefore the exceptions we have built into the law, are inextricably tied to older technologies.

I can illustrate this point with several examples. One that will be familiar to many readers is the exception intended to allow the performance and display of copyrighted works in a face-to-face classroom. The exception—found in section 110(1) of the copyright law—is of course only to the performance and display rights. That was fine when a VHS tape was inserted into a player and the output shown on an attached TV screen in the classroom; only the exclusive right over performance and display was implicated in that situation, and the exception protected schools and teachers just fine. But in the digital age, classroom performances virtually always require that a copy be made; that is simply how digital technologies work. Unfortunately, the exception for such performances does not make an allowance for those temporary copies. The same is true for artworks that are now displayed in class via a computer instead of a slide projector. Teachers are left wondering whether the exceptions that were written in a very different era still provide the safe harbor they were intended to offer to education.

Another example that was mentioned at the conference was less familiar to me. Section 109, the so-called “first sale” provision of the copyright law, contains a provision (subsection c) that is supposed to allow museums to display the works in their collections. It is, therefore, an exception only to the display right, which makes sense if all art is static. But the problem now arises of whether or not museums can display audiovisual works of art, which, by their nature, according to the divisions of the law, are performed rather than displayed. It is to no one’s advantage to maintain that distinction—to allow a museum to hang paintings and display sculpture but not to allow visitors to see legally purchased works of AV art. Yet that is where the current law seems to leave us.

When we talk about recorded music, as one panel at the conference did, the situation goes from bad to worse. Because there are multiple owners of the rights in recorded music, and because each owner possesses all of the sticks in the bundle, the sale and distribution of music has become an absurd “thicket” of licenses. To some degree, at least, this proliferation of licenses is because of the artificial division of copyright into different “sticks.” Suppose that same museum decided to take a chance and “display” an audiovisual work and also wanted to play a piece of music appropriate to the theme of the exhibit while visitors watched the video art performance. How would they get permission for that musical performance? We know they would need at least three licenses: one for the public performance of the composition, another for playing the recording, and a third, called a “synchronization license,” for associating the music with the video performance. But that is still too simple, since we have not accounted for the immense difficulties of determining who owns all of the different pieces of the “sticks” and who is entitled to license each of those rights. Unfortunately, there is great uncertainty even within the industry itself about ownership of rights, especially since musical productions are often owned in “shares,” and therefore real doubt exists about whether the available licenses actually represent valid permission from the appropriate rights holders.

How could this complex problem be resolved? Clearly, there is no easy solution. To some degree, fair use provides a kind of gap-filler exception, so recognizing the problem makes the role of fair use even more important. Teachers showing digital films in class, for example, probably could assert fair use over the ephemeral copying that is necessary in order to achieve a perfectly legal performance. For education, a specific but blanket exception would also help; this was the suggestion made by professor Ruth Okediji from the University of Minnesota Law School. Blanket exceptions, focused on the activity itself rather that the details of how it is done at any given moment in the history of technology, may well be needed to overcome the growing problem of exceptions that are tied to old technology and thickets of licenses that may never offer true assurance.

To be honest, however, I left the conference wondering whether many of these proposals for reform, radical as they seem, would really be enough. The problem of exceptions that are tied to specific portions of the bundle of rights is so foundational to our copyright law that I wonder if we can, or even should, try to envision a law that is free of those concepts. Perhaps, after all, copyright law is simply a byproduct of the printing press and cannot be salvaged for a digital environment. One of the scholars who spoke did make this suggestion: professor Glenn Lunney of Tulane proposed, perhaps mostly for the sake of discussion, that we recognize that copyright is essentially an 18th-century trade regulation unfit for our era and do away with it, leaving control over the marketing of creative and academic works to be managed by private contracts and public licensing.

What will the next great copyright law look like? It depends to a large degree on what we think is great about the current copyright law. Many of the problems and proposals for reform that I listened to in Berkeley made me think that the pressure of digital technology is too much for the very notion of copyright and that the legal regime built around that concept is collapsing under the weight. The question, I think, is whether we should try to keep strengthening the structure of the law to withstand that pressure, which is the approach we have taken so far, or whether perhaps we should reduce the pressure by returning to a more lightweight set of protections. As someone pointed out during the week, our first copyright law in the United States protected simply the right to copy, publish, and vend a work. Maybe we could return to that approach by just protecting the right to exploit a work of authorship commercially and stripping away many of the protections, and hence the required exceptions, that cause so many problems for museums, schools, universities, and individuals who simply want to engage in socially beneficial activities that do not threaten the core markets for those works.

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Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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Comments

  1. Conceptually, I think that the rights can usefully be divided two bundles: the copy bundle and the distribution bundle. It seems to me that MANY of the limitations to copyright law are intended to make uses that touch only ONE bundle non-infringing. eg. the first sale doctrine makes distribution without copying non-infringing. Time shifting (permitted by the Sony v. Universal Betamax decision) makes a particular kind of copying without further distribution non-infringing.

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