Individual creators at the center of copyright policy
Creativity is an inherently human feature – it constantly flourishes everywhere in the world and the digital age has made it easier than ever to realize that creative expression is infinitely diverse and universal all at once. Copyright seeks to foster creativity by giving creators a financial incentive to pursue and disseminate their creative expression. This goal is ultimately to the benefit of society because the possibility of making a living of one’s creative expression enables creators to spend time producing and disseminating more and/or better works for everyone to enjoy and learn from.
Faulty narratives and inaccurate depictions often tend to underlie copyright policy debates, unfortunately. For instance, the notions that copyright has lagged behind technology, that the creative community resists technological progress, and that copyright protection impairs access to knowledge are three ideas that many latch on to justify calls for weakening copyright protection. In addition, with the rise of the digital age, there has been a shift in both the numbers and functions that different parties accomplish in the digital ecosystem– search engines, online service providers, social media and distribution platforms, users, individual creators, large copyright owners, pirates, advertisers, etc. The exact role of each party is often misunderstood.
Two articles in the most recent volume of the George Mason Law Review set the record straight on many of these points. Both pieces are by members of the Copyright Alliance’s Academic Advisory Board who participated in the conference Common Ground: How Intellectual Property Unites Creators and Innovators, organized last October by the Center for the Protection of Intellectual Property at George Mason University Law School.
In Creators, Innovators, & Appropriation Mechanisms, Prof. Sean O’Connor looks closely at the argument that pits innovators and creators against each other. O’Connor explains that innovators are often creative and creators are often innovative; and both of them rely on intellectual property mechanisms to monetize their products and services. O’Connor also discusses the importance of copyright in the digital age to ensure the viability of a professional creators’ class that can make a living from pursuing and perfecting their creative talents and skills:
The issue is not whether people will create new songs and other content without appropriation mechanisms such as copyright, but whether they can produce them to the degree we (and they) would like. Quality production takes a lot more than a laptop and the free software that comes loaded on it. . . . It is about ensuring that those whose works seem to be appreciated by others can make the best possible versions of those works.
In Making Copyright Work for Creative Upstarts, Prof. Sean Pager focuses on the challenges and opportunities individual creators face from the existing copyright system in the digital age. Pager separates the ultimate goals of copyright from the goals of the copyright system. He discusses specific issues in the current copyright system that prevent individual creators from effectively leveraging their copyright in the digital age. For instance, registration burdens, prohibitive litigation costs, effective lack of remedies, etc. Pager asks policy makers to focus on legislating to create a copyright system that disseminates basic information, increases legal certainty, is user friendly and sensitive to transaction costs. Looking beyond the economic contributions of copyright, Pager also underlines the value of individual creators, in contrast to large corporate copyright owners, for cultural diversity and a healthy democracy:
Creative upstarts exemplify the artistic progress that copyright law is supposed to encourage. And if policy makers take seriously the promise of copyright laws as an incentive for creative innovation, creative upstarts therefore belong at the center of this calculus. While upstart artists may not account for the greatest economic share of creativity in dollar figures, their contributions can be measured in many other ways: in cultural diversity, in audience appreciation, in innovation, in democratic discourse, and in human flourishing.
Both of these articles contribute significantly to understanding the importance and opportunity that a healthy copyright system represents for individual creators in the digital age. Policy makers considering next steps in the copyright review process can look to these articles to get an accurate notion of who is who in the digital ecosystem and what policies will effectively serve the ultimate goal of protecting authors to the benefit of society.
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