Julianna Yau’s blog

Yesterday, I attended the 2008 Grafstein Lecture in Communications at the University of Waterloo. This year’s presenter was Jessica Litman, on the topic of rethinking copyright.

The topic of rethinking copyright was exciting on its own. I have a great deal of respect for Litman’s work, so being able to attend the lecture was something I was looking forward to for several weeks.

Litman started the lecture with some background information, which was mostly “common knowledge” for anyone who has studied copyright and all of which was a precursor to the crux of her position. She reiterated the fact that many creators are trying to manage the changes in the way their work is distributed, accessed and copied with the new technologies available to us, and that the internet is putting some copyright owners out of business and creating opportunities for other copyright owners (primarily creators who wouldn’t have publishers under the old model of creation and distribution). She then reminded us that the costs of paper publishing, both historically and presently, require that much of the revenue go toward the publisher, who is an intermediary between the creator and the user.

Litman stressed the need for a reallocation of the priorities in copyright, with a focus on enhanced rights for readers of works. She reminded us that the dominant businesses in the creative industry are lobbying for change because the current copyright law does not work well for them. In particular, current US copyright law makes it very difficult to license digital copies of music.

Among the distribution problems is the one that creators often have little control over and income from their works. This, I believe, is a problem more common in creative works meant for mass distribution (e.g. literature, movies, software and music), rather than something like visual art where the work is meant to be unique and limited in its distribution.

A very interesting (and under-reported) point that Litman mentioned is that 4 years ago, the Supreme Court of Canada passed a judgement which states ““Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained“. This decision, she felt, should be giving lobbyists for user rights adequate support for their cause.

One of her great observations is that the technology for distributing/copying/publishing is overlapping with the technology for reading/watching/listening. This is where the old concepts of how people interact with creative works shifts, because the technologies create temporary and permanent copies of copyrighted works.

The following are the three ongoing problems she listed as prime examples:

• webcasting
• what falls under private copying
• law suits for secondary liability (read some of these recent posts by others for a taste of the issues)

The question Litman posed to us is where do readers, listeners and viewers fall into copyright?

One of the problems she has with current discussions on user rights is that we are rolling all users of copyrighted materials into one category: both the corporate users (e.g. Disney) and the individual readers, listeners and viewers. Note that in the Q&A which followed the lecture, someone asked where Litman would place the new breed of users, which I’ll call the creators of user-generated content. Litman replied that she would draw the line between commercial and non-commercial use. Although I tried drawing that line in the past, I’m still not certain whether that’s the correct or most accurate distinction.

Litman stressed the need to use the distinction of “readers, listeners and viewers” rather than “consumers” (because of the inherit implication that money is involved) or “enjoyers” (because the work may not necessarily be enjoyed, per se). From this point, I’m just going to use “RLV” because I’m too lazy to type “readers, listeners and viewers” every time.

To drive home the need for us to rethink copyright via user rights, Litman argued that the RLVs interact with works and thereby complete the creators’ interests. While I find this notion somewhat romantic, I do agree that the creation and existence of works seems very hollow without anyone on the receiving end. Like having a conversation with yourself, creating a work without an audience is often unfulfilling for the creator.

Litman recognizes that it’s difficult for many people to think about user rights because that’s not normally how we think about copyright. The difficulty I have with thinking about user rights is not the resistance to it, but not knowing what exactly those rights ought to be and which ones are related primarily to copyright.

Personally, I found Litman’s comments about the relationship between the creator and the RLV to be a crucial concept which needs to be explored much more, both within and outside of the realm of copyright. At the Visual Arts Summit, there was discussion of needing to connect audiences with art, and I’m now wondering how much creators have been disconnected with the people for whom they are creating/the people who interact with their creations. Litman likened the trio of creators, publishers an RLVs to an ecosystem which depends on each other, and it was unspoken that there is an imbalance in the ecoystem.

A humorous and true insight from Litman was that while we all agree that there is an imbalance in the amount of power and control allotted to the creators, distributors and RLVs, the disagreement is who has the upper hand. Each side feels that they are being cheated by the other two, and each demands for their rights to be protected. But when their interests conflict, whose rights prevail?

Throughout the lecture, the dominant thought I had was that we need to start rethinking, not copyright, but the entire sphere of creative output and its support systems. To date, most of us have been treating the problems of copyright as the result of changes in technology. But I’m starting to think that we need to see the inadequacies of current copyright law as a symptom of a much greater phenomenon: the very rel change in the way works are created, distributed and read/listened/viewed. Perhaps we can’t come to any resolutions and keep discussing unrelated issues as copyright issues, not because they are unrelated, but because we are starting from the wrong place.

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