Copyright and Freedom of Expression Debate

• Sean Elsworthy

Copyright has been put in place to provide a fair opportunity for artists to freely express their creations whilst having their works compensated for and protected. While copyright does provide an incentive for free expression it is also a hindrance as it supresses potential artists from expressing their point of view and challenging already established works making it less an “engine for free expression” and rather an obstruction to this expression (Netanel, 2006). This quelling of expression can be seen through large companies’ control over copyright in which it allows them to hold a monopolistic grasp of the works created by popular artists, potentially preventing newer rising artists from gaining a chance at larger recognition. Creative commons on the other hand was a reaction to the contemporary state of copyright and was established in order to recognize certain rights and grant freedoms by allowing the creator to decide on the way in which their work is protected in order to combat the current atmosphere of copyright and provide a more appealing alternative, but the problems Creative Commons faces with their non-commercial licence will also be explored. Copyright could potentially be damaged further by recent trade agreements such as the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP) which threaten to criminalize the use of various works while giving large companies a larger monopoly than they already have. This essay will explore the manner in which copyright provides an incentive for expression, but also the way in which it acts as a barrier to the freedom of expression.

The current sphere of copyright allows large companies to hold a tight grip on the copyright over artists that they support by creating a means of curtailing a smaller artist’s creation in the form of desist letters to anyone who attempts to use part of the artist’s work. This can cause many new artists to give up on their aspirations (Heins, 2005). Large companies that desire to keep a monopolistic hold upon their works will often claim all possible copyright on works they own, sending out warning statements threatening fines or other punishments due to use of said work. Such statements can be found on various works that have already been in the public domain, for example, Shakespeare’s plays (Fishman, 2014). Not only on works in the public domain are potentially affected, but any works that an aspiring artist may be working from cannot be used due to the fear of prosecution from the copyright holders. Take for example, the Verve’s song “Bittersweet Symphony” released in 1997 that gained worldwide popularity. The well-known string section at the beginning of the song was taken from the Rolling Stone’s song “The Last Time”. The Verve was sued by the Rolling Stone’s manager Allen Klein (McLeod, 2005) under the claim that the Verve had used a larger portion of “The Last Time” than was considered reasonable. Regardless of how much work was placed into the song “Bittersweet Symphony” in order to differentiate it from past works and make it something original the Verve ended up forfeiting 100 percent of the royalties earned by the song as well as losing control over where and what the song could be used for.(McLeod, 2005). They have chosen not to perform the song since. This isn’t the only example of a copyright holder’s greed-driven attempt to milk money out of potential but negligible copyright infringements. The Beastie Boys too were put in a situation in which they needed to defend their work from copyright holders, spending over five hundred thousand dollars in the courts. They were sued by James W.Newton Jr who thought it was his right to have been paid for a six second use of the song “Choir” in which he believed used the “heart” of his song. The court ruled that the use of “Choir” was not substantial enough to be recognizable by an average audience allowing the Beastie Boys to avoid any further lawsuit (McLeod, 2005). The Beastie Boys still had to spend a large sum of money defending themselves clearly showing the way Copyright can be used for greed. While these are just a few examples of many, it’s clear to see how the current laws of copyright can perpetuate avarice on the part of copyright holders attempting to make large sums of money through lawsuits over negligible portions of material.

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But it doesn’t stop there. A large range of aspiring artists who are attempting to make an impression and gain a following to further fuel their artistic desires are cut short when the copyright put in place to encourage expression is in actuality cutting the expression short. Since copyright holders own full control over any works in their possession, they are as a result able to exclude any other use of the work in order to establish a “Marketable right” (Harris, 2004). As a result of this exclusive right, any individual who attempts to use anything from the work whether it be in the form of a cover, reproduction, mash-up or to simply re-perform this work often have to pay a fee (Heins, 2005). In fact, any individual who desires to use a portion of another artists work must now pay for a licence over that excerpt they are using. The court states “Get a Licence or do not sample” (McLeod, 2005). While the price will depend on the company issuing the licence, buying a licence is often the only choice left to an aspiring artist to use part of another’s work. The alternative being to run the risk of infringing copyright and being faced with huge fines or the possibility of needing to defend themselves in court which is often beyond their financial means as well as not being worth the time or effort for a small excerpt of a song or idea. Companies will often attempt to bring any infringements to a halt through the use of cease and desist letters often threatening punishments or fines. These can be sent to nearly anyone, even competitors of the company (Heins, 2005). Take down notices are not uncommon in the digital world. These request the removal of any material that is deemed as infringement under copyright law (Heins, 2005). Large companies use nearly any means at their disposal to prevent potential competition and continue an inflow of profit for the monopolistic empire that current copyright law has allowed them to create, further silencing the “engine of free expression” that copyright initially sought to create.

There are, however, modes of copyright that still offer artists the protection and compensation as well as “Free Expression” that they need to continue creating material. This also allows other aspiring artists to use their work without being slapped with enormous fees. The means of creating this copyright sphere is through Creative Commons. Creative commons is a non-profit organization that was established in 2002. It was created not to overwrite or challenge the current copyright system, but to compliment it and provide a free culture by creating a means by which artists can copyright their works more reasonably and flexibly in comparison to what the current copyright would allow. This helps deal with the issues that have arisen with overprotection (Loren, 2006). Creative Commons has clearly made an impact on the copyright sphere with around 400 million works being created under the Creative Commons licence (Cobcroft et al., 2008). It allows artists to freely distribute their work under a Creative Commons Licence of their choice with their options being the right to copy and publish. This is done regardless of whether there is attribution required, if the work can be used commercially, whether or not the work can be modified and adapted, and if the license of the work can be changed. These various modes of licencing can then be mixed and matched depending on the intentions of the artist (Commons, 2009). In turn allowing other artists to legally modify and make use of their work under the framework of “some rights reserved” (Cobcroft et al., 2008). Creative Commons has earned an extensive amount of support as millions of documents, images, film clips and audio tracks have been used under a Creative Commons licence (Cobcroft et al., 2008). Take for example a musician that composes a song and then places this song under the “sampling licence”, allowing anyone to use portions of this song in an attempt to make something new from the inspiration of the original artist (Goss, 2007). Creative Commons too moves away from the extensive period of time in which material stays under the name of the artist, in that anyone creating a work under the creative commons licence must agree to having their work enter the public domain after either fourteen or twenty-eight years (Goss, 2007). As a result of this, it opens up a number of reasons to why an artist may choose to take the Creative Commons route. It furthers the use of a number of materials whether they be educational, cultural, recreational or informational expanding the concept of free expression as many works enter the public domain for fair use. It also allows various artists, writers and publishers to release their work for free in order to generate an interest in their work and create a cult following, furthering the demand for work from these artists (Goss, 2007). It is clear then, that Creative Commons allows for an alternative free expression as opposed to the issue of overprotection that the current copyright sphere allows large companies to hold.

However, while Creative Commons does offer a number of advantages it is not without its downsides. While one of the founders of Creative Commons believes that the licences are “bulletproof”, the legitimacy of the licences and their enforceability is unclear (Goss, 2007). Since the license does not depend on any legal entity – rather it exists for the purpose in which the material was reproduced or sampled – the license specifies that it is not intended for commercial advantage making it controversial whether or not the intention or direction should be the primary focus (Hagedorn et al., 2011). Furthermore, the largest problem that is faced in terms of Creative Commons is the “non-commercial” option and the manner in which it is often inadequately understood. It is not uncommon for people to interpret what is and is not acceptable when using material licensed as non-commercial in combination with advertisement to recover from cost deficits. This makes Creative Common’s “Non-commercial” licence ambiguous as many can bend it to be compatible with their definition of how the licence is used (Hagedorn et al., 2011). In practice, this means that potential interpretations can range from allowing the use of images, graphs or other forms of data in a non-profit journal being published to banning use of the work anywhere in which money might be exchanged even if the only reason is for the recovery of costs (Harris, 2004). It is then, also important to note that these views are limited to how the work is used, and the status of people who could potentially use the work is neglected entirely. So while non-commercial licences are open to both profit and non-profit organizations, non-profit organization artists or authors are going to have rely on outside factors other than their status in the industry to decide on whether or not it’s worth using any non-commercial works (Hagedorn et al., 2011). While Creative Commons does offer a number of ways for someone to create or use something without the problematic grip of the current copyright protection laws, there are still however issues with Creative Common’s mode of expression under the ambiguous non-commercial licence.

The future of copyright and its freedom of expression is a bleak one with copyright laws such as ACTA and TPP threatening to bring in global copyright standards that will increase the grip large corporations hold over copyright by allowing a small portion of the industry to control a large amount of content. ACTA is a multinational agreement to create a new global property enforcement standard in an attempt to target the counterfeiting of goods. While the United States Supreme Court describes copyright as an “engine for free expression”, ACTA would undermine this by creating a tension between protection of copyright and that of free speech (Yu, 2011). ACTA potentially harms the freedom of expression in copyright as musicians, authors, movie makers, journalists, software developers and researchers have their freedom of expression cut short, as sampling or using any material is prohibited. This means no one can build upon the idea of another as protected ideas are held by large industries and the use of any of this material could result in fines or criminal charges. As a result of this ACTA has been heavily criticized and seen as “hostile to the public interest”. ACTA is seen this way as their policy is set as a balance between protection and access. This lies at the heart of intellectual property and as a result the implementation of ACTA would prevent potential future creations of new work ranging from video-making to journals as simply quoting a protected sentence could be seen as infringement (Flynn, 2010). Although ACTA is not in force, TPP is a proposed regional free-trade agreement that also threatens the potential for freedom of expression. This agreement appears to increase the control over material by large corporations as they lobby for stricter copyright claiming that this will enhance freedom of expression, innovation and create jobs. This however is not the case. As a result, similar to ACTA, any artists, musicians or filmmakers who wish to sample material will face legal threats even if the acquisition of the material is legal. This includes any creations that attempt to make material accessible to large crowds such as the disabled. TPP can potentially further damage the freedom of expression as it gives large corporations the ability to limit the public domain as it permits these corporations to cut off access to material which they potentially have no copyright over purely because it contains a copyrighted element. This is done rather than using copyright as protection against their works thus limiting the creation of potential works in the attempt to instantiate an anti-competitive effect (Flynn et al., 2012). Copyright is then less a “freedom of expression”. The effects of ACTA and TPP strengthening the monopoly of larger corporations by criminalizing and restricting creative material will threaten the future of creativity.

While copyright may be seen as an “engine of free expression” in which artists can express their creations freely whilst still being compensated for the work that they create, it is clear that it can also be seen as a suppression to this freedom. Large companies and corporations often have a strong grasp on the materials that they have copyright over and as a result it’s often difficult to get hold of samples or works that they need to further their creativity. Or in some cases this leads to ceasing this expression altogether. Creative Commons offers an excellent alternative to free expression, allowing artists to choose from a number of different licences giving them the means to protect their work that best suits their needs while still allowing their work to be distributed. It is not however, without its problems. This is as the non-commercial licence is ambiguous and is often up for debate in what it means in a number of different situations. There is a potential threat to copyright’s freedom of expression that are the trade agreements ACTA and TPP which give companies a broad and strong protection over material they own and potentially material that simply has copyright elements. Thus denying the use of these works in any manner preventing many forms of creation. It is clear then while copyright does create an incentive for expression, in the current sphere of copyright it does not extend itself to an “engine for free expression” with the problems it currently faces.

REFRENCE LIST

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