The next great Copyright Act is coming

On March 20, Register of Copyrights Maria Pallante testified before the US House of Representatives on the need to reform copyright law, currently outlined in the Copyright Act of 1976. This had been the first major update to copyright protection since 1909, but some considered it dated, even at the time. 

Artists, lawyers, musicians, historians, librarians, pirates, authors and educators knew immediately, or quickly grew to see, that intellectual property rights laws – a body of legislation of which copyright is only the most visible part – were in drastic need of overhaul. 

Concern crystallised once the Digital Millennium Copyright Act passed in 1996, a bill intended to extend traditional print publishing rights into the digital realm (and, by extension, throughout the world). 

Photocopiers, home video recorders and the internet all challenged fundamental aspects of policies originally intended to protect creative labour. But the variety of creative labour considered worthy of protection has never been scrutinised. 

“The law is showing the strain of its age,” Pallente said last week at the Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary. She said: 

“[A]uthors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated…. It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.” 

She was right. Copyright laws are a mess and need to change. The trouble has always been how. 

Limit the ‘term’ 

No one agrees on what is wrong with the legislation, a problem fuelled partially by so few understanding what it does. Copyright protects works that are said to be published: literature, music, dramatic works – as well as pictures, graphics, sculptures, films and architecture. Work intended for public display or use and created by an identifiable creator or set of creators.

Copyright does not protect the idea behind a work, but only the expression of the idea. And much to the surprise of my art-school students, the law does not mention commerce at all. It only grants authors the right to distribute their work – meaning, the right to decide whether to do so for money or not. 

An original intention of the law was to limit the term during which an author retained exclusive control of a work to foster a healthy and active public domain – a free storehouse of ideas for artists who wanted to work more closely with original materials. 

The fair use provision, too, is supposed to allow for the utilisation of copyrighted materials, but even fewer understand the range of re-uses it covers – and several big copyfights have failed to uphold it in the courts at all. 

The erosion of the public domain and the dwindling vitality of the fair use defence are both attributable to media corporations that in recent decades have exerted louder and more repetitive demands for protection of their creations, such as an extension of copyright terms. 

Whereas the original US Copyright term was 14 years – reasonable to my mind, as an author – protection currently extends 70 years past the death of the author. (I do not have kids, so this strikes me as totally ridiculous.) And that is just for mere humans: works of so-called corporate authorship are protected for 120 years after creation or 95 years after publication – whichever comes first. 

This has led to the preposterous situation where the public domain – our cultural commons – admitted no new works in 2013. It will be 2019 before any more works come under public ownership. And to make matters worse, Golan v Holder ruled last year that Congress can remove works that have already entered the public domain and place them back under private ownership. 

As a means to protect independent cultural producers, in other words, US copyrights are downright laughable. Yet the problems of copyright law in the US both extend wider and go further back than that. 

Under the Berne Convention, US copyright law is in place for US cultural production, wherever it is distributed. Signing Berne is a prerequisite to membership in the World Trade Organization, which boasts 159 member states and overseas international trade throughout most of the world. 

Media, art and entertainment are chief exports of the US – popular even if cheap or freely distributed. Even when spread illegally, narratives tend to promote conspicuous consumption, suggesting and fostering a values system that favours the corporate at every turn, not unlike the legislation itself. 

The Copyright Act of 1976, however, defined cultural production fairly narrowly, which may be having an even bigger impact on the global economic condition of over half the population of the world. 

Passed by a 96 percent male Congress, the in-place copyright law does not list cooking, quilting, or sewing as protectable, under the argument that these works are neither intended for public use nor created by single authors. They are domestic practices, often made by groups or with knowledge passed down over generations. Yet they are also traditionally feminine acts of cultural production. 

Legal frameworks 

It may be difficult to perceive how such gendered policy influences US culture today, but think about the most famous feminine figures from the great copyfights of the last few decades: Roy Orbison’s (or 2 Live Crew’s) “Pretty Woman”, maybe, or Dan DeCarlo’s character Josie (of Pussycats fame). 

Consider how often the insults hurled at romance novels, chick lit and chick flix – forms of cultural production aimed at, and often created by women – mirror those issues outlined in copyright law. 

Media created for feminine consumption is often called “derivative”, “repetitive” and “unoriginal”. Or glance through a few news stories about illegal music downloaders or freedom of speech defenders and note how men are presented – as pirates, saviours, or activists – while moms and daughters and female viewers or listeners are often presented as innocent, or witless, victims. 

In truth, studies show that women illegally download music just as frequently as men. Or more frequently. They certainly have greater economic incentive. 

Women make up 51 percent of the US population, earn 77 percent of what men earn on average, and act as CEOs for only 2 percent of Fortune 500 companies. 

Women make up 57 percent of the population living in poverty in the US, hold approximately 80 percent of jobs in the sex industry and 93 percent of those in domestic service work, two labour forces that come with low incomes and high rates of sexual or physical abuse and assault, which itself causes income losses of approximately $8m per year. 

In policymaking itself, women hold only 18 percent of congressional seats, even after the historic 2012 elections, which came 92 years after women had secured the right to vote (and a full 72 years after the right to vote was first called for.) 

The gender gap affects all of culture, but becomes most pronounced when we look more closely at who is paid – or valued – in the process of the production of that culture. 

On average, women hold only 25 percent of all content creation positions across US media and make up only 29 percent of appearances in non-fiction US-created media (such as talking heads on news shows, or being quoted as sources in newspapers, etc). 

Representations of women in the US only approach their actual population of it in fiction venues, where women make up around 52 percent of all characters, but are twice as likely as male characters to appear naked. And only a quarter of them speak. 

Cultural bias 

It is misogyny, clearly. But it has roots in a legal structure of our own design and can therefore be uprooted. Copyrights underpin vast swaths of our culture, both domestically and abroad, reflecting both a pre-existing cultural bias and propagating more of it. 

Yet while the cultural work that women do is less valuable now than the cultural work that men do, this need not continue. The gendered basis of copyright law must be inspected, considered and addressed. 

The next great Copyright Act Pallante calls for is possible, certainly: but it must value the input and practices of all cultural producers as labourers across all forms and media. The division between traditionally domestic and traditionally public works is as dated as the division between print and digital publishing and should be abandoned; the line between corporate and independent producers, however, remains clear. 

Revitalise the public domain, roll back extravagant term limits and ensure all cultural production methods are offered equal protection. US copyright sets a standard throughout the world. Let’s raise that standard. 

Anne Elizabeth Moore is a Fulbright scholar and the author of several award-winning non-fiction books, including Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity (The New Press, 2007). She teaches at the School of the Art Institute of Chicago. She held a 2012 UN Press Fellowship, does a monthly comics feature on gender and cultural production for Truthout, and contributes criticism to The New Inquiry, The Baffler, and N+1. 

Follow her on Twitter: @superanne