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Copyright Law: Time for an Upgrade


by Glen Emerson Morris

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Comparatively speaking, protecting against shoplifting is easy for traditional merchants, they just have to make sure people pay for things on their way out. Today's Internet advertiser delivers material to potentially millions of unknown homes and offices, can't ask for it back, and then starts negotiating price, that is, if they're lucky enough to catch someone using their material.

Once again, our technology has evolved faster than our legal system. The core problem here is that virtually throughout history, ideas have always been valued less than things. As a result, it's easier to protect things than ideas, and unfortunately for the advertising industry, most of its output is ideas.

Under our legal system, a person caught stealing a ten cent candy bar is likely to face more legal problems than a person who appropriates use of a photograph that may have cost thousands to shoot. Why? Because copyright violations are generally considered to be civil cases, not criminal.

Under civil law the cost of legal action is paid for by the plaintiff. In practice, legal action is usually funded by the plaintiff's lawyer, since, given the expense involved, most cases proceed on a contingency fee basis.

Current copyright law does work reasonably well when there are large sums of money involved. In the case of a best-selling book appropriated from its writer by a publishing house, or another writer, the potential winnings would be enough to attract lawyers by the dozen on a contingency fee basis.

The problem is that most copyright violations involve relatively inexpensive material, so the cost of taking action usually exceeds any potential damage awards.

In some ways, current law is actually making things worse. One of the most common types of copyright violation involves using parts of photos in collages. The finished collage may be made up of dozens, perhaps hundreds, of bits of other copyright protected photographs, and each one represents a different plaintiff. Dividing the potential damages that might be returned by a hundred, or even a dozen, plaintiffs doesn't leave enough to attract a paralegal, let alone a qualified and competent lawyer. Under the current system, the more images a person wrongfully uses, the less likely they are to attract a major lawsuit.

Recently, major corporations have gotten around the copyright enforcement expense by having special laws passed, which in effect, reclassify violation of their particular copyrights as theft. This explains why videos have the FBI warning at the beginning. This approach is reasonable, but only to a point; it's really socializing the cost of copyright protection, starting--and stopping--with those who need it the least. The rest of the business community is left to fend for itself.

If ideas deserve the same protection as things, or the phrase "just and equal protection" has any meaning, a photographer should be afforded the same protection of his or her work as a Hollywood studio is of theirs. Leaving this issue to civil courts just isn't going to work any longer, ideas have become far too valuable. Copyright violations should be seen as a what they are, a form of theft.

Unfortunately, the only copyright law reform likely in the future is due to the Mickey Mouse factor. Under current law, the character Mickey Mouse will become public domain within the lives of most people alive today. As a political reality, Mickey Mouse has as much chance of becoming public domain as Ft. Knox. Long before Mickey goes PD, copyright law will be modified to take into account the lifespan of corporations. Our industry needs more help than this reform measure is likely to offer.

Technology isn't likely to offer much help either, other than make it possible to find instances of copyright violations on the Internet, and with luck, identify those responsible. It's nice to know if your house is on fire, but if you can't afford to call the fire department, it may be a moot point.

Rejecting the Internet as a technology isn't a viable solution either, or an appropriate one. The Internet may have made the wholesale theft of intellectual property possible, but the problem isn't with the Internet, it's with an outmoded and overly politicized legal system that can't be bothered to defend the rights of the average citizen, or the average business. Treating ideas, and those who create them, as a second class commodity is a dubious strategy for any economy, especially one on the leading edge of the Information Age.

Things aren't going to get any better until intellectual property created by the average business, and the average citizen, is given the same care and protection as that of our largest corporations. We live in a competitive world, and if other countries are able to grow and develop the ideas of their citizens better, we will have a very difficult time competing with them, economically or militarily.

Changing our current system will be a long, difficult, and expensive undertaking, but we don't have much choice. Current law is costing the advertising industry millions of dollars yearly, and the only reform on the horizon is Mickey Mouse. We can't downgrade our technology; our only option is to upgrade our rights.

Copyright 1994 - 2010 by Glen Emerson Morris All Rights Reserved

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