Copyright and Fair Use are the heart of human creativity
I have just published Freedom of Expression and Copyright, The Foundations of All liberties in two volumes. First my research, analysis and discussion of documents ranging from 1100 to 2016 in a Kindle Book (manuscript of 210 pages, 154,663 words) available in the Kindle Stores of all Amazon sites. Second all the documents from 1100 to 2016 (manuscript of 550 pages, 442,835 words) available in free open access at https://www.academia.edu/31829015/Freedom_of_Expression_and_Copyright_The_Foundations_of_All_Liberties. The documents are necessary to read and follow the discussion but these documents have to be provided in full and that cannot be done easily in Fair Use within a commercial publication. So I decided to take them out of the commercial volume so that they are just a collection of documents anyway available on the Internet for most of them in open access. I uploaded that collection of documents on Academia.edu because it is a research site and the 1976 US Copyright Act that defines fair use states that research is an exemption. It is obvious the documents must be provided in full for the discussion to have any sense, and the whole file can be downloaded from Academia.edu, which makes it easier to use. Only my own dissertation is commercially published.
This being said let me enter the real object of this article: Copyright, Fair Use and human creativity. I will essentially compare the situation in the US and in Europe today.
In the US, the main Intellectual Property market both in industrial intellectual property and in artistic intellectual property in the world, at times highly dominant in both fields, this domain is covered by the famous Article I, Section 8, Clause 8 of the US Constitution. Industrial Intellectual Property is covered by patents. I will not consider this case. Artistic Intellectual Property, including a lot of programming software, is covered by Copyright. In this field there are two possibilities. The copyright holder is a corporation and the work concerned is a work for hire, meaning the author of the work was a salaried employee of the corporation at the time and thus all his authorship is transferred to the corporation. This is particularly important in computing science and technology but also in the cinema, music and audio-visual art, including video games. Normally the moral rights of the authors are supposed to be respected and in films, music, audio-visual works and video games the names of authors and artists in general are supposed to be provided in the credits of the product. We can note at once that software programming is an exception since we generally do not know the programmers who produced the software we are using. In all other fields from cinema to TV, radio, stage production, etc., and publication of course, royalties are attached to the work of these authors. But I would like to concentrate on copyright and fair use when attached to a particular physical person, an author or a composer, or whatever other profession. What I am going to say though is valid for works for fire too, in spite of the fact that the copyright holder is a corporation, like Walt Disney to take a famous case that ended up in the US Supreme Court.
Any work produced by an author (generic meaning) is copyrighted under the name of the author (physical person or corporate entity) when it is first published. That has been now automatic and has not required any specific procedure from the author nor any renewing since the passing of the 1976 US Copyright Act that also defined Fair Use. But to understand where this Fair Use comes from we have to go back to the invention of this copyright, the Statute of Anne. Queen Anne is the person who introduced this copyright under the sole responsibility and ownership of the author, hence terminating the censorship copyright invented by Queen Mary 1st (1557) and confirmed by Queen Elizabeth 1st (1559). That censorship was to continue in various forms all along the 17th century under the Stuarts, the Commonwealth and the Restoration. The copyright of the Statute of Anne (1710) introduced total freedom to the authors and the results were immediate: England finally caught up with the continent as for the printing quality, the printing of engravings and etchings with names like Hogarth that could compete with German, Dutch or Italian engravers. England went even one step further since they also invented the free press, which enabled political parties to thrive and to restructure themselves into the political system Great Britain still has, a parliamentary monarchy with two houses and elections run mostly by people who are registered as members of a limited number of political parties.
Yet The House of Lords in 1774 in a famous case, Donaldson versus Beckett, blocked the English copyright in an exclusively commercial if not mercantile practice. They discussed intellectual property and tried to define its nature. They stated that this intellectual property is perpetual in the author of a work as long as it is not communicated to the public. As soon as it is communicated to the public this common law intellectual property is repealed and copyright only gives the author the privilege of benefiting from this copyrighted intellectual property for a short term, fourteen years, that could be renewed, if the author was still alive, a second fourteen years. Great Britain has still not changed this decision: common law perpetual intellectual property is repealed by the first communication to any public in any way imaginable. That’s the reasoning that brought Great Britain to deciding in Parliament (Copyright Act that came into power on August 1, 1989) that all artefacts deposited or collected in any public archives of any sort cannot be in any way published (pictures, quotations from the text they may carry, etc.) till 2039. The recently discovered Roman artefacts collected when building the new fast train underground line in London and deposited in some public archives are thus blocked till 2039 though they are from the third century. In England it is impossible to use any artefact or any published text without the agreement of the copyright holder of the said artefact or published text, and by published it is meant communicated to one person other than the author: a postcard to a member of one’s family is such a publication and the simple entrusting of notes written by an author to a public library is also such a publication. There is no fair use in Great Britain, in English copyright. That leads to absolute absurdity. Research is blocked. Poetry is blocked. Literature is blocked, not to mention audio-visual arts (cinema, TV, radio, etc.). The British reach on this question total amnesia because, to quote only one example, The Waste Land by T.S. Eliot in its Faber and Faber edition provides in notes all the borrowing of little pieces building up the masterpiece this poem is. The most recent Faber and Faber edition of the poem has 56 pages altogether but several hundreds of notes providing the “borrowings” and “influences” that can be found in the poem. Nowadays a poem like this one could not be composed because of this very borrowing procedure, or it would take a lot of money and a good two years to manage to get all the authorizations, and even so with no guarantee as for the results since the concerned authors may not be found, may be found and refuse to answer, may be found and request an unreasonable fee and finally may be found and accept to grant free use (or cheap use) of the concerned tit bits. More at http://www.nationalarchives.gov.uk/documents/information-management/crown-copyright-flowchart.pdf, accessed March 16, 2017.
The American system did not repeal perpetual common law copyright which survives in all works after their being published or produced, their being communicated to the public. And it is this very surviving common law copyright that is the very basis of fair use which is very clear as for the definition of moral rights since the “value” of the quoted work, or its author, must not be impaired by the concerned use, and not only the commercial value. But a general exemption is provided for research, parody, satire and various other legitimate uses that cannot exist if the original work is not quoted or even imitated, even plagiarized, in order to produce a satire or a humorous work. Saturday Night Live parody and satire of President Trump and his team members enter this category and as such cannot be prosecuted as unfair use or value degrading imitation. There are limits here too, but it is more at the level of the language used that could be considered as insults or ethical attacks.
But then we have to consider the Berne convention and the World Intellectual Property Organization (WIPO) that manage at world level this very artistic Intellectual Property. We have to consider the European continent from France to Russia. There are two models: The French model of authors’ rights and the other European model of Copyright.
The standard copyright system in Europe (France excluded) is a very simple copyright definition in absolute conformity with what it is in the US, including the duration of the protection for the copyrights of the works of individual physical persons, but it systematically integrates the moral rights of the authors and the works. And these moral rights are stated as perpetual: rights, like the author’s name having to be mentioned with proper reference, etc. A strong debate is coming to an end about the reform of copyright in Europe but it amounted to nothing after all except two elements.
First there is no concept of fair use in Europe. The European Community is just defining a list of exemptions or exceptions (to use their favored words) that is growing year after year. No clear-cut criteria, no best practices in fair use, just exceptions. The concept of exception, cultural exception, was invoked by the French and President Jacques Chirac when transatlantic discussions and negotiations were envisaged to keep the whole cultural field of intellectual property out of such commercial negotiations, that are stalled right now at the initiative of the US President. The Europeans love exceptions or exemptions. There is not one single law in Europe that does not have its waiving procedure giving some bureaucrats the right and power to authorize anyone, or nearly, not to respect this or that legal obligation. This is a basic, fundamental and irrational absurdity. You can imagine the level of dissatisfaction it may produce among Europeans.
The second decision that is pending has to do with quotas of European works on TV and Radio. So far the quota was fifty percent. The French had been the strongest demanders in that field in the name of cultural diversity that cannot exist if the cultural works of every single country is not promoted in a way or another by quotas on mass media broadcasting. The French were motivated by their concept of francophonie (French language usage and countries concerned) and that goes back very far in time, back to the old colonial empire for which French was the compulsory official language. Europe made then the mistake to refuse any national (think of Brexit and then other populists in Europe who try to bring the whole world back to a patchwork of strictly autonomous national pawns) definition of cultural diversity and they only accepted to speak in terms of a linguistic definition. In most countries it will then be considered as including all the various languages spoken in the country, including the dialects of some of these languages. Then you have to set the proportion between those various languages. That explains why in some countries there are quotas of cultural works in Turkish (which is not a European language though Cro-Magnon 45,000 years ago spoke a Turkic language) or in Kurdish (which is an Indo-European language) or Arabic (which is a Semitic language) etc. But there is one exception. France of course. France is the only country that states in its constitution that French is the official language of the Republic. It is the only or one rare European country that has not integrated local (regional or communitarian) languages in its basic law (constitution or some statute law of some kind). There is only a vague education law that authorizes the use and teaching of regional languages (all other communitarian languages are foreign languages and have to be treated as such, even when you have several million people speaking some of these languages in France like Arabic or Kabyle). In France then you have the French (tolerance for French speaking Canadians or Belgians or Swiss) artists who speak and work in French and they can be included in the quotas, and all other French non-French-speaking artists who are not included in the quotas: thus all the rock musicians of any sort who sing in English, or any other language, all the traditional regional music that sings in local dialects or regional languages (Breton, Occitan, Alsatian, Picard, etc.) are excluded from the quotas. They can be programmed but out of the French quota, hence in the foreign-non-French quota. But a revolution is coming in Brussels: these quotas will be reduced from 50% down to 10% or maybe 20%. French French-speaking artists demand 30% but they won’t get it. This is capital for television since then foreign films, and first of all American films will have a better coverage and presence on European televisions. The stake is enormous since it means TV channels will enter something close to a market economy since they will be able to broadcast more of what their audience likes and wants. That does not mean the best or even better programs will win, but freedom of expression must also recognize the freedom of any member of the public to listen to and watch what they want and not what some selective panel wants them to listen to and watch. Anyway with streaming, VOD and DVDs TV channels are becoming obsolete. There is nothing you like tonight? Never mind get VOD or a DVD.
But we have to add one more thing about Europe: The French case.
The French are fundamentalists as for authors’ rights: They refuse the term copyright. They refuse the concept or practice of fair use. Moral rights are inalienable and these moral rights include the right for the author or his heirs (copyright holders after the author’s death for 70 years) to refuse any new publication, any adaptation for the theater or the cinema, any quotation beyond something like 15 lines, and mind you it is 15 lines altogether, not 15 lines per quotation and the possibility to have four or five quotations of 15 lines each. There is one exception for high school and university term tests at all levels: you can provide the candidates with a quotation that can reach something like 30 lines as the subject of such a test. The Grammar book I have totally published on Academia.edu (https://www.academia.edu/7748673/COURS_COMPLET_DE_GRAMMAIRE_ANGLAISE_AVEC_EXERCICES_CORRIG%C3%89S) was refused by a Parisian publisher because it was based on a certain number of literary authors of the twentieth century, which implied that each chapter having essentially one author as for the source of examples and quotations, the university textbook would have had more than the famous 15 lines per author (altogether more than 30 authors). The textbook was first published on the server of Université de Paris 1 Panthéon Sorbonne for the students in free open access. That was of course a provocation, but since most authors quoted in the book were American, I implemented a clause of the Berne Convention that says the copyright protection of a work is that of the country in which it is initially copyrighted. Since Saul Bellow is American, he is covered by American copyright and thus by fair use. You have here a typical situation when French authors’ rights in their narrow understanding is a real blockage to research and creation. But the copyright holders, like the authors whose heirs they are, can even destroy a work if so they want or modify it at will (though a recent case of an old poster of an old film by Jacques Tati was censored at first with the agreement of the copyright holders, but a court decision requested the original poster to be reinstated, but this is a unique case, maybe the only one of the sort). Here of course we reach the acme of not even absurdity but plain intellectual deficiency.
To conclude with another absurd note coming from French authors’ rights and other derivative rights. The world creation by Pierre Boulez of Berg’s opera Lulu in its completed format after the death of the composer and his widow who had refused the work to be completed, this said world creation in 1979 after completion by Friedrich Cerha is still not available in DVD format. A full video capture of it was of course done. The music recording was published in CDs since there was no objection among the musicians and singers. But the DVD is blocked in the Opera of Paris where it was created and the Opera does not want to say by whom. It could not be by the stage director, Patrice Chéreau. So it has to come from one of the decorators or technicians who are considered as having a creative role and as such can block the whole video. We thus can only get a later capture of this production in Wien when the same production was produced but this time outside the French authors’ rights territory.
Since I have been unionized in the Syndicat National des Auteurs et Compositeurs (SNAC) in Paris since 1976, and since I have had a seat on the board of Councilors for about the same time, since I have been their deputy treasurer for something like five years until recently, I am often asked how I can survive in such a system. The answer is simple: we are living in a global and vastly virtual world. If the French authors’ rights system does not satisfy your expectations, then publish and work in the international global virtual world that is dominated by the American practices of Copyright and Fair Use. I have just published my research on the subject that way in order to help as many people as possible to understand that intellectual property is also a market place and a market economy and when an American studio coproduces a film with a French producer, what is the copyright of the work, French or American? That’s an open question. The French publisher Hachette has opened a fully autonomous branch in New York: all French researchers who can write English or be translated definitely have a fair interest to be published in New York by Hachette because they can thus escape another mistake of the European Community: The European bureaucrats still have the plan to force all research that has been financed by or benefited from, with no mention of any amount, public money to be published in free open access, including all the experimental data and research notes. Europeans at times love committing suicide, or at least shooting a bazooka “cartridge” in their foot or shouldn’t it be feet? Anyone sane is for open innovation but open innovation has nothing to do with this European project since then any research that could not be patented would be given free to anyone who wants it. Scientific publishers would die and scientists and researchers who work within the copyright field would be dispossessed. And they wonder why there is some discontent in Europe. Who is they? But everyone of course.
Dr. Jacques COULARDEAU