Removing the Copy from Copyright.

In my last post, I commented  that the United States needs a new copyright law, but did not know what form it could take.   Then I read chapter 12 in Litman's book Digital Copyright, in which she proposes a new form of copyright, based not on controlling all copies derived from a work  but instead on commercial exploitation.  In addition to this, she would make explicit the right for private parties to make electronic copies and to cite electronically using hyperlinks.  Most interesting to me, she would make all playing with and building on copyrighted work legal as long as there are links back to the original work the new work draws upon.   Basically, all copying would be legal if it did not pose a significant threat to the profits of the copyright holder.  Her reason for the switch ties into something I noted in my last post: copying has become a lot easier as of late. Due to the difficulty in copying up until the mid 20th century, "multiple reproduction was a chiefly commercial act" (Litman pg. 178).  Therefore it made sense to judge commercial exploitation by copy.  Now, however, copying is easily accomplished in private for one's own creativity or enjoyment, and often has nothing to do with exploitation.  Therefore, believing all copying is harming profits no longer is true.

Now, I do not know if she is correct in saying this law better captures of the spirit of copyright as intended in the constitution (not being a legal scholar),  but I find it intriguing.  In this post, I want to explore what I believe its effect would be if enacted.  I am going to do this through examining how this law would effect both  library licensing practices, as described in Lesley Ellen Harris' Licensing Digital Content and fair use as exemplified by the CONFU attempted library guidelines as described by Georgia K. Harper in the website "Copyright Crash Course" (located  here).

In terms of licensing, I think Litman's proposed law would help libraries be less scared of litigation and therefore allow them to create simpler licenses.    Reading Harris' book, it seemed to me that she was speaking to librarians who were afraid, both of the licensing process and the content owners.   After reading the first two chapters in Harris' book, I can understand that fear.  The book explains that libraries often have no permanent rights to the material they purchase, that licenses must be struck for everything, even using a photograph on a website, and that lawyers are necessary so ones library and patrons do not get screwed over. Its intimidating stuff.

Under Litman's new laws, copying an entire journal's content from another library and then offering it to your patrons would still be considered commercial infringement.  However, posting a photograph on a library's website would not require permission.  As long as the photograph on the website links back to the original location, I do not think this use would hurt the original photographer's ability to make money, and therefore would be legal.  Basically, agreements would still be needed for large scale expensive purchases, but the library would be more free to use other work in a small way.  In addition, with a clear law that gives private individuals an explicit right to copy, libraries would not need to constantly worry about having to monitor their patrons or deal with the content owners trying to infringe on their patron's privacy through electronic monitoring.  As individuals, patrons would have every right to make their own copies either electronically or print, and share them with others.  Libraries would have much more weight behind their and their patron's use of materials, and hopefully this would help licenses be less complex and librarians less fearful.

In terms of CONFU, guidelines for fair use would be hopefully become clearer and such lines as "every reasonable definition for fair use is fair game for a lawsuit"  (Harper, section 7) and the fear that inspires, would not be needed.  While wholesale copying of textbooks and then handing them out to a class would still not be fair use, as it would hurt the profits of the textbook company, the copying of articles for a small discussion group by a student would be for private use and would therefore be completely allowed (again, as far as I can tell).  Using a picture for a class Power Point with proper citation but without permission would also be fair use.  While there still would be ambiguity, I believe this would help make fair use a bit broader and a bit clearer.

So, the results, as far as I can see, would be an environment more friendly to fair use and a less full of the fear of litigation.  Of course, I fully admit I could be interpreting Litman wrong.  I seem to be rather poor at coming up with correct interpretation of the law in general.  For example,  this week I read four different court cases about copyright and fair use and I guessed wrong on every final ruling.  Good thing I am not planning on going into law. Because of my issues with law interpretation, I would be interested in hearing what others thought. Do you think my analysis of how Litman's proposal would affect library fair use and licensing is accurate, or did I miss the point entirely?