Data Myna: Copyright and Her Limits: A Play in One Part

Copyright and Her Limits:

A Play in One Part

by Kathryn Kure

https://www.datamyna.com/2020/06/copyright-and-her-limits-play-in-one.html

This work is licensed under a Creative Commons Attribution 4.0 International License

SCENE: A large, dark, and crumbling castle. On the staircase, a woman burdened by books, with a pen behind her ear, hesitates before a closed door. Behind it, she can hear the sounds of revelry, some glasses being chinked, muted laughter and quiet conversation. It is dark outside the room, as only a single, dim lantern has been lit. Shifting the weight of the texts onto her hip, she tries to find the door-knob with her one hand. Suddenly, the door opens and there stand the Fount of All Knowledge (otherwise known as FOAK):

FOAK: Ha! You must be the new Creative Commons student!

STUDENT: Oh. You startled me. Um. Yes! How on earth did you guess?

FOAK: You are standing at the Door of Knowledge, texts in hand, looking exceedingly confused, but how else do you begin? What is it that you are seeking? I am here to help.

STUDENT: Well, first of all I am needing to understand Copyright.

FOAK: Starting with the hard bit first I see. Do they never learn? But basics are basics I suppose. Well, let me introduce you to her.

SCENE: Standing in a corner, in an old faded dress that was all the rage over three hundred years ago is a lady with her long, grey hair piled up high on her head. She is softly singing to herself and drinking sporadically from a long glass full of pale champagne.

FOAK: Copyright, meet Kathryn.

COPYRIGHT: Oooh, another student! How delightful! Life can get exceedingly tedious when you are old. It’s dreadfully boring to live through yet another pandemic, and see humanity making the same old mistakes time and again. Tell me dear what do you want to know?

STUDENT: Do you have a purpose? And if so, what is it?

COPYRIGHT: Ah! The purpose question – that’s going back some time. I was born with a specific purpose in 1710, in England, but the purpose has possibly changed over time and may no longer be entirely relevant to this more modern world. To begin with, I was born to balance the needs of the public right to knowledge with those of private rights to commerce – in terms of the latter, I conferred rights upon the creator of a work. There are two aspects that are looked into, the one is that creators must be incentivised, so that’s the utilitarian approach, whereby copyright ensures that they continue to produce more works – they get something for something or: quid pro quo. The second is that creators have a deep affinity for their work and have a moral right over it. So, the first looks at it as a property – which can be given away, while the second is more of a moral right, which is generally considered inalienable.

That’s what they say I must say anyway – but truth to tell, like the clothes I have on, I’m beginning to feel more than a little bit dated. In the old days, it was quite simple: production of the work belonged to the creator, and reproduction was extremely hard, time-consuming, expensive, and required specialist technology. It was easy to credit the creator – very few people after all have any kind of education at all (Shakespeare’s father for instance was illiterate), and virtually no one could reproduce the work unless they had that very specific technology. Even Shakespeare’s works (which pre-date me by a bit) nearly didn’t make it into print. Imagine the incalculable loss that would have been to humanity!

However, at the time of my creation, I was only supposed to last for a very, very short period of time – initially only 14 years. But as technology has become increasingly available to everyone, and everyone can copy everything so easily, and produce and reproduce and distribute so easily to everyone all over the world, so too have my “powers” also expanded – without me having any say in it to tell you the truth. It was all the fault of those fancy lawyers who bill extortionate rates on an hourly basis to huge multinational corporations. When I was born, we did not even have the concept of a Nation State. Now, Amazon is everywhere! We are an interconnected world, and with that comes great change.

STUDENT: So, do you think that your purpose is no longer relevant?

COPYRIGHT: No, I believe more than ever that I am needed but I’m not sure if people recognise the difference between the moral right of the creator to be associated with their work, and the consequences of having that copyright extended even to those creations that are effectively “orphans”, for instance -

SCENE: STAGE LEFT: Into the room, from another door entirely runs an entire entourage of boys and girls dressed very shabbily in clothes full of holes. None of them look at all healthy or plump and they are universally pale; some of them are quite transparent even, you can see the flicker of the candles and other people behind them. None of them are very lively, they all seem tired, dispirited and frankly run-down. They are followed by a large, robust man in a tight-fitting suit of fustian, who keeps trying to keep order.

STUDENT: Who are they?

FOAK: They are the orphans and their would-be caretaker is the Orphan Bill. Bill, how are you?

ORPHAN BILL: Tired, old chap. Very tired. They keep arriving and there’s naught I can do to stop it. So hard to keep everyone clothed and fed when despite my best efforts, they just keep fading. I lose more every day, and though more pour in, they are not a replacement, not one of the new ones is ever at all like those I have lost. I keep looking to find another copy of the orphans who have died but it’s rarer and rarer these days -- - everything keeps aging and they keep making copyright limits even longer, which makes my work hard and harder. Everyone wants me to keep on keeping on, yet where’s the incentive? No-one else is tackling this job, and I haven’t yet been given responsibility for them; they could be taken away from me at any moment, you know. Not all of them, but one by one.

STUDENT: (In an aside to Narrator): What’s he talking about?

FOAK: The Orphan Bill has not yet been passed into law. It’s been created to account for such orphan works. The incentive is to enable the publication of these works provided that first, a reasonable search has been done for the creator, and secondly, the attribution notes that it is and orphan work and who the originator was – this means that in the event that the creator is found and wishes to exert copyright they still can. It is hoped that this specific form of limitation to Copyright Law will enable the resuscitation of works that are published but abandoned. For the original raison d’être of Copyright is to ensure that copyright law is a natural right, similar to the logic of property. Allied to this are personality rights, works are seen to belong to or closely aligned to that of the author or creator. That person (in the old days, it was typically an individual who held copyright, as opposed to corporation – and therein may allow the difference) was believed to have certain, inalienable rights to control how those works were reproduced. It was also believed that economically unless creators are awarded for their work there would be not enough incentive for them to be produced hence the copyright laws were created to grant monopoly – but a very time-limited monopoly to the author/creator. But what happens to those works that no longer have an author who is able and willing to exert copyright? Currently, copyright (the old “All Rights Reserved”) continues to operate by default.

STUDENT: But what about the orphans?

FOAK: Yes, look at them! The law of unintended consequences coming to tragic life.

SCENE: The orphans cluster around Copyright, calling her ‘mother’ and ‘grandmother’, but she wants nothing to do with them. Against their little hands and bodies pressed up against her she recoils and says:

COPYRIGHT: My dears! I am not your mother! Or your grandmother either! (Would that I was, things would not have come to this sorry pass).

ORPHANS: But we have your name all over us! We can’t get rid of it, no matter how much we try.

ORPHAN ANNIE: And we have tried, very hard indeed, but no matter what we do, it says: “Copyright. All Rights Reserved”. We have scrubbed at it, and we have even taken a knife to it, but it keeps coming back like an unwanted tattoo undertaken one long and drunken night - it’s there forever. We don’t want it anymore, but they say it’s impossible to separate the moral right of the creator from their work, so we were branded at birth, but since abandoned. But we don’t know how to find our creators or their heirs! We have long been left to our fate. Once, we were published, but now, we are seldom to be found and even then, only in the rarest of rare book shops or other venues of art. Why aren’t you our mother?

COPYRIGHT: Dear children, I am not your mother. I am but a status, conferred to your actual mother – and which she granted to you upon your birth. I cannot take it away, only your creator can do that.

ORPHANS: They cry softly and quietly. But then they look down and see a great big light.

SCENE: The orphans press themselves against the glass, looking down into a brightly lit courtyard. In it, all manners of creations are occurring and re-occurring. The creations are duplicating themselves, then halving themselves again, contorting themselves into different shapes, cutting and twisting, reshaping and then reduplicating the new shapes. In short, it’s a mad festival of mix-up culture, with a real carnival atmosphere. There is a strong smell of caramel in the air and there is juggling, and contortions and strongly scented cinnamon hot drinks being passed around. The rich scents waft up to the cold floor of the castle on which the orphans cluster.

ORPHANS: Uncle Bill! Uncle Bill! Why can’t we join them! PLEASE!!

BILL: My darlings, that’s the PUBLIC DOMAIN. Anything can happen there.

COPYRIGHT: I can’t even visit – COPYRIGHT simply does not exist in the PUBLIC DOMAIN. I tried it once and got quite the fright as the part of me that was supposed to be in the courtyard simply disappeared in front of my very eyes. Gave me quite the turn, it did. Now I am content just to sip my champagne and wave at the crowds from above, like the Queen.

ORPHAN BILL: You see? You would have no protection at all! Why on earth would you want to go there?

ORPHANS: Well, for all the supposed protection we get here (and we do appreciate your care, but there are so many of us and only one of you), we are starving and dying and COLD. It’s not much fun being kept in a cage. Why can’t we be like them? We have no mother willing to own us. Copyright cannot claim us as she is not our Creator, but we cannot eradicate Copyright either. So what if we disappear there? We are disappearing here as it is – at least that way it will be quick – if it happens at all. What must we do so that we can be given away, and in being given away – possibly live again? Why can’t we be like those people? Pointing -

SCENE: There is a wide and well-lit staircase going down to the courtyard and standing meekly in queue is a wide variety of people, short and tall, young, and old, speaking all manner of languages and dressed in all kinds of clothes. Every now and again, a young man runs up and down the queue, checking a piece of paper in their hands, and he often moves people around in terms of their order. On the back of his black T-shirt, printed in big white lettering is spelled: LIMIT EXPIRATION. As they watch, a fight breaks out.

GERMAN WORK: This is not fair! I have been standing in this line for a long, long time – many, many years - and now this gentleman from Barbados takes precedence! This is not how things work! Lines are here for a reason. He is jumping the queue!

LIMIT: Sir, I am sorry, but Barbados recognises life plus fifty years while you as part of the EU have to wait another 20 years until you are free to join the PUBLIC DOMAIN.

BARBADOS: But why it is all the Applied Art keeps pushing through? Even those from Germany? Surely that is also not fair!

LIMIT: They only have twenty-five years of protection – performance is evaluated separately from printed works, art works, movies, and sculpture, among others.

GERMAN WORK: All these different rules! Why so many? This is very, very inefficient, I tell you!

LIMIT: Beats me, but it’s a real trouble keeping up with them all I must tell you. They have had to create a website with a map of the world (European Union, 2020; Wikipedia, 2020) on it so that I don’t make a mistake letting any of you stray into the PUBLIC DOMAIN illegally.

ORPHANS: Uncle Bill! Uncle Bill!

BILL: Yes?

ORPHANS: When do our limits expire?

BILL: I wish I knew. Some of you may even have authors still living. If so, they have a right to you. The clock only starts ticking once the creator is certified no longer living and then it’s either fifty or seventy years generally.

ORPHANS: But why are we copyrighted at all?

BILL: Sigh … because you are a tangible expression of your creator. You were fixed into a form at one stage. You are not unpublished – like her – though even she is copyrighted – but you still can exercise some exceptions she can’t -

SCENE: A young lady stands very shyly, like a wallflower, against a wall on the bottom floor, looking out of the closed window into the carnival courtyard. She clutches to her bosom a manuscript. She is looking at a young man, who goes from open window to open window, taking from various works now a bracelet or a watch, a necklace, or a shoe. He throws them into the crowd, who sing and shout with glee as they are thrown at them, then – once they are done, he gravely hands them back, still intact, to those from whom they were borrowed. As he approaches UNPUBLISHED, she shrinks back -

FAIR USE: May I borrow this manuscript?

COPYRIGHT ACT: Leave UNPUBLISHED alone! You know that borrowing from her will do great harm. It is not allowed! Verboten!

ORPHAN ANNIE: FAIR USE, can you borrow part of me?

SCENE: Defiantly, with a flick of his hair, FAIR USE takes a necklace from Orphan Annie and throws it into the crowd, where it is gleefully pounced upon and used. Little Orphan Annie grows visibly less transparent and happier. All the Orphans cluster at the window, beseeching FAIR USE to come and take something from them.

FAIR USE: That’s how it ought to be done!

STUDENT: Why is it that FAIR USE can take some parts of the works without permission from COPYRIGHT ACT?

FOAK: That’s because a small amount is generally considered fair – provided, of course it is not the heart of the work. That said, sometimes even an entire work may be considered FAIR USE … but it’s all in the details, it’s all in the details.

FAIR USE: Well, how was I supposed to know? Just because it’s hung around his neck, in the shape of a heart? And a very, very, very small heart at that!

COPYRIGHT ACT: But it’s the heart of the matter, FAIR USE! You really should know better by now, but it is case-by-case I suppose, no hard-and-fast rules for anything – even I get confused often enough – and then it’s off to the law courts with us! LIMITS has a far easier job, actually, despite all his hand-wringing and fuss-budgety approach - all he ever has to do is consult and map and a set of rules.

LIMITS: But the rules keep changing! I always have to ensure they are up-to-date!

COPYRIGHT ACT: Fair enough, fair enough. But you must admit I have to worry about all kinds of exceptions when it comes to FAIR USE. There’s just no hard-and-fast rule to apply, darn it! All I have to work with is the fact that FAIR USE is not a right, but a legal, defensible point (Center for Internet and Society, 2007). What FAIR USE has to prove is that he acted in Good Faith, and a “good faith determination means that the individual must understand the exception they are selecting, be able to articulate it, and be able to reasonably apply it to their specific situation” (Purdue University, n.d.).

STUDENT: But what’s that? (pointing - )

SCENE: All along the carnival courtyard, at floor level, there are half-oval insets with bars on them. If you look through them, you can just discern a dark, bare, and clean basement below. These basements are along three sides of the courtyard. Along the longest side, you can see many four-fingered, white gloved hands clutching onto the bars. If you look further, you can see a whole range of cartoon characters peering out wistfully at all the fun in the square. FAIR USE keeps trying to approach their outstretched hands but as soon as he approaches them, out step a set of CORPORATE BULLY BOYS who stand in his way, arms folded across their chests.

FOAK: Oh, that’s the dungeon in which the Corporate Copyrighted works are held. The one you are looking at is the DISNEY DUNGEON. It’s full of works that are in high dudgeon if you ask me. They resent being left out of all of the fun.

STUDENT: But why can’t they even come out and play – even the littlest bit?

FOAK: Blame the CORPORATE BULLY BOYS for that. They won’t even allow FAIR USE much of a chance – he’ll try to take it anyway when they are not looking, but we have discovered, they are always looking.

PUBLISHED: Here, take these pages? Please!

FAIR USE: I’ve used them ever so many times before though! What I do want though is what UNPUBLISHED is clutching to her chest.

UNPUBLISHED: I dare not, I am afraid!

COPYRIGHT ACT: Leave her alone! That’s the second time this evening you have made a pass at her. She’s not to be trifled with – you know that. UNPUBLISHED is to be left untouched – you may unwittingly do her great harm if you should take what’s offered without her creator’s consent.

ORPHANS: FAIR USE, FAIR USE! Those people in black gowns with funny square hats in the top floor are shouting down to us! Can’t we go join them? They say we can!

FAIR USE: Oh, the ACADEMICS and EDUCATIONALISTS. Which section are they from? (Squinting up towards the area).

COPYRIGHT ACT: The classroom on the left is the NON-PROFIT and the classroom on the right the FOR PROFIT domain. FAIR USE is welcome to toss you up to the NON-PROFIT, but the FOR PROFIT will need to come chat to me – hmph! Well, actually, all uses really should be cleared first, but it’s more likely to be OK if they are non-commercial – and you are all orphans anyway, aren’t you? (The orphans nod in unison to the answer).

ORPHANS: Pick me! Pick me!

COPYRIGHT ACT: (Turning to the Orphans): No, no – we need to do some further division first. Now then, which are you are novels, flights of fancy and the like and which of you are factual? Divide yourselves into two lines. Those which are more fact-based, I’ll let you go so long – but just to the non-profits, mind! And be sure not to give too much of yourselves away, just in case. I know I’m taking a chance, but what is life without a little flutter. Now then, all you novels, poems, movies and songs … we’ll have to do a little more investigation if I am to keep my job with the powers that be as you are less likely to be able to fit the definition of Fair Use even within this sector.

SCENE: The factual works take turns running into carnival cloister and being hoisted up to the NON-PROFIT ACADEMIC section, while the bean-counters in the FOR PROFIT domain start writing screeds to send down to COPYRIGHT ACT to analyse the purpose and character of the use they wish to make of the works they can see before them. They even make some claim to those which are about creative expression, figuring that it is in the interests of the public to access such works.

COPYRIGHT ACT: <Shouting up at the EDUCATIONALISTS> Remember, still you need to ensure that you take into account the nature of the work, the amount that you borrow and the commercial impact you may have on the work and ensure you do not change the value of the work in the marketplace by using it (fairly, we hope) (Center for Internet and Society, 2007).

ORPHANS: Uncle COPYRIGHT ACT! Uncle COPYRIGHT ACT! Some of us don’t fit into fact or fiction!

FAIR USE: (Rubbing his hands with glee): Well, come on then, what are you?

ORPHAN PARODY: I am a Parody, Sir!

ORPHAN PARODY: ALL of me?

FAIR USE: Why, of course, all of you! You’re a fair use of copyrighted material. Now then, do we have any News or Criticism in amongst the Orphans? If so, be off with you into the PUBLIC DOMAIN!

ORPHAN NEWS: Bye, everyone! Hope to see you in the PUBLIC DOMAIN! Now that will be NEWS!

ORPHAN Are you sure I can leave? Seems strangely deflating after all of these

CRITICISM: years of longing just to be told – in an instant – I am not Copyrighted.

COPYRIGHT ACT: ORPHAN BILL, whatever were you doing with these in your care? These are exempt from the usual copyright requirements! Talk about doing them a disservice!

ORPHAN BILL: (Mopping his brow, heavily): I know that, I know … it’s just there’s so much to do and so little time in which to do it. If you can’t copy and upload, you can’t generate a database and work out who is what work, never mind trying to track down their creator or the creator’s heirs. But I really must do better with parody and the others. But it’s hard – I try to find those which were published without notice in the years between 1923 and 1977 or where they creators did not comply with renewal but it’s not only time-consuming but often also fruitless (Duke Law: Centre forthe Study of the Public Domain, 2020) so I tend to give up before I should I’m afraid. But I tend to assume that everything is copyrighted, since it’s hard to prove otherwise.

STUDENT: Is that all the exemptions accounted for?

FOAK: Well, let’s see: Fair Use is for Education (especially if Non-Profit), Criticism, News, Parody – and also, as was explained, the various conditions under which Fair Use is acceptable. Then there is what cannot be copyrighted, such as “ideas, procedures, methods, systems, processes, concepts principles or discoveries” (United States Copyright Office, 2020), as well as short things like Titles, names and slogans, variation in typography and “mere listing of ingredients or contents” (United States Copyright Office, 2020), inter alia. Of course, you already see LIMITS setting free into the PUBLIC DOMAIN those whose copyright has lapsed because of term limits – which are considered essential to ensuring the rich cultural heritage is set free and are sent into the PUBLIC DOMAIN. Then, if a creator never complied with the criteria for copyright it belongs to the public domain – either what is not copyrighted by the creator/s

STUDENT: But I thought copyright is inherent, it cannot be given away. As soon as a unique piece of work, from art to programming, is fixed in a tangible form, it is copyrighted.

COPYRIGHT: Indeed, dearie – nowadays, but back then there were formalities. In fact, there is also a distinction between the moral right of the creator to be associated with a work (which cannot be given away), and their commercial rights which can be given away. In fact, there are still sometimes some formalities which are useful such as registering your work or even placing a Copyright © logo on the work together with the date. These processes will enhance the copyright protections. In the US, through registration, creators can enforce their exclusive rights through litigation. The © logo is not required but can be of benefit – but it cannot substitute for registration (United States Copyright Office, 2020).

STUDENT: So, the PUBLIC DOMAIN is what remains?

FOAK: But you haven’t really explained fully what’s copyrightable yet?

STUDENT: COPYRIGHT, please help me here! It’s getting really confusing. My head is starting to ache.

COPYRIGHT: Dearie, you really must drink more champagne! Copyright is given to works that are unique and fixed or tangible. They must be original and must be able to be seen or heard or experienced. The rights that are granted are called exclusive and pertain to a range of things, from rights over how their work is to be translated, adapted, copied, arranged, or publicly performed. Only the creator has the right to use the work. Those who wish to use it must enter into a commercial transaction and pay for the usage thereof. COPYRIGHT is found in the form an idea takes, not in the idea itself (Center for Internet and Society, 2007).

SCENE: Suddenly, Carnival Courtyard lights up with people singing: MANIFESTO FOR THE PUBLIC DOMAIN! (https://publicdomainmanifesto.org/) <I will not copy it out in full here but reference it>

STUDENT: So, what remains then is the PUBLIC DOMAIN?

FOAK: Not so fast. The PUBLIC DOMAIN includes everything that is not Copyrighted. But don’t forget that not every kind of intellectual endeavour or property can be copyrighted and there are other legal mechanisms whereby works can be protected.

STUDENT: <Scratching head>. Such as?

COPYRIGHT: Well, Trademark ™ for instance, or a Patent. Both of them such kill-joys really, the Terrible Twins, I call them. Busy, Busy, Busy! They always are. Never have time for a party, oh no! Such businesswomen they are. If LIMITS ever had to take on their responsibilities, he’d have a nervous breakdown within a week!

FOAK: <In an aside to STUDENT>: The Golden Arches of McDonald’s and the brand name, Coca Cola are trademarks of their respective companies. So, it protects their goods, services, and establishments (Creative Commons, 2020). The main thing is that anyone who tries to confuse the public through making use of what is effectively their branding (and thereby stealing sales from confused consumers) can be taken on legally. Trademarks serve as a differentiator for companies and are very much intertwined with their branding efforts. Patent law, on the other hand, protects new inventions whether they are a new kind of medicine or a new technology. So even though patents deal with *ideas* as it were, those who originated that new technology or are able to benefit from it, also for a time-limited period. Much research and development, for instance, goes into new medicines, and hence granting patents provide a commercial incentive for companies to fund such research over an extended period of time.

COPYRIGHT ACT: They are all forms of Intellectual Property or IP which can be legally protected. Trademarks should be registered, however, to be enforceable, and patents refer to a new an useful invention that would be non-obvious, a new development (The Trademark Group, 2012). However, in exchange for disclosing how the patent works, you get protection – some may prefer to keep it as a Trade Secret (as Google did with its Search Engine algorithms). However, if others then steal it, or come up with another, similar idea, it can be hard to prove your secret was stolen, and the other party can then patent that work.

STUDENT: OK, OK, I think I have it. But can I now go and join the PUBLIC DOMAIN? There seems to be so much fun happening there!

STUDENT: Well, not by mistake – but I’ve used a Creative Commons license 4.0 Attribution, Noncommercial, Share Alike so I think I am good to go?

FOAK: Technically, this is not PUBLIC DOMAIN, but it’s also not All Rights Reserved COPYRIGHT either. It’s a whole new kind of creation within copyright laws of the Creative Commons. So – why limit yourself to the Carnival Courtyard when there is the entire Commons to be explored, which is what happens when resources are shared which are not regulated by the state, nor the markets (The Next Systems Project, 2016).

STUDENT: So to the Commons it is?

FOAK: Indeed – and the PUBLIC DOMAIN will join us there –

SCENE: they head towards the Commons.

-Ends-

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