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
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
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.
COPYRIGHT ACT: (Interceding
in one transaction) Now, Now! You KNOW you can’t take the very Heart of the
work!
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
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)
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!
COPYRIGHT ACT: Well,
why didn’t you say so before? Off with you into the PUBLIC DOMAIN!
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: Oh,
go along, dearie – no point dragging it out. Scoot!
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
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”
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
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
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
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
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!
COPYRIGHT ACT: You are
sure you are not Copyrighted? Even by mistake?
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?
COPYRIGHT ACT: Over
to you FOAK –
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
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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