Copyright Protection but Without Punishing the Poor

-- By EzinneIwuanyanwu - 17 Dec 2024

The Current Copyright System

“To promote the Progress of Science and useful Arts…” This is the purpose of the United States copyright system. Through a monopoly grant, the copyright system makes a bargain to fulfill its purpose; legally enforceable exclusion in exchange for allowing the public to consume one’s creative work.

17 U.S. Code § 106 states that the owner of a copyright has the exclusive rights to reproduce, prepare derivates, distribute, publicly perform, and publicly display their work. Understood broadly, these rights amount to the exclusivity of certain kinds of uses, and these uses were likely targeted because of their monetary potential. Reproduction and distribution are fundamental to commerce. By being able to reproduce a work and then distribute it to others, a person can participate in the marketplace, selling the work many times over. Derivatives, although not quite the same as the original, use just enough of the original’s likeness and character to profit from the original’s profitability. The statute’s inclusion of the word “public” in relation to performance and display could be attributed to Congress’ understanding that publicly displaying or performing, a musical score for example, could reasonably lead to, if not already predicated on the condition of, the performers being paid.

Attribution is another key element to copyright exclusion. Creators may understandably feel entitled to having their name associated with works that they dedicate time and energy into producing. The exclusive rights of § 106 are meant to safeguard this association between creators and their works by baring others from uses that are specially reserved for the owner of the copyright. Conversely, creators may not want their work to be associated with certain ideas or concepts. Thus, § 106 forces a person to get a license or the owner’s permission, if they want to engage in these kinds of uses.

Problems in the Current Copyright System

The current system is off balance, with the bargain between exclusion and public access disproportionately favoring those who benefit from the former. If we accept that the exclusion rights of § 106 are meant to reserve a creative work’s financial profitability for the copyright owner, then we must acknowledge that it achieves this goal by putting a paywall behind any meaningful use. Low budget creators who find inspiration in the creative works of others and low-income individuals who just want to indulge in the beauty of another person’s creative genius are hurt by this paywall. By tightly gatekeeping a work’s profitability, the current system punishes those who do not have enough money to enjoy what is at the heart of a creative work—creativity.

Reimagining 17 U.S. Code § 106

The possibility of erecting a new system that protects the rights of creators without it coming at the expense of people who cannot afford to spend money on a license for meaningful access to their creative works is slim in an ultra-pro-capitalist nation like the United States. It is still a fruitful endeavor to imagine what a more equitable system would look like, not for Americans today, but for the possibility of it benefiting future Americans who could exist in a country more amendable to such a system.

A better version of the copyright system would do away with § 106, and in its place provide that owners of a copyright have receive the following: (1) Right to Attribution, (2) Right to Integrity, and (3) Right to Commercial Compensation.

The Right to Attribution and the Right to Integrity

In the current system, attribution rights are one category of rights within the broader set of Moral Rights. Attribution rights secure a creator’s right to be identified as the author of the work, while also protecting against misattribution. The Right of Integrity, the other category, provides a creator with the right to protect their reputation or protect against any mutilation of their work. These two categories of Moral Rights match up perfectly with what I envision for The Right to Attribution and the Right to Integrity, respectfully. However, Moral Rights apply exclusively to works of visual arts. All other forms of creative works must fabricate the right to attribution and the right to integrity through the exclusion rights of § 106. By gutting the current provisions of this section and expanding Moral Rights to include all types of copyrightable subject matter, we can properly account for the attribution and integrity rights. [1]

Right to Commercial Compensation

Financial control is an important part of copyright exclusions. Gutting § 106 rights would allow people to profit from another person’s creative efforts. Attribution is simply not enough to incentivize creators to share their works with the public. Many want to protect their financial compensation as well.

Unlike the Right to Attribution and the Right to Integrity, we can find little inspiration from the United States’ copyright statute to help us define the Right to Commercial Compensation. Instead, we can look to Creative Commons (CC), which offer a range of free licenses that grant the public permission to use a person’s creative work, so long as the licensee gives credit to the creator. [2] The Noncommercial License (CC BY-NC) only permits noncommercial uses of the work. The Share Alike License (CC BY-SA) allows for commercial use, but if the licensee wants to make modifications, then they must distribute their contributions under the same license as the original. Lastly, the No Derivatives License (CC BY-ND) prohibits the licensee from distributing the work if it has been modified. CC also offers CC BY-NC-ND and CC BY-NC-SA, which are combinations of these main three.

Creative Commons offers a path for the low budget creator to access creative content for free. A revised § 106 would include these licenses as standard options for creators to pick from but still allowing parties to create their own licenses. My proposed Right to Commercial Compensation would act as a silent provision and entail the following: When at any point commercial use of a copyrighted work leads to great or moderate profitability, the creator receives at least 1% of the profits from that year forward and every year thereafter or until the use stops generating great or moderate profits.

Great or moderate profitability will vary based on subject matter and with economic variances across regions and time. Only commercial entities that have not already worked out a properly compensating license deal with creators will be subject to the Right to Commercial Compensation. This new provision ensures that creators are fairly compensated by large commercial entities that the original § 106 should have focused on targeting, while the default licenses protect the creative interests of those with little money to spare.

This new copyright system is well aligned with the Constitution’s stated purpose of copyright law, even better than the current system. Creators are still encouraged to make creative works through the benefits of attribution, integrity rights, and financial compensation, but not at the expense of limiting access to the lower class.

Footnotes

[1] Per 17 U.S. Code § 102, the types of works that can receive copyright protection include the following categories: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphics, and sculptural works (PGS); motion pictures and other audiovisual works, sound recordings; and architectural works.

[2] Creative Commons is an international nonprofit organization that empowers people to grow and sustain the thriving commons of shared knowledge and culture we need to address the world's most pressing challenges and create a brighter future for all.