Nina Paley on This Week in Law: Problems with Copyright

by Stephan Kinsella on February 14, 2011

I just listened to the most recent episode of Denise Howell’s This Week in Law. It featured anti-copyright activist and artist Nina Paley, and had a really excellent, fascinating and wide ranging extended discussion of artistic creativity, problems with copyright and the Creative Commons license model, and so on (I was a guest on last week’s show). Refreshingly, the two lawyers on the show, Howell and Evan Brown, as well as the other guest, Siva Vaidhyanathan, all seemed receptive to at least part of Paley’s copyright-abolitionism. All of them seem to favor reform. One interesting discussion involved the problem of copyright now being automatic and the default, ever since copyright law was revised in the 1970s. Before then you had to actively register your work and put a copyright notice on it. But the law was changed so that there are no “formalities” needed; copyright is now automatically granted whether you want it or not as soon as you create the work.

The panelists rightly point out that a big improvement in the law would be to make copyright opt-in instead of opt-out. (I proposed such a change in “Reducing the Cost of IP Law.”) As Vaidhyanathan notes, however, there are two main obstacles to this. First, the RIAA and corporate interests would strongly oppose any calls for legislative reform; and the US is now obligated under international treaties to have no formalities for copyright protection to exist (see my post The Mountain of IP Legislation). So the US would arguably violate international law (largely of its own creation) if it were to change copyright to the pre-1976 system or to any kind of opt-in system.

Another problem is that the current system is not only not opt-in, it is not even opt-out. This is because there is no easy way to get rid of copyright; I am even suspicious of the legal validity of creative commons licenses, and none of these would make the work truly public domain; CC0 comes close but its validity and global applicability is much more doubtful (see my post Copyright is very sticky!). So given the difficulties in making copyright opt-in, one big improvement in the law would be to at least permit people to opt out of it (or partially opt out, whatever)–basically, the copyright law could be amended to recognize the ability of a copyright holder to partially or completely give up copyright protection, by means of creative commons licenses or other manifestations of intent. I am not aware that permitting people to voluntarily get rid of automatically generated copyright law would violate any of the copyright treaties.

The video for this episode is below; it’s also on the TWiL page for this episode; you can also subscribe to the audio or video podcast for this show.

[Mises crosspost]

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