From Boing Boing. This proposal to expand fair use would reduce the damage done by copyright. And for this reason I can’t see Congress doing it. We have the horrible copyright system that is in place now precisely because of the lobbying pressure by Big Content and they will not stand for an improvement in the fair use exception to copyright law, since this means a corresponding reduction in the scope of copyright protection. Copyright protection always increases legislatively over time, per Higgs’s ratchet effect. It does not retreat. Still, we can hope….
Cory Doctorow at 6:00 pm Sun, Feb 2, 2014
Naomi Novik isn’t just a talented author (she won the John W Campbell Award for best new writer in 2007 on the strength of her fabulous Temeraire novels, which retell the Napoleonic wars with dragons providing air-support!), she’s also a profound thinker on the questions of reuse, remixing, intellectual freedom and copyright.
Last week she gave testimony (PDF) to the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet that described the way that creators rely on their ability to remix in order to create new and original works.
One thing I love about Novik is her intellectual honesty and her willingness to cut through the self-serving, romantic mythology of the wholly original creator, and to both acknowledge and celebrate the fact that her originality comes about by taking the works that others created before her and adapting them through her own artistic process, “Original work, work that stands alone, doesn’t just pop up out of nowhere. It is at the end of a natural spectrum of transformation.”
I also appreciated her strong arguments as licensing as a substitute for robust fair use: “On the purely practical level, the vast majority of remix artists doing non-commercial work simply don’t have any of the resources to get a license — not money, not time, not access.”
Novik’s testimony is admirably summarized by Dr Matthew Rimmer in this Techdirt post. Rimmer is a global expert in fair use and copyright, and he highlights many of the most salient features of Novik’s testimony.
I would like to publicly express my gratitude on behalf of writers everywhere to Naomi Novik for standing up for a fair deal for creators and audiences in Congress.
In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fanfiction, built online computer games, wrote opensource archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help. I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren’t trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week. Fair use gave us the right to do that…
Vincent van Gogh deliberately copied Japanese woodcuts so that he could find his own style. Shakespeare borrowed heavily from earlier sources. No one could deny that he transformed them. But imagine if the laws of his time had barred him from doing so. We wouldn’t have Hamlet, we wouldn’t have King Lear, we wouldn’t have Romeo and Juliet. And if Leonard Bernstein hadn’t borrowed from Romeo and Juliet, we wouldn’t have West Side Story. Now if we prevent the next generation from borrowing from West Side Story, we cap the flow of creativity, we dam the river of innovation…
I would ask Congress to make it easier for developing artists, who are often at a significant disadvantage currently, to exercise their fair use right. I have never received a ceaseanddesist letter. But some of my fellow remix artists have, despite the fact that their work was completely noncommercial and highly transformative. It drove several of them completely out of the community and caused them to stop sharing their work, or it stopped them creating it at all. Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that’s even possible, they have had to file countercomplaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.
Our country is the world leader in innovation because here we ask those what if questions, and we are free to imagine what the answers look like. We’re encouraged to look around us at the things that exist and imagine how we could make them better, how we could take them to the next level, how we could transform them.
That is the spirit behind fair use. Fair use invites us to tinker and transform, and it frees us to explore ideas and share them with one another. It gives new artists and creators more tools to play with early in their careers and facilitates the evolution of genres and new forms. Any narrowing of fair use is inimical to this spirit.
Testimony of Naomi Novik before the U.S. Subcommittee on Courts, Intellectual Property and the Internet [PDF, judiciary.house.gov]
Naomi Novik at House Judiciary Hearing [Organization for Transformative Works]