Making Copyright Work for Creative Upstarts

The following post is by CPIP Research Associate Matt McIntee, a rising 2L at George Mason University School of Law. McIntee reviews a paper from CPIP’s 2014 Fall Conference, Common Ground: How Intellectual Property Unites Creators and Innovators.

By Matt McIntee

In Making Copyright Work for Creative Upstarts, recently published in the George Mason Law Review, Professor Sean Pager demonstrates how the current copyright system can be improved to better support creative upstarts. Pager defines “creative upstarts” to include “independent creators and producers who (a) are commercially-motivated; (b) operate largely outside the rubric of the mainstream commercial content industries; and (c) therefore lack the kind of copyright-related knowledge, resources, and capabilities that mainstream players take for granted.” Though these upstarts depend on their copyrights to make a living, they often find it difficult to effectively navigate the copyright system.

Pager explains how the copyright system generally benefits sophisticated users. For example, the Copyright Act contains hyper-technical language that can be difficult for naïve users to traverse. Pager pilots through this strikingly complex legal regime and determines that there are ample opportunities to afford better copyright protection to creative upstarts without diluting the copyrights held by others. He offers several proposals geared towards protecting the interests of creative upstarts, and he explains how the copyright system was designed without these features in mind.

One of Pager’s proposals is that we lower copyright registration costs, which potentially deter creative upstarts from registering their works. He notes that registration, obtaining accurate copyright information, and clearing copyrights are among the chief costs associated with obtaining copyright protection. A $35 registration fee may seem insignificant due to the benefits that come with it, but these costs can add up quickly for creative upstarts who generate large volumes of works. For example, graphic artists typically create many original works in order to build their portfolios, and the registration costs could be prohibitive.

Pager also notes that the Copyright Office’s searchable database increases costs for creative upstarts by adding valuable time to the process. The database is supposed to be complete and catalogued so that persons can easily search for accurate copyright information, but unfortunately this is not always the case. As a result, many creative upstarts have to spend precious time sifting their way through incomplete records and clearing copyrights instead of spending their time creating.

Tracing the history of the current regime, Pager explains how the copyright system assumes that artists seeking copyright protection have ample resources, such as lawyers, production facilities, manufacturers, and money. When the system was designed, policymakers structured it to support a “capital intensive process” that required significant investment and risk. But as Pager notes, the industry has shifted, and creative upstarts now form the bulk of content creators. A copyright system designed for artists recording on 8-track tapes is no longer appropriate in the digital age.

Pager offers a number of incremental steps to reform copyright law with the goal of making it more favorable to creative upstarts while still protecting the other players in the field. Though he acknowledges that there is no “magic bullet” solution, Pager argues that “improvements must come through a combination of substantive, procedural, and institutional reforms that yield incremental improvements across the entire copyright system.” And with such a comprehensive approach, he notes that certain tradeoffs will have to be made.

Substantively, Pager discusses how reducing systemic complexity is “deceptively simple.” While replacing “fuzzy standards with bright-line rules” would to some degree enhance certainty, Pager notes that “bright lines quickly become blurred” in a “world of fast-changing technologies and business practices.” He proposes instead that a “more realistic fallback goal would be to couple open-ended standards with clear safe harbor provisions or explicit examples.” Under this system, “standards would have room to evolve” while “their core meaning would be anchored as a starting point.”

Regarding procedural reforms, Pager suggests a “small claims dispute resolution” mechanism to drastically reduce costs for creative upstarts by providing them with a quick way to pursue infringement claims. Right now, copyright claims are exclusively within the jurisdiction of the federal district courts, an impractical and expensive route for independent artists. The Copyright Office has put forth a proposal for such a mechanism, but Pager argues that there is a “fatal flaw” since the process “would only be available on a voluntary basis.” By allowing “better-resourced adversaries” to opt out, the Office’s proposal leaves creative upstarts vulnerable.

Pager proposes that the Section 512 notice-and-takedown procedures could be improved to better support creative upstarts. Currently, creators are burdened by both the number of takedown notices required and the lack of access to the “trusted sender” facilities available to major participants. As Pager notes, the House Judiciary Committee addressed these issues as recently as March of 2014, but questions remain concerning who will bear the costs and how the transition will be implemented.

Turning to the registration system, Pager suggests three reforms that would benefit creative upstarts. First, having a single registry for authors to register their works, rather than a multitude of public and private registries, would reduce administrative burdens. Second, registration records would be more efficiently maintained through a tiered-fee system that charges more to larger content creators in order to subsidize the costs of smaller upstarts. Lastly, removing the timely registration requirement for enhanced damages, coupled with small claims dispute resolution reform, would provide cost-effective enforcement mechanisms.

Finally, Pager explains how technology can play a pivotal role in helping creative upstarts. One example is updating the Copyright Office website to provide more basic information about the copyright system. This information is currently scattered all over the Internet, and it could be organized to make it more user-friendly and less “lawyerly.” Another example is implementing software similar to TurboTax that actively assists authors when registering their copyrights. There would first have to be substantive changes in the law to allow for such software, but Pager believes that this technology would be incredibly helpful to those navigating the registration system.

Creative Upstarts is a fascinating look into the world of creative upstarts. With their interests and the interests of the larger copyright ecosystem in mind, Pager skillfully traverses our complicated copyright regime and identifies ample opportunities to improve copyright protections for creative upstarts. The twenty-first century is a digital age, and creators and innovators have the technological ability to produce creative works right on their laptops. Pager’s hope is the Copyright Act will be updated to address the realities of this modern world for creative upstarts.

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