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Copyright Law Topic of N.Y. Confab

8 May, 2008 By: Anne Sherber

NEW YORK — Now that the music, movies, books and even paintings are available in digital formats, and, consequently, easily appropriated, how do we make sure creators have control over their work without stifling the free flow of ideas? That question was at the center of On Copyright 2008, a conference held here last month.

The session, Technology: Confronting the Tools of Disruption, was organized around copyright issues raised by changing technology. The specter of the music industry's response to what it perceived as a technological assault on its ability to profit loomed large. Panel moderator Chris Sprigman, associate professor at the University of Virginia School of Law, noted that rather than recognizing that its core business was to help artists disseminate their music to as large an audience as possible, the music industry behaved as if it was in the business of selling plastic discs when faced with peer-to- peer file sharing.

Now, said Sprigman, the music industry is having difficulty collecting money for that plastic disc. But had record companies been more flexible about how they extracted value from signed artists, a new paradigm might have been possible, one in which the CD became an adjunct to other, more profitable endeavors, including touring and merchandising. In that alternate universe, according to Sprigman, both recording artists and the recording industry might have made money.

Clay Shirky a professor and author, noted that by making services such as Hulu.com free to end users, content producers are beginning to acknowledge what has been true since Napster: “If you give someone a piece of equipment that allows then to do something they want to do, it's hard, in a democratic society, to keep them from doing it.”

In the session Society: New Experiences, New Expectations, moderator Tim Wu, professor at Columbia Law School, observed that what one company regards as copyright infringement, another may regard as marketing. Wu used as an example the current court case brought by “Harry Potter” creator J.K. Rowling against Steve Vander Ark to prevent him from publishing the Harry Potter Lexicon, a comprehensive index of the author's series of novels.

Wu said that the question of what people think is right or wrong in the world of copyrighted works is as central to the question as the law on the subject. He noted that nothing like the kind of “bizarrely detailed fan-produced trivia” that is included in the Harry Potter Lexicon has existed until this century. Wu said that in the early days of fan sites Warner Bros, issued “cease and desist” letters to protect what they perceived as their property. But, said Wu, in 2000, the company began to change its policy toward fan-produced content. Now there are a number of large “Harry Potter” fan sites and Warner Bros, enjoys a friendly relationship with those sites, even though many of them include clear cut cases of copyright infringement.

That friendliness lasted up until one of the fans decided to publish his work as a book. But, according to Wu, whether Rowling wins or loses the case, she has already won in what is, arguably, a more important court.

“The fans have sided with her,” said Wu. That means, he noted, that even if the book is published, the audience most likely to purchase it — rabid “Harry Potter” fans — has a built-in prejudice against it.

The panel Law: The Enduring Search for Balance, focused on what role the law can play in the creation and protection of original work. Michael Carroll, a professor at the Villanova University School of Law, noted that “whatever the technological environment, people will want other people to tell them stories, they will want the news of the day, they will want new songs. People are going to want culture. If you want that to happen in a market-based society, you need to create a way to get people paid.”

Unfortunately, he suggested, how that might get codified is anyone's guess. What is clear is that current law does not address even current technological capabilities, much less make room for future innovations. He pointed to the lack of restrictions on device manufacturers as one example of how current copyright law is not current.

“Apple was able to go to market with the iPod without first getting permission from record companies,” Carroll said.

The panel Art: Inspiration, Creativity and Ownership, looked at the question from the creator's point of view. To make a point, singer/songwriter Suzanne Vega played recordings of her a cappela song, “Tom's Diner,” both as she originally recorded it and as it has been sampled by more than a dozen other artists, some of whom had asked for permission and some of whom have not.

According to another panelist, Jonathan Lethem, a novelist, extracting and protecting original ideas is not an easy task.

“Everything is a kind of enormous patchwork,” he said. “Nothing comes from nowhere. We all cobble together pieces of what's lying around.”

Some of that will be protected, he noted.

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