Complexity, Copyright, and Fairness | Peer to Peer Review

In the digital environment in which libraries now exist, copyright law is equivalent to air; we must live and move and carry out our work surrounded by it all the time.  It is increasingly important for librarians to understand copyright and to be able to explain it to those with whom they work.  But copyright law is complicated and difficult.  For every rule there are multiple qualifications imposed on its application, many exceptions, and, often exceptions to the exceptions. Many libraries now appoint a librarian to be the “point person” on copyright issues.  Sometimes such appointments can be very successful, if the librarian is interested and willing to persevere through the tangle that is the copyright law.  Sometimes the results are more mixed, when the appointed expert (and the people who consult him or her) discovers that they have bitten off a less digestible task than expected. All of which raises the question of why the law is so complicated.  I think there are two major reasons, and understanding them can make comprehension of those complexities a little easier, or at least more bearable. The first reason copyright law is complicated is, quite simply, lobbying.  When the copyright law was being rewritten over almost 20 years, lots of different interest groups, including educators, librarians, publishers, and many others made specific requests. Sometimes a particular group was quite successful; restaurant and bar owners were able to get a complex provision into the law that allows them to have radios and TVs playing in their establishments, for example (section 110(5)).  In other places the law reflects the conflicting interests being served, and “seams” between allowances for those conflicting interests are visible in the text of the law itself. The section written explicitly for libraries, section 108, is one place where the contest of interests remains particularly visible today.  That section gives libraries authorization for two important activities, preservation and interlibrary lending.  But some rights holders objected quite strongly to these activities, so section 108(i) was added to exclude audiovisual works from the activities authorized by the section.  Yet the case for preservation made by libraries was still persuasive to many, so ultimately an additional line was inserted into subsection (i) that said that the exclusion of AV works did not apply to the preservation activities, which apparently are therefore still permitted.  Thus the legislative “sausage-making” process produced an ugly and unwieldy compromise, where the conflicts between the interests of the various groups that lobbied Congress are still quite apparent. The much more significant reason that copyright law is so complicated however, is simply that whenever differing interests are balanced and attempts are made to reconcile them, the result is complicated.  My tax law professor in law school was fond of putting this principle very simply:  fairness breeds complexity. Tax law, in fact, is the area of law in which this dictum is most obviously true, and in which it is most vigorously disdained.  Each provision of our tax code was, at some point, intended to balance the effects of the income tax in a way that accounted for real differences in how taxpayers were situated.  Each was a well-intentioned effort to avoid harsh results and to treat people according to their particularized desserts. No one set out to create the baggy monster that is today’s tax law, yet Title 26 of the U.S. Code now extends to over 3300 pages.  And proposals to simplify the tax law very quickly begin to multiply qualifications, as those who advocate a flat tax or some similar solution try to avoid regressive effects and provide for those groups, like parents or home buyers, who are thought to deserve a break. Fairness breeds complexity. The same principle is at work in copyright law, although it has not grown as fast and as massively as the tax law.  It would be easy to simply provide for exclusive rights and leave it at that, but such a copyright law would have very harsh effects and would make new creativity nearly impossible, which would be contrary to the very purpose of copyright as articulated in the Constitution.  On the other hand, broad and simple exceptions could be crafted to benefit users, such as a provision authorizing all educational uses (which some in academia seem to believe is already in place).  But again, this simplicity would be bought with a high price; entire markets could be destroyed by the simple provision just suggested, and with them the incentive behind some types of creation. Instead, copyright law tries to balance exclusive rights with exceptions crafted to encourage certain uses of copyrighted materials that are considered particularly beneficial to society.  Thus the rights become qualified and the exceptions are larded with rules and requirements that narrow their application.  Balance is required for fairness, and fairness inevitably leads to complexity. Once we comprehend these two reasons why copyright law is so complicated, we may approach it in a different way.  When frustrated by all of the convoluted language that leads to so many “yes, but…” or “no, unless…” conclusions, we can ask ourselves two questions.  First, what conflicting interests went in to this provision?  If I can see the different interests being served, I can often understand why the law is structured as it is.  The second question is then related: once I see the varying interests, how is a balance being struck, and is it fair? Recognizing that a desire for fairness is often behind this complex striving for balance can help us to understand why the law seems so complicated and to be more patient with it as it stands.
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Gretchen McCord

Nicely said!

Posted : May 18, 2012 03:18



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