Copyright, Remix Culture and a “Modicum of Creativity”
As an idle lawyer, I’ve got plenty of time to continue my study of the law. An area in which I have great interest is intellectual property law, especially copyrights and trademarks.
I recently read a Supreme Court dealing with the intersection of copyrights, facts and compilations of facts, Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). To answer the question, Justice O’Connor discusses the history of copyright and why facts are not copyrightable. In short, facts are not copyrightable because copyright protection, by constitutional mandate, requires originality.
Originality and novelty are not the same thing. As Justice O’Connor makes perfectly clear:
The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Orignal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. (emphasis added; citations omitted).
For some reason, this paragraph makes me think about the “remix culture” and the debate over copyright that exists in today’s information society.
Much of the discussion over derivative works seems morally bankrupt. That someone would create works that only require a “modicum of creativity” and does virtually nothing novel seems unworthy of either copyright protection or exemption from copyright infringement as “fair use”.
On the other hand, there should not be a denial of the ability for people to create derivative works. The purpose of copyright is “not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications v. Rural Telephone Service Co. Holders of copyrights, particularly large media companies, should not be entitled to hold hostage creation for fear of competition. Authors of original works are entitled to a “head start”, not an absolute, perpetual monopoly.
The internet has spawned several movements to reach a balance in the use of protected works. The raison d’être for Creative Commons is to promote derivative works on terms set forth by the author. It is as much a moral system as it is a legal one. Creative Commons comprises a suite of copyright licenses from which an author may choose, allowing the author to decide if he will (1) permit commercial use of the work, (2) permit derivative works, (3) require derivative works to be governed by the same license and (4) require attribution on the work on any derivatives. By using this license, the author is encouraging others to share the work and potentially create new works based thereon.
