Copyright in the Digital Age: How the TPP extends a flawed and harmful policy

January 11, 2016

It doesn’t seem controversial to suggest that the creator of an original artistic work, such as a song, film or a piece of literature, deserves the right to control how that work is used. Indeed, the notion of copyright is somewhat of a cultural and socioeconomic fixture in Western culture—though mostly, it is a point of bemused spectacle for average people. Consider the story of Sam Smith, a soulful singer-songwriter from England. He was recently under scrutiny after some listeners noted that his song “Stay With Me” was remarkably similar to Tom Petty’s “I Won’t Back Down." The two songs clearly share similar (yet notably simple) chord progressions and certain (again, very simple) melodic motifs, albeit with considerably disparate instrumental arrangements and stylistic treatments. Since the release of “Stay With Me,” countless individuals have created videos and audio tracks, mashing the two songs together to illustrate their similarities; such is the bizarre, technology driven world we live in today where this kind of feat is not only possible but also commonplace. Smith’s label quickly settled with Petty’s lawyers, awarding him royalties and a song writing credit. Aside from highlighting just how unoriginal and derivative most pop music really is, the situation also serves to underscore the truly absurd role of copyright law in modern times. It is most often employed by affluent people and corporate entities, e.g. Tom Petty and his label, and likewise Sam Smith and his label, both parties with the financial means and legal resources to negotiate a matter, such as this, and potentially mount a costly and time-consuming lawsuit if it were financially beneficial for them to do so. This is something that most Americans simply cannot do. Though ironically, they can illegally download both Petty and Smith’s entire discographies with meager chance of legal repercussions. And yet, the notion of copyright is clearly still ingrained in our national consciousness today. But with the advancement of technology, the world is rapidly evolving. Unfortunately, laws are not so quick to do the same. Does this set of rules and conventions actually serve the public good? Is our notion of copyright law worth extending to other parts of the world?

Copyright is largely governed by territory, meaning that rights and protections such as those afforded to us by U.S. law are generally limited to, well, the United States. But international agreements between countries can extend these rules to other territories. It is undeniable that, for better or worse, such agreements have shaped the world around us into what we know today. They have spurred the globalization of markets and dramatically shifted the economic paradigms of entire countries, including—in large part—the United States. The architects of such deals have naturally used these agreements, massive both in scale and scope, as the prevailing method for advancing global economic agendas in the modern age. Today, such an agreement is nearing completion. After five years of negotiations, countries involved in the Trans-Pacific Partnership (TPP) reached an agreement on October 5, 2015. The deal serves as an extension of the Trans-Pacific Strategic Economic Partnership Agreement (TPSEP or P4), signed by New Zealand, Singapore, Brunei and Chile in 2005. This time, twelve countries were involved in negotiations: U.S., Canada, Mexico, Japan, Australia, Vietnam, Peru, Chile, Malaysia, New Zealand, Singapore and Brunei Darussalam. The partnership contains many components indicative of traditional trade agreements, such as the lowering of tariffs between countries. But the TPP has been subject to a plethora of scrutiny and criticism. And one highly controversial part of the agreement may change the way we make and interact with entertainment, art, and indeed all creative works in the future.

The matter of intellectual property rights has been a specific point of contention among countries involved with the TPP negotiations; it’s one of the major issues that has led to an approximate three-year delay of the agreement’s finalization. There have been at least 19 points of disagreement regarding intellectual property during the negotiation process, with the U.S. applying pressure on other countries to give in to its demands. On October 9, 2015, WikiLeaks released the final draft of the intellectual property chapter of the TPP). Julian Assange, the editor-in-chief of WikiLeaks, had previously criticized the intellectual property component of the TPP. In 2013, after releasing a preliminary draft of the IP chapter, Assange said: “We released today...the secret intellectual property chapter, what they call 'intellectual property,' but it's actually all about how to extend monopoly rights of companies like Monsanto, which has genetic patents over wheat and corn. They are extending the ability of Disney to criminally prosecute people for downloading films, prosecuting internet service providers, and introducing something they call a 'patent prosecution highway' ”. While Assange’s comments tend to drift towards sensation and spectacle, his grim appraisal of the deal echoes that of many serious critics’ of the TPP. Such critics commonly argue that the deal disproportionately benefits and protects corporate entities, rather than the average people of the involved countries. The spirit of this criticism extends in no small part to the aspects of this partnership affecting copyright law.

There are numerous philosophical justifications for the enforcement of copyright. Today, this set of conventions is such a foundational component of our legal system; it just seems to be common sense that the creator of a work ought to have exclusive control over its use. Pragmatically, it is commonly thought that this system incentivizes the creation of new, original works, thus driving industries that depend on the creative process. Of course, over the last couple of decades, the development and spread of the internet has further complicated matters in previously unimaginable ways. Now, it has become as easy as the click of a mouse to replicate and distribute a work, and far easier to commit copyright infringement in turn. In relation to intellectual property, authors of Understanding the Trans-Pacific Partnership note: “Countries differ on the appropriate level of obligation in several areas, including patent rights for pharmaceuticals, copyrights, and enforcement”. Representatives of Canada, for instance, have notably objected to the U.S.’s proposals for copyright protection, a major part of which involves the increased criminalization of copyright infringement. Essentially, the U.S. is looking to broaden the definition of criminal infringement to include any noncommercial violations, while previously only commercial infringement was considered a criminal offense. The distinction is crucial and significant to those countries that oppose the stringent criminalization of copyright infringement. Advocacy groups in Canada are asking the recently elected Prime Minister Justin Trudeau to push against such changes, which fly in the face of recent copyright reforms in their country. These reforms were aimed specifically to account for noncommercial use of a copyrighted work in a straightforward, common sense manner. For instance, Canada’s so called mash-up exception allows for the creation of a new work from a copyrighted work, so long as the new work is not sold for commercial gain. Should said violators be criminally prosecuted for merely sharing a file? When the definition of criminal infringement extends to noncommercial violations, some absurd things start to set in motion. What you get are these obtuse manifestations of law where it is technically illegal to share something as innocuous as an internet meme.

While it is clear that the mandate of the U.S. has been to extend the policies of strict copyright enforcement, it is interesting to note that the TPP does not explicitly extend one reasonable part of U.S. copyright conventions: fair use. In essence, copyright law grants the creator of an original work with the exclusive right over said work in relation to its use, distribution and reproduction, among other rights. As such, other parties cannot legally use the work without the explicit permission of the copyright holder. But the conventions of fair use do allow for the copying of a protected work, insofar as such a use adheres to a certain reasonable set of criteria. If the copying of a work constitutes a “transformative” act that will greatly help the case for fair use. Creating a parody of a well-known song, for instance, arguably constitutes fair use. Song parodist Weird Al Yankovic, for example, does not have to ask for permission from rights holders in order to sell and perform his song parodies, although he does so as a courtesy. But fair use emerged out of our common law system and its application by the courts is complicated and unpredictable. Perhaps that is why these same conventions cannot be extended to other countries. They aren’t even really hammered down here. And after all, why would they be? There is no real money in protecting the conventions of fair use. Extending the scope of such conventions might even affect the bottom line of major corporations. Such is the dysfunction within our legal system. But perhaps even more problematic is the issue of copyright terms, yet another problematic nuance of the TPP.

Central to the very idea of copyright is the stipulation that it is limited to a given time period, after which such a work goes into the public domain. This time period is conventionally referred to as a term. When a work’s copyright term has expired, it is said to have fallen out of copyright. Thus, such a work is public domain; meaning prior legal restrictions to the work’s use no longer apply. But in the U.S., copyright terms are convoluted and arbitrarily long. Any work published prior to 1923 is public domain. In addition, any work published with a copyright notice between 1923 and 1963, but does not have a copyright renewal has effectively fallen out of copyright. Any work published between 1923 and 1977, without a proper copyright notice, are also in the public domain. And finally, works published between 1978 and March 1, 1989 without copyright registrations are also in the public domain.

While works published in the past are subject to an arbitrarily complicated set of year ranges, exceptions and other various nuances, works published today are plainly subject to copyright for the life of the creator plus 70 years. Let’s presume a work is published today, and the original copyright holder dies 35 years from now. Such a work would not be in the public domain until the year 2120. Many consider these conventions to be excessive, and not particularly beneficial in the way of protecting artists or promoting creativity. Such laws do, however, work to protect the financial interests of corporations that obtain and hold the rights of such works. It wasn’t always that way. The Copyright Act of 1790 set the term for copyright protection to 14 years, renewable for another 14, after which the work would fall out of copyright. A maximum of 28 years is a considerably modest term when compared to the unmitigated behemoth we have today. So what happened? The answer is perhaps more depressing than alarming, and points to a larger, systematic problem within the U.S. government. Businesses habitually engage in lobbying efforts in order to influence Congress and the legislative agenda. As such, Congress has continually extended copyright terms , such that works which ought to have been public domain decades ago are being held captive by wealthy corporations. These corporate entities grow wealthier through this very manipulation, without the necessary creation of new works. That last part is important. Current conditions do not promote creativity; in actuality, they promote an atmosphere of complacency and decadence. A business with a vast collection of intellectual property can simply rest on their laurels, collect royalties, and effectively do nothing of value for society.

The song “Happy Birthday to You,” has recently made headlines amid litigation regarding the legitimacy of Warner/Chappell Music’s copyright over the song, which has now been ruled invalid. Many have interpreted the court’s judgment to mean that the ubiquitous Happy Birthday song is now in the public domain. And yet, for decades, Warner/Chappell Music has profited greatly from the licensing of this song, due in no small part to its popularity in American culture. In fact, the song has earned over $50 million in its lifetime, and has recently brought in $2 million per year for Warner/Chappell. It isn’t a stretch of imagination to say that Warner/Chappell has been withholding this work from its rightful place in the public domain, and has indeed defrauded would-be content producers of both time and money by enforcing the strict control of the work. The sad part is that this isn’t terribly unusual. What has happened with “Happy Birthday to You” over the years is a shining example of the lengths corporations will go to in order to profit from a work that they arguably have little claim over, but the very same problem exists with films, literature, art and other mediums.

It is clear that certain aspects of copyright law, as it exists today, are both impractical and perhaps even harmful to society as a whole. The issue is not that the entire notion of copyright law is invalid; of course artists and creators are entitled to have dominion over their own work. It’s more of a question of the scope and term of that entitlement. Does it extend to other parties, namely corporations that claim to own such a work many years after the original creator’s death, in virtual perpetuity? Do noncommercial violators of copyright deserve to be held as criminals in the court of law? If so, what function does that sort of convention serve? Who is really benefiting? In a sense, copyright law as it exists today is a sad perversion in light of what it was originally intended to do; i.e. protect creators and promote innovation. The conventions of copyright, which in principle ought to protect and promote artistry and innovation, now serve to hinder those very things. Instead, corporations and their cohorts in government use copyright law to protect their wealth. They do so not because they are inherently evil, but because profit motive is the driving force of their activity. That is, by definition, what corporations do. But by allowing these outdated conventions to continue, we are effectively endangering the cultural and artistic wellbeing of future generations, thus undermining the collective creativity of humanity as a whole.

David Stockdale is a freelance writer from the Chicagoland area. His political columns and book reviews have been featured in AND Magazine. His fictional work has appeared in Electric Rather, The Commonline Journal, Midwest Literary Magazine and Go Read Your Lunch.  Two of his essays are featured in A Practical Guide to Digital Journalism Ethics. David can be reached at dstock3@gmail.com or via his website.