Steal this idea! Action Speaks! tests the tension between copyright and the free flow of culture BY TE-PING CHEN

In the 1930s, Coca-Cola popularized the modern-day icon of Santa Claus through a series of commercials depicting the merry gift-giver as most recognize him today — a jovially plump, ruddy figure with a twinkle in his eye. From children’s books and dancing dolls to TV shows, this ubiquitous version of Santa has come to occupy a seasonal center of our collective imagination.

At the time, Coca-Cola put no trademark or copyright on the company’s version of Santa. If it had, anyone invoking a similar image of St. Nick without acquiring the multinational corporation’s permission could potentially have been sued.

At what point can or should culture be legally commodified? Such questions of public ownership lie at the heart of this year’s annual Action Speaks! discussion series at AS220, 115 Empire Street, Providence, which spotlights "underappreciated days that changed America." Action Speaks! is produced by AS220, the Rhode Island Council for the Humanities, and the Rhode Island School of Design (the Phoenix is a cosponsor).

This Wednesday, October 19 from 5:30-7 pm, the third installment of 2005’s Action Speaks! focuses on the significance of the incorporation of the Fair Use Doctrine into the 1976 Copyright Law. The Fair Use Doctrine provides for the limited public use of copyrighted materials after taking into consideration the purposes, nature, extent, and commercial effect of such use. The panelists will be Marjorie Heins, founder of the Free Expression Policy Project at the National Coalition Against Censorship; Michael Hermann, director of licensing for the Andy Warhol Foundation for the Visual Arts; and David Bollier, editor of www.onthecommons.org, and author of Brand Name Bullies: The Quest to Own and Control Culture (John Wiley & Sons, 2004). RI PBS (Channel 36) will broadcast the related documentary On Television: Public Trust or Private Property on Monday, October 17.

Bollier recently spoke with the Phoenix.

What are the origins of the Fair Use Doctrine?

Fair Use has been around as a concept for a good 150 years. It’s always been around as a fact of culture, because if everything’s locked up, you can’t create anew. It’s like the famous Isaac Newton saying, "If I can see farther, it’s because I stand on the soldiers of giants." Well, culture is about that kind of interdependent sharing. We have to build upon what’s gone on in the past because that’s part of our culture — they’re a limited number of things that can be done with how many notes of music there are. My idea of Fair Use is the ability to create new things based on fragments or even larger portions of prior work. It’s about legally enabling us to do that without us having to pay a fee or request permission in advance.

The sanctity of "private property" is deeply embedded in American history. How does the Fair Use Doctrine fit into this framework?

That copyrights and patent law are property is one of the biggest myths out there. Copyrights have property-like attributes, but in fact they’ve always been a policy bargain between the public and the creator. The public via the government says, "We’ll give you monopoly rights under certain stipulated conditions for a limited term that allows certain portions to be used under what’s called Fair Use." That’s why libraries can function, because publishers can’t say, "I deserve a royalty every time someone uses my book."

It’s a policy bargain as opposed to private property, like a piece of land. Even in that case, property has all sorts of public-purpose exemptions, like easement and zoning. In fact, the whole notion of intellectual property has only gained ascendancy over the past 20 or 30 years. [The term] serves the purpose of content owners — by using the word ‘property,’ they’ve rhetorically been able to make their claims to ownership inviolate. It’s a fair term in the sense that they regard the various copyrights they own as property — inventory — as opposed to the way a real creator might regard it, as precious cultural work. But that’s not what the law has historically been about.

Brand Name Bullies chronicles some outrageous anecdotes of lawsuits filed under the Copyright Law of 1976. Are there any related to the Fair Use Doctrine that come to mind?

In one of my favorite stories, ASCAP [the American Society of Composers, Authors, and Publishers], a performance-licensing body, decided they didn’t like the fact that a lot of summer camps were using copyrighted songs around the campfire — songs like "Puff, the Magic Dragon," and "Blowin’ In the Wind." They thought, "Well, we get to charge performance licenses to performers, theaters, resorts and so forth, why shouldn’t we get performative licenses from commercial summer camps?" This included the Boy Scouts and Girl Scouts — which are not commercial, but that didn’t matter. In the mid-1990s, ASCAP pressured scores of summer camps to pay performance license fees anywhere from a couple hundred to $1200. Eventually, when this hit the press it was huge embarrassment and they backtracked, but it’s an example of how something we thought was part of our common culture is, in fact, owned.

The Copyright Law was passed nearly 30 years ago. Do you feel it’s retained relevance?

In some ways, the 1976 regime is ill-suited for the new media environment characterized by the Internet. Paradoxically, the law is getting far more restrictive at a time when technologies are allowing greater ease of sharing. Increasingly, we see the giving of property rights to works [in a way that] stifles the flow and circulation of information to the broader public. Often it’s the non-market vehicles — the Internet, online commons — that are generating and sharing information more efficiently than the market. I’m not against copyrights in general; they serve many important purposes such as rewarding authors for their creativity, but we are in a very complicated situation in which print media and the Internet media coexist but have different dynamics.

What kind of balance did the Fair Use Doctrine strike between treating creative work as public or private property?

Not a very good balance, because its actual parameters are murky and it’s very difficult to know what’s Fair Use, unless [you] have an army of lawyers to go to court, or a lot of money to pay to figure it out. On top of that the law is contradictory. There have been cases with nearly identical fact circumstances judged in very different ways by different courts. It's very difficult for creators or potential creators to know what they’re legally entitled to use.

What effect does copyrighting have on the shaping or democratization of culture?

If copyright is extended too far, it can shut down legitimate sources of innovation, creativity, and essentially give excessive control over culture to the major companies. The point of the Internet era is that we’re all creators; we all have cultural and evolving democratic needs, which are separate from the marketplace. There’s a rather polarized battle over whether creative works should be absolutely controlled, locked up and managed by copyright owners, or whether the public ought to preserve some of the traditional Fair Use rights which are now increasingly jeopardized.

We need to re-strike the balance between copyrights, and property control, and the free circulation of information. We need to be very mindful of how far copyright law extends — and yes, protect the legitimate needs of creators to be paid, but also distinguish that from the monopoly interests of large companies that want to lock up creativity to within an inch of its life.

Te-Ping Chen can be reached at teping.chen@gmail.com.