Marjorie Heins, Tricia Beckles: Will Fair Use Survive? Free Expression in the Age of Copyright Control (2005)

Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research, Will Fair Use Survive? paints a striking picture of an intellectual property system that is out of balance. The report includes six recommendations for policy change.

This report is covered by a Creative Commons “Attribution – No Derivs – NonCommercial” License. You may copy it in its entirety as long as you credit the Brennan Center for Justice, Free Expression Policy Project. You may not edit or revise it, or copy portions, without permission (except, of course,
for fair use).

A Public Policy Report
Publisher: Brennan Center for Justice, NYU School of Law

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Charlotte Hess, Elinor Ostrom (eds.): Understanding Knowledge as a Commons: From Theory to Practice (2006)

“Knowledge in digital form offers unprecedented access to information through the Internet but at the same time is subject to ever-greater restrictions through intellectual property legislation, overpatenting, licensing, overpricing, and lack of preservation. Looking at knowledge as a commons—as a shared resource—allows us to understand both its limitless possibilities and what threatens it. In Understanding Knowledge as a Commons, experts from a range of disciplines discuss the knowledge commons in the digital era—how to conceptualize it, protect it, and build it.

Contributors consider the concept of the commons historically and offer an analytical framework for understanding knowledge as a shared social-ecological system. They look at ways to guard against enclosure of the knowledge commons, considering, among other topics, the role of research libraries, the advantages of making scholarly material available outside the academy, and the problem of disappearing Web pages. They discuss the role of intellectual property in a new knowledge commons, the open access movement (including possible funding models for scholarly publications), the development of associational commons, the application of a free/open source framework to scientific knowledge, and the effect on scholarly communication of collaborative communities within academia, and offer a case study of EconPort, an open access, open source digital library for students and researchers in microeconomics. The essays clarify critical issues that arise within these new types of commons—and offer guideposts for future theory and practice.”

Contributors: David Bollier, James Boyle, James C. Cox, Shubha Ghosh, Charlotte Hess, Nancy Kranich, Peter Levine, Wendy Pradt Lougee, Elinor Ostrom, Charles Schweik, Peter Suber, J. Todd Swarthout, Donald Waters

Publisher MIT Press, 2006
ISBN 0262083574, 9780262083577
367 pages

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Siva Vaidhyanathan: Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2001)

Copyright reflects far more than economic interests. Embedded within conflicts over royalties and infringement are cultural values—about race, class, access, ownership, free speech, and democracy—which influence how rights are determined and enforced. Questions of legitimacy—of what constitutes “intellectual property” or “fair use,” and of how to locate a precise moment of cultural creation—have become enormously complicated in recent years, as advances in technology have exponentially increased the speed of cultural reproduction and dissemination.

In Copyrights and Copywrongs, Siva Vaidhyanathan tracks the history of American copyright law through the 20th century, from Mark Twain’s vehement exhortations for “thick” copyright protection, to recent lawsuits regarding sampling in rap music and the “digital moment,” exemplified by the rise of Napster and MP3 technology. He argues persuasively that in its current punitive, highly restrictive form, American copyright law hinders cultural production, thereby contributing to the poverty of civic culture.

In addition to choking cultural expression, recent copyright law, Vaidhyanathan argues, effectively sanctions biases against cultural traditions which differ from the Anglo-European model. In African-based cultures, borrowing from and building upon earlier cultural expressions is not considered a legal trespass, but a tribute. Rap and hip hop artists who practice such “borrowing” by sampling and mixing, however, have been sued for copyright violation and forced to pay substantial monetary damages. Similarly, the oral transmission of culture, which has a centuries-old tradition within African American culture, is complicated by current copyright laws. How, for example, can ownership of music, lyrics, or stories which have been passed down through generations be determined? Upon close examination, strict legal guidelines prove insensitive to the diverse forms of cultural expression prevalent in the United States, and reveal much about the racialized cultural values which permeate our system of laws. Ultimately, copyright is a necessary policy that should balance public and private interests but the recent rise of “intellectual property” as a concept have overthrown that balance. Copyright, Vaidhyanathan asserts, is policy, not property.

Bringing to light the republican principles behind original copyright laws as well as present-day imbalances and future possibilities for freer expression and artistic equity, this volume takes important strides towards unraveling the complex web of culture, law, race, and technology in today’s global marketplace.

Publisher New York University Press, 2001
ISBN 0-8147-8806-8
Length 256 pages

Keywords and phrases
Mark Twain, Napster, Pac-man, U.S. Supreme Court, D. W. Griffith, African American, Ben-Hur, Led Zeppelin, Marx Brothers, Statute of Anne, Willie Dixon, rhythm and blues, Groucho Marx, Martha Graham, DMCA, U.S. Congress, Schoolly D, intellectual property, rap music, He’s So Fine

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