Creative people in the arts love what they do. Whether they write books, paint visual masterpieces with oils, or write songs from their heart, they do it because of the inner drive to create something others can appreciate. These creative expressions of ours offer the world a window into our innermost thoughts and dreams, and while we love the idea of others appreciating them, we also want to protect them. We want to protect them as much as a parent wishes to protect a child, because, after all, these ideas, these fruits of our labor are like children to us.
This desire for protection has brought about what we know today as copyright law. Copyright law had its beginnings in late 15th century England with the invention of the printing press. For the first time in history, people could produce large quantities of printed material for distribution and sale to the public. What a marvelous invention! Not only did this new technology make large numbers of copies available, but it made it far less expensive and more available to the public. In essence, it brought the arts to the people in a new way.
Writers and illustrators thought they had died and gone to heaven when they saw their printed works in the hands of others, or hanging on the wall of someone’s home. Musicians also found some protection for their written music and lyrics. In addition, these creative people also saw an increase in their income when their published works sold, which of course also made them very happy. That is until the first person decided to steal, or pirate someone’s work, publish it as their own, and gain income from it. Something had to be done, and The Licensing Act of 1662 passed by the English Parliament gave the power of review and censorship to a group of printers with the authority to censor publications that they deemed might have been stolen from someone else’s efforts. That started the whole copyright ball rolling, a ball driven for hundreds of years by the invention of new technologies.
In 1787, with the writing of the U.S. Constitution, the framers recognized the rights of artists and artisans to protect their work and wrote in Article 1, Section 8, Clause 8 the protections artists, authors, artisans and inventors needed. All U.S. copyright laws derive from that particular clause in the Constitution.
Though at times copyright law has seemed slow to keep up with new forms of publication, it has indeed addressed new concerns as they presented themselves. For example, new laws had to be written to cover phonograph recordings played by Thomas Edison’s newfangled music machine in 1877. The law wanted to make sure the artists received compensation for their efforts. Revisions over the years have tried to keep up with new developments, but just about when legislatures thought they had it done, something new came along to challenge the lawgivers.
In the meantime, the first international copyright law came into effect with the Berne Convention in 1886. Nations around the world agreed to particular copyright norms to protect artists, wordsmiths, musicians, and other creative works from piracy. All of these laws underwent revisions from time to time to accommodate developments in technology, but then came the Internet. For the first time in history people could send words, pictures, and sounds worldwide with the click of a key. At first, only the technically savvy could accomplish the feat, but year by year, month by month, it became easier to pirate music and lyrics until the situation became untenable. For advice on these matters, it is advised to consult a copyright attorney who can give you sound legal advise and maybe even represent you in any conflict.
People downloaded hundreds of songs from computer sites to portable devices like MP3 players without paying a dime, and lawsuits were brought against as Apple iTunes as a vehicle to infringement. In 1998, Congress passed the Digital Millennium Copyright Act (DMCA). A number of landmark lawsuits followed in an effort to protect copyrighted material. One example was Lenz v. Universal Music Corp (commonly called The Dancing Baby Case) in 2007 when Stephanie Lenz posted a home video of her son dancing to “Let’s Go Crazy,” on YouTube. Universal, the holder of the copyright to that song, screamed infringement. Lenz claimed fair use, a claim which the courts finally upheld in 2010.
Fair use, a doctrine in U.S. law, permits limited use of copyrighted material without first having to acquire permission from the copyright holder. Such use includes search engines, criticism, commentary, criticism, parody, research, news reporting, research, and scholarship. Such exemptions, or fair us, provides for the legal, unlicensed citation in another author’s work under a four-factor test.
According to 17 U.S. Code § 107, the four-factor test of fair use consists of the purpose of the use, whether for commercial, nonprofit, or educational purposes; the kind of work; the amount used, and: the effect of its use in the marketplace. The law also stipulates that it doesn’t matter if the work is unpublished. All protections apply.
Christina Aguilera, Katy Perry, and dozens of other musicians and managers did not have fair use in mind in April of 2016 when they asked the U.S. government to revise the Digital Millennium Copyright Act (DMCA) of 1998 to address concerns of copyright infringement on the Web. This particular legislation specifically governs access to copyrighted work on the internet. They and their managers contended that sites such as YouTube and Tumblr hold and use huge amounts of creative content that infringes on copyright and generates large profits for the sites and none for the creators of the content.
They stated that while DMCA, signed into law two decades before, could not foresee the growth of Internet technology, those companies were reaping the benefits of other people’s work that should be protected. To date, DMCA has undergone some revisions but none of them have reflected the changes specifically requested by Aguilera and the other musicians.
Indeed, the wheels of government turn slowly and most likely by the time this issue is fully resolved, another new technology will come to the fore to create a whole new set of problems. The upside of all this is that the copyright laws will eventually address the concerns over Internet piracy and give increased protection to musicians. As in many cases, new technology drives new legislation.