Hey there HASTAC world. I was pretty excited about my first post, so I’ve been debating how to frame my “hello” for a few weeks. Then I came upon a few articles about the 1994 Uruguay Round Agreement Act and Golan v. Holder. Let’s be clear—I had never heard of either of these terms. As someone who digs policy, I am so often out of the loop on the big discussions that I am reluctant to call myself a policy dork. But that’s the thing—media policy is a dense, complicated world. As I come upon cases that intrigue me, I hope to blog about them here—sharing what I’ve learned and what surprises me as I go. Maybe it will help raise some awareness of decisions being made in rooms in DC that impact users/consumers of media is unexpected ways.
There are a few pretty significant cases being considered in the world of online media, copyright, and fair use. I try to track these cases through the traditional journalistic sources (Hollywood Reporter, New York Times), the Electronic Frontier Foundation, and by following on Twitter people who follow these things even more closely than I do. Media policy fascinates me just a tad more than it frustrates me, so I keep coming back, trying to learn how government action may shape the production, consumption, and circulation of media content. For example, how do you feel about a judge deciding if your local university can offer to students enrolled in particular courses copies of book chapters or journal articles for free through its password-protected online reserves system? What about a film like Breathless, directed by Jean-Luc Godard: if you teach or enjoy film, how do you feel about Breathless—which is currently in the public domain—having its copyright restored, with all the limitations that accompany that? Or how about this one—network neutrality legislation being considered by the Federal Communication Commission may protect your rights to surf and stream whatever content you choose, preventing Internet service providers (ISPs) from distinguishing based on file size or site visited—but here’s the kicker: they will only protect that information when you access it through a wired connection. When is the last time you did that?
I came into my study of policy thinking of the FCC as brave champions of the people—advocating for the public’s ownership of the airwaves, for diversity of programming, and for ownership controls that prevent monopolistic behavior and action. Um, wow—I was really, really naïve. Despite being safely left of center in my politics, I find myself occasionally thinking such things as “Abolish the FCC! Our government is too large! Too inefficient! Too ill-informed to act rightly! Put the power back in the hands of….well, let’s see…whose hands DO I trust?”
And there’s the rub. When it comes to policy, my most conservative and reactionary of thoughts eventually brings me back to ground zero, worried about such crucial concepts as access, fair use, and intellectual freedom. Sure, abolishing the FCC may satisfy my desire to punish FCC Chairman Genachowski’s too-close-for-comfort connections to the digital giants that are trying to set our policy in their own interests [that would be Google (the “do no evil” company) and Verizon (still not sure how they became the FCCs moral barometer) who offered a plan for network neutrality that became the basis for the FCC’s own policy]. But beyond that, abolishing the FCC would not protect the concept of network neutrality, a phrase that is currently losing all meaning (or at minimum, losing the meaning to which I attribute the term). Policy operates at the level of discourse—how we use terms, who employs particular terms toward what ends, and whether these conversations become the dominant discourse—is the name of the game. The FCC may not be the real problem—perhaps the problem is that the complications presented by policy prevent loud, widely disseminated conversation about the issues.
In order to start us off with one specific policy action to discuss, here’s what I know about Golan v. Holder. In 1994, Congress passed a law, the 1994 Uruguay Round Agreement Act. This act restored the copyright to a series of works that had fallen into the public domain (a term to reference older works whose copyrights have expired—this is the point at which works can be freely referenced, employed, altered, enhanced, revised, etc.—all in the service of creative production). Congress appears to have been acting on a larger agreement, the Uruguay Round General Agreement on Tariffs and Trade (GATT), established by a set of countries through the United Nations. These efforts to bring into alignment domestic (U.S.) and international copyright policies are not uncommon. For a historical example of an international copyright disjuncture, considers an example from film history. British technology tinkerer R.W. Paul rebuilt and improved Thomas Edison’s film camera, the Kinetoscope—an action only permitted because Edison had failed to copyright his camera outside the U.S. Paul then sold his camera to directors like Georges Méliès, facilitating the aesthetic and narrative development of cinema in unexpected ways. Point being—we can’t always predict how the imposing of (or failure to impose) policy will impact production and distribution.
As a result of the Congressional action, such famous works as Sergei Prokofiev’s “Peter and the Wolf,” the British films of Alfred Hitchcock, stories by H. G. Wells, Fritz Lang’s “Metropolis,” Jean-Luc Godard’s “Breathless” and Leni Riefenstahl’s “Triumph of the Will” were granted copyright protection. After a conductor named Lawrence Golan objected to the law’s blocking of his desire to create a new work based on pieces by Dmitri Shostakovich, other artists and concerned parties joined him to challenge the law’s constitutionality. So here we are now, with the Supreme Court debating the matter.
Among the questions this case has brought up is whether copyright can be capriciously applied—one day works of Shostakovich are in the public domain and may be referenced freely, but then the next day they are not. To extend the example more clearly to the digital realm, I wonder about providing access to film in my classroom. Changes to the Digital Millennium Copyright Act in 2010 increased faculty use of film clips in the classroom, but what are the implication sof the public domain for merely exhibiting these films for students—in the classroom, through Netflix or other streaming sites, or by providing copies of DVDs? Just because Breathless is in the public domain, that does not mean Criterion cannot enforce copyright on their version of the film. But there are also deeper issues regarding how art happens. To some extent, artists always build on the works of those who came before. What is the role of copyright policy in these matters—a set of laws that are meant to protect the artist, after all. Copyright, when applied carefully, provides artists with a means to profit from their creative output. Yet as a case like Golan v. Holder demonstrates, attempting to codify artistic access opens up a variety of complicated questions.
In the coming months, I plan to blog more about fair use by discussing Cambridge University Press et al. v. Patton et al and investigate the current status of the FCC's deliberations of network neutrality, particularly as the FCCs authority over these issues had been challenged, making the discussion one about the limits of government power. I cannot claim as deep an authority as I'd like, but I can certainly offer my enthusiasm and curiosity for anyone else asking similar questions.
For more on the Uruguay matter referenced above, see this New York Times article, this Hollywood Reporter piece, and this notice of an amicus brief. And here’s more on the DMCA exemptions: this and this.