Lastowka Digital Attribution Rough Draft of

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Lastowka – Digital Attribution Rough Draft of 7/11/2018

Digital Attribution:
Copyright and the Right to Credit

Greg Lastowka

Introduction: Ralph Shaw 1

I. Copyright & Digital Networks 5

II. Laws of Credit & Attribution 25

III. A Proposal for Modifying Fair Use 51

Digital Attribution:
Copyright and the Right to Credit

Greg Lastowka*

If [a publisher] does not sell copies at a profit, he will soon be an ex-publisher. The author, however, may be interested in the widest possible dissemination of his writings, and if someone were willing to reprint 10,000 copies of his articles for free distribution, that would provide a great additional profit to the author in terms of professional credit.

-- Ralph R. Shaw1

Introduction: Ralph Shaw

The above quote is taken from a May 1951 article in the magazine Science, entitled “Copyright and the Right to Credit.”2 In the article, Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for “free distribution.” Of course, since he had just pointed out that no sensible publisher would be interested in giving away free works, the example he used to demonstrate these divergent motivations was fanciful.

Ralph Shaw was a librarian, not a lawyer. 3 He was interested in information science, of course, but he also pursued various other projects. One of those projects was advancing the technologies of information storage and retrieval. Notably, Shaw was instrumental in funding one prototype version of Vannevar Bush’s “Memex” machine, often referenced today as the conceptual predecessor of the World Wide Web.4 The “Rapid Selector” that Shaw and Bush developed together was a mix of circuitry and microfilm that was about the size of a car. It reportedly could process 10,000 frames of text each minute, finding and copying selected references.5 The unveiling of this “electronic marvel” was reportedly attended with substantial publicity.6

But both of these projects described here—Shaw’s attempt to get copyright to incorporate a right to credit and his attempt to revolutionize information dissemination and retrieval practices with new technology—did not pan out very well. The logic of copyright law continued to be guided by the interests of publishers, not of authors. The Rapid Selector project was largely a failure due to technical problems.7 As it turned out, the future of access to information lay not with microfilm, but with a highly unlikely (for 1951) candidate: the behemoth calculator ENIAC, a $500,000 monstrosity that had the primary task of working on firing tables for U.S. artillery shells. ENIAC was obviously not part of a network and its information storage capacity was limited to a miniscule (by today’s standards) 16K of memory.8

However, the Memex that Shaw and Bush sought to create turned out to be ENIAC’s descendant: the World Wide Web, which delivers a hyperlinked high-speed information environment that Shaw and Bush could not have imagined. With the advent of the World Wide Web, authors are now giving away thousands—even millions—of free “reprints” and realizing “a great additional profit… in terms of professional credit,” just as Shaw predicted.9

However, copyright law has largely ignored this fact. Shaw’s “right to credit” is still as much a fantasy as the World Wide Web was half a century ago. This article takes up Ralph Shaw’s call for a right to credit in a new era of networked information systems. Copyright law should be adjusted to take into account the growing importance of open access forms of copyright creation—a term I’ll shorten here to “open copyright”10—and reputation economies. Prioritizing the legal importance of attribution in copyright is a change that is long overdue. The contemporary digital environment provides an opportunity and an important additional reason to revisit Shaw’s salient distinction between the motivations of authors and publisher.

This article proceeds in three sections. In the first section, I describe the ways in which copyright has so far responded to this “digital dilemma.” I point out that the dilemma is often overplayed in Washington and conceived of in the wrong terms. Despite the fact that open copyright has played a key part in the social utility of the World Wide Web, the law has largely ignored its impact, focusing instead on the perspective of publishers. I explain why the phenomenon of open copyright is not primarily an ideological agenda, but a market transformation. Attribution and social reputation markets are essential to many who create in this environment.

In the second part, I look at how intellectual property law addresses authorial attribution interests. I begin with an extended discussion of advertising and law, drawing parallels between open copyright and advertising. I then move on to copyright and trademark law, noting that protections for authorial attribution are as sorely lacking today as they were in Shaw’s day. I conclude by noting how, despite the formal deficit in statutory intellectual property law, there are hopeful signs that a new interest in authorial attribution is emerging.

Finally, in a third part, I suggest one concrete proposal for adapting copyright to better fit online reputation economies. I propose formally including attribution as a fifth factor in the statutory fair use analysis under 17 U.S.C. §107. There are a handful of cases that consider attribution and fair use, but I argue that attribution deserves specific mention in the statutory language regarding fair use.

  1. Copyright & Digital Networks

    1. The Digital Dilemma & Legal Responses

During the last decade the costs of information capture, replication, manipulation, and distribution have been reduced dramatically by widespread digital tools and networks. Yet in copyright policy circles, this change has (perhaps strangely) been framed not as a social boon, but as a “digital dilemma” facing the law of copyright.11 The perceived problem is that with more powerful and less expensive technologies, the public has greater power to infringe copyrights by reproducing and disseminating works. Even highly dense and complex audiovisual information objects such as Hollywood films are now being subject to unauthorized transmission and replication through digital networks. Many of those in the copyright industries regularly express dismay at the extent to which their enforcement efforts are failing to prevent rampant digital piracy. Reports of copyright piracy can be found practically every day in the news media.12

Copyright holders have attempted to respond to the “digital dilemma” in several ways. First, they have lobbied for and obtained stronger copyright laws. These laws are intended to send stronger deterrent signals to potential infringers. Criminal penalties for copyright infringement have been increased. The No Electronic Theft Act is one prominent example.13 A second response has been the employment of extra-legal technologies and contractually-based practices to achieve copyright-related outcomes that cannot be achieved through the law of copyright.14 The use of “digital rights management” (“DRM”) today often constitutes an attempt to achieve practical results through technology that effectively mirror or extend the proprietary rights envisioned by copyright law.15

Additionally, new laws have been created to respond directly to the digital environment.16 The Digital Millennium Copyright Act (“DMCA”) is probably the most well-known example of a law that creates a new breed of para-copyright entitlements.17 The anti-circumvention provisions of the DMCA effectively combine with the DRM controls described above to create what James Gibson has described as a “technolegical” system of copyright.18 In other words, the DMCA’s anti-circumvention provisions protect the integrity of the digital protections that enclose and encode works.19 Many legal scholars and public interest groups have criticized these technolegical protections as operating in ways that are contrary to the public interest.20

During the last two decades, the success of digital copyright reforms has been debatable. The new technolegical wave of copyright has generally been popular and resilient in legislatures and courtrooms.21 Yet news stories suggest no abatement in digital piracy—things are said to be getting constantly worse for the copyright industries. Academic commentary, on the other hand, has become increasingly critical of expansions in the strength of copyright law and has pointed out how the public interest in copyright law has been largely ignored by lawmakers.22

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