 The topic for today is the cultural theory of copyright. In the previous segment of the lecture, I outlined the premises of one variant of that approach. We now turn to some implications for copyright law of that variant. The question I'll try to answer is, if our aspirations were to foster A, opportunities for the good life, and B, the cultural conditions that sustain such opportunities, how might we adjust the law? The listed on the screen are 13 zones of possible legal reform. Items 1 through 8 involve copyright law proper. Items 9 through 11 involve alternatives or supplements to copyright. Items 12 and 13 involve other intellectual property regimes. In this segment of the lecture, I'll consider the first eight, which as I say, concern copyright law itself. In the third and last segment of the lecture, I'll consider, among other things, the supplementary implications alluded to in items 9, 10, and 11. The remainder I'll leave to another time and place. This list of possible zones of reform is meant to be illustrative, not exhaustive. It's designed to suggest how the theory might be applied, not to provide a comprehensive recipe for rebuilding copyright. The first doctrinal implication is probably the most obvious. Copyright law affects education in countless ways. We should adjust and apply the law so as to enable, not interfere with, the kind of education I sketched and advocated before the break. For example, in lecture number eight in this series, I discussed the provision of the U.S. Copyright Statute that attempts to facilitate distance learning. We saw that that provision, popularly known as the Teach Act, is almost completely ineffective in practice. Its limitations are so severe that almost no distance learning venture relies on it. Certainly, I'm not relying on it for this course. Right now, meaning the winter of 2013, the World Intellectual Property Organization is discussing a possible model provision that countries might employ in the future to enable distance education. When addressing this issue on the national or the global level, the goal should be to capitalize on the extraordinary opportunities for distance learning enabled by new technologies, without, of course, corroding crucial incentives to create educational materials in the first instance. A useful exercise in this regard might be to ask what legal reforms would be necessary to make possible an edX course, analogous to the one supported by this lecture series, but in a field where the thicket of copyrights is more dense. Constructing an edX course that focuses on law, and in particular on US law, is relatively easy because the primary source of materials, statutes, judicial opinions, and so forth are in the public domain in the United States. Developing a similar course that deals with contemporary art, for example, or a modern social science would be much harder because a much smaller percentage of the pertinent source materials are publicly available. It's worth asking yourself, which of the rules we have examined thus far in this course, would I amend in order to make such a course feasible? In particular, how would I qualify copyright owners' existing rights to control the reproduction, distribution, and public performance of their works? Here's another dimension of the same general theme. As we will see next week, most countries now have statutes penalizing the distribution and use of technologies that circumvent technological protection measures. In other words, technologies that neutralize the forms of encryption commonly used by copyright owners and others to prevent unauthorized access to or use of copies of their creations. Sometimes, those statutes inhibit education. For example, by frustrating the work of teachers and students in film studies courses. As we will see, some exceptions to the anti-circumvention rules have already been carved out so as to facilitate education. We can and should create more such exceptions. Both of the possible reforms I've discussed thus far would curtail the entitlements of copyright owners. But enabling education does not always point in that direction. Sometimes it might be achieved by strengthening the rights of copyright owners. For instance, as we saw in election number eight, software firms frequently strive to separate the set of potential purchasers of their products into at least two groups, commercial users and educational users, and then to charge much higher prices to the former than to the latter. Here are two examples you've seen before. Of course, the reason that firms do this is to increase their profits. They're not altruistic. Differential pricing of the sort they've discovered is lucrative. But it also redounds to the benefit of education. Many more students and faculty are able to obtain and use application programs if the firms are able to maintain these practices than if they are not. Viewed to the lens of the cultural theory I've outlined, that's something we should applaud and preserve. How? By adjusting legal doctrines to help the software firms engage in this behavior, more specifically, by defending the rules that inhibit arbitrage, which corrodes such differential pricing systems. One such rule, we saw, is the interpretation of the first sale doctrine adopted recently by the Court of Appeals for the Ninth Circuit in the Autodesk case. That interpretation enables software firms by characterizing their transactions with their customers as leases of copies of the programs rather than as sales of copies of the programs to suppress secondary markets in the copies they provide to students and teachers. And that, in turn, will enable the firms to keep the prices of those educational copies low. And that's what we want. I hasten to add that there may be other implications or applications of the Autodesk ruling that we should be less happy about, but this one seems commendable. A less obvious, more general application of cultural theory concerns the idea-fact expression distinction that, as we saw in lecture number one, underlies the copyright systems of every country in the world. Copyright law, as you now know, does not protect either ideas or facts. It only protects original ways of expressing those ideas and facts. Many applications to this principle are straightforward. To take an immediate example, the somewhat heretical claim I made a few minutes ago, namely that the Autodesk decision may be consistent with a cultural theory of copyright, is an idea. You are thus free to describe that idea to anyone else in any medium, provided that you use your own words to express it. But you may not, without my permission, use the sequence of words that I employed to express the idea. Now, in reality, as you know, I have already given permission for many uses of my exact words through the Creative Commons licenses under which these lectures are distributed, but ignore that fact for the purposes of this illustrative hypothetical. Even though the general principle is clear enough, applying it in borderline cases is sometimes difficult. For example, what if the particular way in which I have expressed the defensibility of Autodesk is the only efficient way of expressing that idea? Then may you use my exact words? Yes, under the merger doctrine. What if my language is not the only efficient way of expressing the idea, but one of a small set of efficient ways? May you use my formulation? Not so clear. Here's another edge case. In the previous lecture, I described the facts of the Harper and Rowe decision in which Victor Navaschi took some 300 words for President Ford's autobiography. Among the most distinctive phrases lifted by Navaschi were those in which President Ford described his deliberations concerning whether to pardon his predecessor, Richard Nixon. An illustrative excerpt from Navaschi's article is set forth on your screen. In justifying the pardon, Ford goes out of his way to assure the reader that, quote, compassion for Nixon as an individual hadn't prompted my decision at all. Close quote. Rather, he did it because he had to, quote, get the monkey off my back one way or the other. Close quote. The language that appears in bold and in quotation marks was taken from Ford's book. The remaining language was Navaschi's. Just as Brennan, dissenting in this case, contended that two aspects of the copyright system should have been construed so as to afford Navaschi some latitude. First, says Brennan, some leeway must be given to subsequent authors seeking to convey facts because those wishing to express the ideas contained in factual works often can choose from only a narrow range of expression. Second, Brennan contended that, when evaluating the fair use defense, weight should have been given both to the factual character of the plaintiff's work and to its public importance. But even Brennan did not challenge the claim that, quoting 300 of Ford's words in this way, constituted a prima facie violation of section 106.1 of the statute. Justice O'Connor, writing for the majority, was even less forgiving. Here's her language. The nation has admitted to lifting verbatim quotes of the author's original language totaling between 300 and 400 words and constituting some 13% of the nation's article. In using generous verbatim excerpts of Mr. Ford's unpublished manuscript to lend authenticity to its account of the forthcoming memoirs, the nation effectively irrigated to itself the right of first publication an important marketable subsidiary right. Viewed through the lens of the cultural theory I have outlined, this is troubling. Participatory political democracy, as we've seen, is one of the fundamental features of an attractive and stimulating society. Political democracy is only possible if the citizenry is informed. It's hard to imagine an issue more central to political debate and engagement than the precise reasons why one president decided to pardon another president for a crime. Copyright law already contains a device that would have enabled the Supreme Court to respect this consideration. Language of the sort lifted from the manuscript by Novasky could quite plausibly have been described as a fact. Generalizing the point, we, or the Supreme Court, could have declared that any language or material essential to political deliberation and civic engagement was either a fact or an idea, and thus a for grabs in the political arena. That would have left Novasky off the hook without needing to reach the fair use doctrine, and the result would have been to encourage journalists in the future to make more widely available analogous utterances by major public figures. Here's another example of the same point. You'll recall, I hope, our discussion in lecture number six of the case that considered whether Martin Luther King complied with the statutory formalities established by the 1909 copyright statute when delivering his I Have a Dream speech on the Washington Mall. Held, King had complied with those formalities, and thus his estate could continue to assert a copyright in the speech. Again, viewed through the lens of cultural theory, that outcome is problematic. Broad public access to the extraordinarily powerful language in which King expressed his vision of civil rights would foster democracy and civic engagement. Refraising this consideration in the language of copyright law shouldn't the text of the speech now be considered a fact. This principle need not threaten the core of copyright law. What type of candy Kramer dropped into the body of a patient during one episode of The Seinfeld Show does not constitute a fact. But statements by public figures essential to deliberation and civic engagement should be. A more radical extension of the same general approach would entail denying copyright protection to materials to which subsequent authors must have access in order to express themselves effectively. That principle arguably already underlies not only the merger doctrine but also the sans affaire doctrine, which as we've seen denies copyright protection to images or scenes that are, as a practical matter, essential to work within a particular genre. The merger and sans affaire doctrines have cousins elsewhere in intellectual property law. For example, in the rule that trademarks lose protection when they become generic and in the nominative use of defense, also in trademark law. If we interpreted or supplemented merger and sans affaire this way, we would deny copyright protection to works or aspects of works that subsequent speakers need to be able to speak effectively. For example, we would permit historians and appropriation artists to use news photos that they could not have taken themselves. By contrast, if we were persuaded by the logic of the Bridgeport Music case, we would not permit rap artists to sample sound recordings without permission because, as you now know, the law, at least in the United States, permits rap artists and others to recreate those recordings in the studios and thus they do not need access to the originals in order to work effectively. Next topic. As you know by now, there are two general regulators of the scope of copyright in the United States. The first is the idea-fact expression distinction which we have just reconsidered from the vantage point of cultural theory. The second is fair use. How might cultural theory illuminate fair use? You will recall, I hope, that when we were discussing welfare theory in lecture number four, I suggested that each of the various entitlements that might be assigned to copyright donors could be evaluated on the basis of a ratio, the numerator of which is the economic benefits that entitlement would provide to creators and thus the incentive it offered to creativity and the denominator of which is the social losses that entitlement would cause. Generally speaking, we would like to assign two copyright owners entitlements that carry with them high ratios, i.e., that, to use Lewis Kaplo's words, give us a big bang for our buck and we would like to deny to copyright owners entitlements that carry with them low ratios, in other words, that cause social welfare losses that are large compared to the economic benefits they confer on copyright owners. The fair use doctrine offers one device we might employ for this purpose. We could declare to be fair unauthorized uses that encroach on entitlements that have low ratios and declare to be unfair unauthorized uses that encroach on entitlements that have high ratios. A modified version of this methodology might be employed if our beacon were cultural theory rather than welfare theory. Specifically, we could declare to be fair unauthorized uses that encroach on entitlements that provide copyright owners modest benefits but erect substantial impediments to the pursuit of a just and attractive society. On the other hand, we could declare to be unfair unauthorized uses that encroach on entitlements that impede the good society in ways that are modest compared to the benefits they provide to copyright owners. Here's an easy example. Commentary and criticism are culturally beneficial for many reasons. They help consumers determine which books they wish to read or which films they wish to watch before they waste time sampling them. Equally important, engagement in commentary and criticism isn't livening, and we should look for opportunities to facilitate it. That in turn suggests that copying copyrighted materials for the purposes of commentary and criticism should be privileged under the Fair Use Doctrine. Copying for parody would be an especially clear-cut case. As you know, parody is, as a practical matter, privileged in the large majority of cases in the United States, but not all countries are as lenient in this respect. They should be. Here's a harder example. You'll recall from the preceding lecture that the meaning of the crucial term transformative and U.S. Fair Use Doctrine is currently unclear. An interpretation of that term that associates it with physical modifications has fallen out of favor. But two other interpretations in which transformative is translated as socially beneficial and in which it is associated with cases where the purpose of the defendant's work is different from the purpose of the plaintiff's work currently contend. Some scholars and judges favor neither. When I summarized this debate, I suggested that there is a fourth possibility. The term transformative could be translated as creative. This was the interpretation I offered many years ago in an essay on Fair Use, and I continue to think it's the best one. The defendant's work should be treated as transformative if and only if it's creative, somewhat more specifically, if it either constitutes or facilitates creative engagement with intellectual products. All of the cases that fall within the green ellipse on your screen involved uses that fit this definition. All, consequently, should have been deemed transformative, which would likely have led to findings that they constituted fair uses. To be sure, this proposed interpretation of transformativeness would not be a panacea. Although it would increase the coherence and thus the predictability of the doctrine, it would still call upon courts to make difficult decisions concerning degrees of creativity. This would be especially problematic in the context of motion picture adaptations of novels or stories. How creative would they have to be to escape liability if unauthorized? A guideline that might help when addressing such questions would be that movies that retell in a different medium the same story told in the original novel would be insufficiently creative to constitute fair uses, whereas movies that told different stories would be deemed fair. So, for example, the Harry Potter movies would require licenses while Apocalypse Now would not, on the assumption that part of darkness were still in copyright. But one can readily imagine intermediate and thus harder cases. In sum, construing transformative as creative would help to reorient fair use, but concededly would leave many issues unresolved. Acceptance of this suggestion would increase the set of circumstances in which defendants could successfully invoke that fair use doctrine. But the theory I've outlined does not always push in that direction. In particular, viewed from the perspective of the theory I have sketched, consumptive as opposed to transformative uses of copyrighted materials do not merit as much solicitude as the courts have sometimes given them. Recall Justice Blackman's comment in the Betamax case. The situations in which fair use is most commonly recognized are listed in section 107 itself. Fair use may be found when the work is used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Each of these uses reflects a common theme. Each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work. The fair use doctrine, in other words, permits works to be used for socially laudable purposes. I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use. I am much of his mind. While the productive, in other words, creative uses of copyrighted materials deserve lots of scope, consumptive uses, in other words, uses for the sole benefit of the user, do not. Adoption of Blackman's position would lead to another heretical result. The declaration in the Betamax case that time-shifting broadcast TV shows and films is a fair use might well have been wrong. But hold on. Wouldn't adoption of Blackman's position have doomed VCRs? No. It probably instead would have resulted in a voluntary royalty system. Purchasers of VCRs would have paid a premium, which in turn would have been paid to the owners of the copyrights and the taped shows and films. This would have caused an increase in the cost of VCRs and that cost might well have reduced somewhat the pace at which this technology spread first in the U.S. population and then globally. But from the standpoint of the cultural theory offered here, that would not have been so terrible. A final comment about fair use. At the end of the preceding lecture, I suggested that the U.S. version of the fair use doctrine suffers from a fundamental defect. It sets forth a set of four factors the judges must consider but does not indicate why those factors matter. The judges, called upon to apply the doctrine, thus must decide for themselves what the goal of the copyright system is and then construe the factors to advance that goal. Application of the doctrine is thus very hard to predict in advance. Adoption of the approach outlined in this lecture could address that defect. If lawmakers were willing to articulate a vision of the sort offered here and tie fair use to it, the result would be to reduce considerably the notorious uncertainty of this dimension of copyright law. Let's now move on to the sensitive subject of moral rights. When set against the backdrop of cultural theory, one aspect of moral rights is suspect. The right of integrity. As you know, the right of integrity when fully implemented protects artists and authors from the destruction or mutilation of their works. The result, inevitably, is to curb the interests of the people we used to call consumers to remix their creations. Artist's interest in self-expression of course deserves considerable respect and protection, but perhaps not as much as some jurisdictions particularly in continental Europe currently afford them. In some context, the artist's interest may have to be tempered by legal recognition of the equally important interests of consumers in self-expression and the overall cultural importance of semiotic democracy. With respect to unique or limited addition works, perhaps preservation of the current regime is unbalanced sensible. No one should be permitted to melt down or desecrate one of the few castings of Rodin's thinker. But when copies of a work are not scarce, modification and remixing should be freer. An example would be colorization of black and white movies. So long as copies of the original film remain available, we should tolerate, even encourage, the creation and dissemination of colorized versions. Other dimensions of moral rights, however, would be to use scrutiny from the standpoint of cultural theory. The right of attribution, for example, seems closely tied to the fundamental human need for self-expression, the ability to project one's identity into the world and to be recognized by others. Requiring recognition of that sort would not materially impair the opportunities for remixing and secondary creativity. One doctrinal adjustment that could accommodate this insight would be to add to the U.S. fair use calculus a requirement like that currently in the United Kingdom's fair dealing system. Namely, a duty to give credit where credit is due. Libraries contribute importantly to public education, defined expansively, as was suggested in the previous segment of this lecture. Thus, we should be skeptical of aspects or applications of copyright law that make it harder for libraries to operate. An example would be public lending rights, which exist in Europe, but as yet nowhere else. Such rights give copyright owners the ability to collect fees from libraries. If the libraries are able easily to pass along the cost of those fees to governments, which in turn pay for them out of general tax revenues, then the net result may not be bad. Indeed, it may give rise indirectly and inadvertently to a form of governmental funding for education. But in most developing countries, governments would not be able to absorb these costs, and thus the adoption of public lending rights would seriously burden libraries and likely force some of them to curtail their operations. That would be plainly inconsistent with a cultural theory and should be resisted. The functions traditionally assumed by libraries are increasingly being assumed by other organizations. An example is Google, which sought in its ill-fated Google Print Library project to make all books published in the world widely available in digital form. This was a highly commendable ambition. To be sure, there were opposing considerations, most obviously the interest of the authors and publishers in being appropriately compensated. The best way of reconciling these goals was far from obvious, but one maneuver was promising. Orin Braka proposed that we accept in this particular setting an opt-out rather than an opt-in rule. In other words, Google or other organizations should be permitted to digitize books and make the digital versions publicly available unless and until the copyright owners object. Shifting the burden to the copyright owners would have huge social benefits. Most importantly, it would enable widespread distribution of so-called orphan works. Works that may still be in copyright, but whose owners cannot be readily identified. Opening up all such works for public use, unless and until the owners made themselves known and objected, would do much to facilitate the dissemination of knowledge critical to a good society. And the burden on copyright owners would be slight. This brings us to formalities. In lecture number six, I suggested that many scholars now believe that the modern trend of abolishing formalities as preconditions to the acquisition or enforcement of copyrights is regrettable. The cultural theory sketched here suggests some of the reasons why. By granting copyrights automatically to creative works, we needlessly limit the scope of the public domain. And by failing to require compliance with a comprehensive registration system, we needlessly frustrate many potential licensing deals that would enable socially beneficial activities. Cultural theory can also lend some support to the shaky arguments I discussed at the end of lecture number eight in favor of compulsory licenses. Specifically, two kinds of compulsory licenses look somewhat better when viewed from this angle. Those that enable modifications of copyrighted works provided that the modifiers pay a governmentally set fee. And those that give a break to educational activities, such as public broadcasting. The former, such as the cover license in section 115, had the effect of increasing the diversity of cultural products available to the public. Think of the richness of the menu of renditions of classic musical compositions that the cover license has enabled. The latter, of course, facilitate education broadly conceived at an informed citizenry. A few minutes ago, I mentioned an example of differential pricing, specifically in the context of educational discounts for software. I now want to return to this issue and address it more broadly. Differential pricing of copies of copyrighted works is a very complicated subject when viewed from any angle. Assessed from the standpoint of cultural theory, it offers some intriguing possibilities, but also poses some dangers. The principal opportunity is that differential pricing can have the beneficial effect of equalizing access to entertainment and informational products across income classes and countries, and thus promotes the kind of distributive justice that figures importantly in cultural theory. This possibility is suggested by the facts of the Kurtzang case, which, as you know, is currently before the United States Supreme Court. Supap Kurtzang is a student who finances education in large part by persuading his relatives, living in his native Thailand, to purchase inexpensive copies of textbooks that had been manufactured and sold in Thailand and shipped them to Mr. Kurtzang who was then studying at Cornell University and upstate New York. The large differential between the price at which the books were being sold in Thailand and the retail price in the United States enabled Mr. Kurtzang to make a healthy profit selling the books on eBay for somewhat less than the US list price. The issue currently before the Supreme Court where John Wiley, the owner of the copyrights in the books, should be able to stop this practice. Admiration for Mr. Kurtzang's entrepreneurial spirit and unease concerning the magnitude of the damage award to which he has exposed, if he loses, suggests the answer should be no, but consider what will happen if Kurtzang prevails. Publishers feeling generalizations of his conduct will almost certainly reduce the price differential between the US and poorer countries, thus rendering arbitrage the sort he engaged in less attractive. The publishers could achieve this by lowering the US retail price, but for obvious reasons that's unlikely. Instead, they will probably raise prices in Thailand and other developing countries. The result is that the residents of those countries will face higher financial hurdles when seeking education. Assuming that we wish to apply our cultural theory on a global scale, this is an unattractive outcome. For similar reasons, we may wish to acquiesce in the technological protection measures that help film studios engage in so-called region coding of DVDs and now Blu-ray discs. The effect of those systems is that the discs sold in one region cannot be played on players that are sold in a different region. One of the goals of such systems is to enable the studios to sell discs at lower prices in poorer regions than in richer regions without fearing importation of the cheap versions into the wealthy regions. From the standpoint of distributive justice, it seems a good thing, not a bad one, but differential pricing is not an unalloyed good viewed from the standpoint of cultural theory. It has at least four potential drawbacks. First, it sometimes results in a constriction, not expansion of the set of people to whom the good at issue is provided. This all depends on the shape of the demand curves in the subdivided markets. Second, as Wendy Gordon observes, differential pricing can increase what she calls the granularity of social life, the sense that all of our conduct triggers microcharges. Third, as Yochai Benkler and Eric von Hippel contend, differential pricing can corrode a culturally beneficial practice and spirit of altruistic sharing, in other words, giving away your stuff for free. Last but not least, the dream that currently bedazzles many copyright owners of slicing their markets ever more finely creates a powerful incentive to collect extremely detailed information concerning the habits, incomes, and wealth of those customers. The result is a serious risk to privacy, one of the conditions that, as you know, figures in our vision of the good life. How can we balance these competing considerations? No blanket solution is readily apparent. The set of rules governing differential pricing, that, all things considered, is most conducive to the good society, unfortunately, varies by context. This concludes our examination of the possible implications of the particular variant of cultural theory that I have outlined here for the reform of copyright law proper. After the break, I'll consider a few ways in which the same theory might be applied outside copyright law, and then consider some overall objections to this whole approach.