Copyfraud, the Corporation, and College Publishing

This posting is motivated by Jason Mazzone’s paper “Copyfraud“, where he investigates copyfraud.  Copyfraud is defined as “claiming falsely a copyright in a public domain work” (3) and after discussing instances that copyfraud is both perpetrated he reflects on ways to alleviate it. Mazzone, an American, generates his account from within the American political and judicial system but his insights can be generally applied internationally to any nation that either accommodates or has adopted US and British copyright principles.

Copyright is intended to let authors receive financial compensation for the works that they create. In the US, copyright exists in an antagonistic relationship with the First Amendment because it limits how people can use words that they have received – an author’s speech cannot be used wholescale by others when they generate their own creative works that are derived or inspired by the author’s work. The only exception to this limitation stem from fair use policies, which assert that small parts of a copywritten work can be used to facilitate discussions between writers/performers. Fair use, however, is a protection that is being banished by corporate groups that are striving to protect their profits and avoid lawsuits rather than encouraging the growth of the public domain.

Works in the public domain are more and more often having copyright illegitimately attached to them. No one, for example, can claim to have copyright on Shakespeare’s ‘A Midsummer Night’s Dream’, though if you purchase an anthology of Shakespeare’s work you will commonly see a generic copyright asserted by a publisher that encompasses the text’s entirety. In addition to these broad disclaimers, many texts also contain statements that resemble the following:

“[N]o part of this publication may be reproduced
. . . in any form, or by any means . . . without the prior written
permission of both the copyright owner and the . . . publisher.” (24, Copyfraud)

The above quotation effectively removes the possibility of reproducing any element of a text, and has several effects: (a) it slows the rapidity of intellectual discourse and disagreement; (b) it places considerable burdens on authors because they have to receive permission from a publisher before using even small quotations from another work in their own; (c) following from (b), if the publisher wants to prevent criticism of a work that they have published they can theoretically prevent critical analysis or reviews of their work by refusing to let others copy use sections of their text. This would let publishers control and, in some cases, terminate public discourse about works that could be prominently influencing effects in the public following its publication.

Mazzone notes that while access to text is usually not too challenging (save for when an old text is located in a lone archive – archives often assert they hold copyright of their texts simply because they have a physical copy) access to film and audio can be incredibly challenging. When only a single master-copy of a film exists, even if that film happens to be in the public domain, the owner of the master-copy can charge prohibitive amounts of money just for access to the media. Moreover, the owner can (and often does) require the rebroadcaster to agree to a contract that prevents others from reproducing the reproduction of the original. Since this agreement is reached through contract law, a copyright is never explicitly asserted, even though the contract has the same effects. In light of these issues film and entertainment lawyers routinely encourage their clients to avoid including previously broadcast film – new documentaries should, at the most, talk around past film instead of directly engaging with it. This, again, limits the range of public discourse. The mass media is an exemplary way of diffusing information and generating discourse, but if film, television, music, magazines, and books are all prevented from engaging with contemporary, let alone historical, expressions then the vibrancy of the cultural, political, and legal narrative is dulled.

Mazzone then proceeds to talk about ways of remedying copyfraud, such as legislating harsh penalties for publishers that engage in copyfraud, allowing civil reparations, and offering bounties to individuals that identify cases of copyfraud. While his ideas differ in their chances of practical application they are interesting and, in some cases, novel ways of resolving copyfraud.

What I find interesting is that copyfraud is increasingly asserted in corporate and university publications. Corporate publications, in this sense, include instructional manuals that oftentimes take swathes of other corporations’ text, images from the public domain, and/or quotations that are centuries old. A blanket copyright claims all of these public items as the corporation’s own. In addition to this (and perhaps something that strikes closer to home for me) university publishers  are increasingly asserting that even other academics cannot reproduce bits of text without the university publisher’s permission. If there has ever been a clearer indication that universities are transforming into their own corporate entities, their stance towards copyright is one of them. Rather than behaving as a zone of relatively free speech and open discourse, universities are training professional academics and students that it is better to pay a licensing fee for Shakespeare, and require publishers’ permission before reproducing text, than run the risk of facing baseless legal action. Conservatism, in this sense, is pervading the academy and threatens to limit the scope of discourse in some cases and in others eliminate it entirely.