Cory Doctorow of Boing Boing fame has a story in the Guardian (here) yesterday about distinguishing between cultural and commercial uses of copyrighted material. He makes a good case for creating an exception in the law for low end cultural use of copyrighted material, stuff that goes on everyday that’s tolerated by everyone because there’s really no benefit to going after violators. Of course, this would never be a problem if we didn’t have the internet to distribute all this material to millions of people.
Through most of copyright’s history, we had two de facto systems: industrial regulation (governing what big companies did with each others’ stuff) and folk-copyright (the rules of thumb that most of us understood to be true).
[...] We need to stop shoe-horning cultural use into the little carve-outs in copyright, such as fair dealing and fair use. Instead we need to establish a new copyright regime that reflects the age-old normative consensus about what’s fair and what isn’t at the small-scale, hand-to-hand end of copying, display, performance and adaptation.
This makes sense to me for a couple very important reasons. Your average citizen doesn’t understand or care about copyright and when an overhaul comes in the form of either a vote or some type of legislation we’re going to have a hard time convincing people that they shouldn’t do what they’ve always done. Also, giving up low end fan violations will prevent the erosion of fair use and keep other less desirable uses from getting in that door.
It’s worth noting, then, that early in the history of photography a series of judicial decisions could well have changed the course of that art: courts were asked whether the photographer, amateur or professional, required permission before he could capture and print an image. Was the photographer stealing from the person or building whose photograph he shot, pirating something of private and certifiable value? Those early decisions went in favor of the pirates. Just as Walt Disney could take inspiration from Buster Keaton’s Steamboat Bill, Jr., the Brothers Grimm, or the existence of real mice, the photographer should be free to capture an image without compensating the source. The world that meets our eye through the lens of a camera was judged to be, with minor exceptions, a sort of public commons, where a cat may look at a king.
[...] A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. In this regard, few of us question the contemporary construction of copyright. It is taken as a law, both in the sense of a universally recognizable moral absolute, like the law against murder, and as naturally inherent in our world, like the law of gravity. In fact, it is neither. Rather, copyright is an ongoing social negotiation, tenuously forged, endlessly revised, and imperfect in its every incarnation.
The bottom line here is that it’s not going to be long before we see either legislation or a court ruling and photographers need to do whatever they can to achieve the best possible outcome.