According to John Locke’s thoughts the proprietary rights for any given property stem from the work put into the final product. This logic of physical property right is being eagerly applied to intellectual proprietary rights. Copyright regulation was first born along with the invention of book printing in Europe back in 15th century. Publishers were granted privileges for copying literal works, and so unauthorized copying became illegal.
So… This was the aim at the birth of copyright legislation. An aim to prohibit unauthorized copying. Other potential uses of the works were not effectively regulated. One could take advantage of a purchased book in whatever way one wanted. The only exception of unauthorized copying. In other words, anyone and everyone had all the freedom to take advantage of a book unless copyright could limit that. Today the system has essentially turned upside down; a copyright owner has all the freedom in calling the shots on what is allowed unless the law puts (the rather few) limit on this advantage.
We have later come to face the radical expansion in resources for creative behavior and innovative uses for all content, copyrighted or not. This would be the birth of digital technology. Regulation of derivative works surely dates back to earlier years but never before has it’s logic become this ridiculed and twisted.
From the point of view of those possessing intellectual property rights a derivative work becomes reality along with unauthorized usage of use of someone’s work to recreate something new on the base of the old. This is often referred to as the free rider problem. Free riding on someone else’s property. And free riding is unethical and unfair. An author of the original work deserves to be compensated financially – yes indeed, financially – for the use of his or her effort, no matter in which context.
On the other hand… Internet has given a completely new frame to what can be considered as social media. People have been building social networks since the dawn of our time. And inside these networks social activity has given birth to a great number of wonderful things. Only a fraction of these would be financially remarkable or even aimed at being somehow financially significant. And now that internet has spread out through the world, the practice of building social networks continues, but only now in a different context – or in reality, only on a new platform. Aside from this ability to connect with your peers – whoever they are and whatever are the characteristics in any given situation – digital networks (generally TCP/IP) have made it far easier to create and modify existing content, a lot of which unfortunately suffers from the burden of copyright legislation and transaction costs.
The remix culture (as described by professor Lessig) is constantly giving birth to content that can be vastly different from the original and could include a variety of copyrighted works. If Locke’s rhetoric of author’s right for compensation of his effort would be applicable in these remixed works, the original works should somehow lessen the amount of work one has to put into remixing existing content into a final derivative work. But more than often, this is not the case at all. I will claim that modifying someone else’s work is just as hard work as creating your own. It’s effectively insignificant whether you choose pick a I-IV-V format and a tonal key to play that in or you collect a pool of existing content and turn it into something completely new. There’s no significant difference in how much work one has to put into creating a final product. How is this free riding on someone else’s work?
When put into this context, free rider problem turns out to be a problem of free work. An author has put literally no effort into creating a derivative work, but has only created the original work which serves a completely different purpose. And for this purpose the author deserves remuneration. Also, remixed works rarely attain any financial revenue and are nearly always done in the purpose of recreating content for the sake of itself. How does this justify excessive claims for 6 figure license fees?
General copyright doctrine serves the purpose of protecting capital market by relying heavily on the analogies of physical proprietary goods. And this doctrine dates back to the 18th century where there was essentially no role of technologies allowing transformative uses. Debate for justifying derivative work control is fairly one sided and only pays attention to proprietary logic withing the rules of market. Whether or not a transformed work has commercial value or not, it is more than often created and distributed for free and in the purpose of social activity. If we are to polarize the derivative work reasoning into black and white (essentially, media industry v. People), I think we should at least turn the comparison upside down. Getting paid for the work of someone else makes a little sense in everyday world.
I’ll play the common sense card right here.
