We need a different copyright for individuals

In my new Guardian column, "Copyright law should distinguish between commercial and cultural uses," I argue for a new kind of copyright law, one that mirrors the "folk copyright" that individuals have lived by for decades -- the alternative is to try to get kids and fans to participate in the "real" copyright, a system of industrial regulation so complex that it can barely be understood by full-time copyright attorneys.
This is a genuinely radical idea: individuals should hire lawyers to negotiate their personal use of cultural material, or at least refrain from sharing their cultural activities with others (except it's not's really culture if you're not sharing it, is it?).

It's also a dumb idea. People aren't going to hire lawyers to bless the singalong or Timmy's comic book. They're also not going to stop doing culture.

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.



  1. As Voltaire said, “In the best of all possible worlds…” But as you said, it’s a radical idea. Radical ideas do catch, at times. But not if lawyers are going to lose money in the process. Lawyers make the laws.

  2. My grandmother had this great old Sears catalog that she used as the base material for a newspaper clipping book that was notorious in my family. (I wrote fiction about it here.)

    Nowadays, such a relic would technically be against copyright law!

    What riles me most: this will keep future people from seeing similar stuff.

  3. What does a folk copyright cover and what does it not cover? It’s the first time I’ve heard the term. As a writer, photographer and developer, I not particularly fond of working hard to create intellectual property and then have it used/stolen/ripped off, etc. without my permission and/or without payment. Or, are you talking about a different model?

  4. Everyone getting their own lawyer is indeed a dumb idea. It’s an equally dumb idea to tax everyone–even deaf people!–for music they don’t even listen to.

    The contrast between the hard-core, great-souled technologists who develop FOS software, on the one hand, and the entire music industry on the other has never been more notable.

    The industries that are based on uncopyable bits are dead. They can propose all the taxes on deaf people they want, and all they will do is delay their inevitable decline at some cost in other people’s misery.

    But somehow, I think music will still be made, as a new generation of musicians grows up without the enormous sense of entitlement of the current crop. The next generation’s musical superstar will look a lot more like Linus Torvalds than Prince.

  5. What we need are judges and governments who say “That’s BULLSHIT! You can’t copyright_____!”

    Otherwise, we are going end up with some like Microsoft copyrighting 1 and 0.

  6. This is interesting! I was just talking about something similar in an interview I’m doing with the folks over at Bostodelphia.

    What I’ve been looking for is a license that would allow individual artisans to copy and sell my designs but bar corporations from doing so.

    I think I’ve settled on a Creative Commons, Non-commercial, Attribution, Share-alike license and I’ll use the extensibility of the CC license to add a specific commercial exception for individual craftspeople.

  7. This reminds me of an excellent article by Jonathan Letham for Harpers about this very thing. He writes that art exists in a market economy and a gift economy and says, “We in Western society are going through a period of intensifying belief in private ownership, to the detriment of the public good. We have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for their private gain.”

    A few other notable quotes from that article:
    “The primary objective of copyright is not to reward the labor of authors but “to promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.”

    “Contemporary copyright, trademark, and patent law is presently corrupted. The case for perpetual copyright is a denial of the essential gift-aspect of the creative act. Arguments in its favor are as un-American as those for the repeal of the estate tax.”

    “Art is sourced. Apprentices graze in the field of culture.”

    “Digital sampling is an art method like any other, neutral in itself.”

    For those that don’t already know, the true cleverness of this article comes at the end.

  8. For some reason, the idea of the little boy photocopying an issue of Spiderman and selling it to his friends didn’t ring true to me as a parent.

    Much more likely was writing and/or drawing his own Spiderman story (and maybe selling it to his friends). Equally a copyright violation, but much more common.

  9. Copyright law has gotten further and further from the intent that justoneguy aludes to. Steamboat Willie SHOULD be in the public domain now. I blame the big corporations such as Disney. And Sonny Bono.

  10. How about this as an alternative: Only a living human can hold copyrights; not corporations or other artificial beings? The fact that corporate entities have all the rights of actual people, with apparently none of the accountability I find quite appalling. At the very least, these large companies would have an incentive to keep at least one person besides the CEO employed.

  11. 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).

    This is misleading. Copyright (at least in the US) was historically not expansive or intrusive enough for a “folk-copyright” to develop.

    After all, for the majority of the history of copyright (usually dated to 1710), copyright was narrowly interpreted, had rigid registration requirements (until 1978), did not cover derivative works (until 1870), any sorts of recordings (until 1909, well after music boxes and player pianos), or public performances (1865 or 1909, depending on genre.)

    Really, the massive expansion of copyright is a phenomenon of only the last thirty years. Perhaps the term “folk-copyright” should be similarly limited, to the VCR and mix-tape era?

    Historically, there were certainly a wide variety of ways of thinking about copyright, but these varied wildly, depending on the specific contexts and requirements of the people involved. Given this diversity, I’m not comfortable with the term “folk-copyright,” since I think it suggests more uniformity of thought and action than the historical record suggests.

    Readers can get a sample of some of the ways folk historically thought about copyright in

    BobP (3): It happens far less often than aspiring artists imagine.

    DLTallan (8), that’s by far the likelier scenario. Kids aren’t interested in repro technology, sales, and distribution; they’re interested in storytelling, so that’s the part they want to do.

    Adults do that too. And speaking as an editor of many years’ standing, the minute there’s a way to publish professional-quality fanfic, I have a list of authors and titles already graven on my heart.

  12. Eric Anderson (11), of course folk copyright exists. It’s what gives people the firm belief that it’s legal to copy a piece of Pre-Raphaelite art onto the cover of their church’s Easter program.

    Other highly approximate rules:

    It’s okay to take your favorite cover illustration from a book and airbrush it on your van, paint it on black velvet, render it in applique as a quilt, or have it tattooed in detail on some portion of your anatomy, as long as it’s your van, painting, quilt, or anatomy, and you’re not planning to sell it.

    You can put an image of your kid’s favorite licensed character on anything that’s just for the kid.

    It’s okay to use someone else’s setting, characters, and story continuity to write a brand-new story if you put in an acknowledgement saying the person who created the show is Ghod, you’re not making any money off your work, and you only wish you owned the characters.

    It’s okay to use someone else’s furniture design if you used to have two matching pieces, one of them got destroyed, and you’re making a new copy using the remaining piece of furniture as your guide.

    If a magazine folded years ago, it’s okay to make a half-dozen copies of some fifteen-year-old crochet patterns in one of the Christmas issues, if you know the other women in your group who’ll be using the patterns would infallibly buy the issue if it were available.

    It’s okay to copy a piece of art if you’re making party invitations or a birth announcement, but you can’t use it on an ad that’s going to run in the local newspaper.

    It’s okay to make copies from a copyrighted map if you’re only using them to make sure no one gets lost on their way to the wedding or camporee.

    If you asked someone for something, you have to get their permission to reproduce it. However, It’s okay to make copies if someone was handing it out in a public place and just shoved it into your hand without even asking whether you wanted it.

    Anything printed on a Ditto machine is fair game.

    If you found a particularly good recipe in a newspaper or magazine twenty years ago, and have been cooking it on special occasions ever since, it’s okay to have it reprinted in your family’s “Our Favorite Recipes” cookbook project. However, you shouldn’t reprint it if it’s recent and you’ve only made it once or twice.

    It is not fair use to get Great-Aunt Ida to give you the recipe she found in a newspaper twenty years ago and has been making on festive family occasions ever since, then submit it to the family cookbook project before Great-Aunt Ida has a chance to do so herself.

    It’s okay to reproduce a recipe absolutely everyone makes, like Rice Krispies Marshmallow Treats, or pound cake from a cake mix plus a pudding mix, but you can’t put those in a cookbook you’re going to sell for charity, because it’s giving poor value.

    Copyright restrictions are looser if you run off something yourself on a mimeograph or other device, and stricter if you have it printed and bound by a commercial printshop. They’re much stricter if you’re selling copies or selling ads. They’re looser if you’re a relative of the person whose work you’re using.

    If there’s a recipe someone’s locally famous for making, and they give you a copy of it, you can make it for your own family. However, if you make it for a party or potluck or organization fundraiser, you have to announce that it’s so-and-so’s recipe, and tell everyone that it’s your fault if it isn’t as good as when that other person makes it.

    If you were taught to make something by one of your grandparents or a favorite aunt or uncle, those instructions are clearly out of copyright.

    It’s okay to use any play, poem, song, recitation, humorous skit, joke, dance routine, or craft design if you’ve never seen it in print, the people around you have never heard of it, the local librarian hasn’t either, and you’re having to do the whole thing from memory.

    That’s folk copyright as I understand it.

  13. I missed the earlier response, but for the record, Teresa Nielsen Hayden (13), you misunderstand my point.

    Certainly, people reuse, recirculate, and repurpose information in the ways you describe, as well as many other ways. However, I see two problems calling this “folk copyright.”

    First, anecdote and speculation aside, there is little (or no) evidence that these people think of their actions in terms of “copyright.” And if they don’t call it that, why should we? Personally, I expect they use a variety of terms, but I’d be happy to be pointed to research on this topic.

    Second, and (to my mind, more importantly), “folk copyright” does not have the history Cory Doctorow ascribes to it. For example, reconsider your above-listed activities, in the context of the law, technology, and culture of thirty years ago. How many of these activities are even still meaningful? Of those, how many are even remotely connected to copyright in the minds of our hypothetical folk?

    Personally, I don’t think “folk copyright” exists outside the context of the massive expansion of copyright (scope and duration) of the last thirty years.

    Before this, people certainly thought about copyright, talked about it, and wrote about it (and I should know.) But it simply didn’t impact their consciousness and actions in any way that I’m comfortable calling “folk copyright.”

    In any case, to return to the original article, claiming “through most of copyright’s history, we had two de facto systems” is simply wrong.

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