Remixing Copyright Law: How Copyright Reform Can Empower Remix Creators and Internet Users

Abstract

When it comes to domestic copyright legislation for the digital age, things really haven’t changed much since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998. While the legislation hasn’t changed, our creative world certainly has. In 1998, how many of us envisioned the world of remixers and independent creators producing content of a quality once reserved for the Hollywood elite? How many of us would have imagined the creation and widespread use of an open content license like Creative Commons that allows users to share their work in unprecedented ways? How many of us thought that ordinary people would be using this new technology to create and share everything from mundane pictures of meals at restaurants to the extraordinary live tweeting of the Arab Spring? The cultural and communications landscape has changed dramatically since 1998. The evolution of our creative culture and the way we communicate deserves a corresponding evolution of copyright law. At New Media Rights, we help hundreds of independent creators and internet users every day who struggle with digital copyright questions. Specifically we also work with remix creators who arguably face some of the greatest challenges in the area of digital copyright. Their challenges shine a spotlight on the areas that copyright law must be revise to better match the digital age so we can ensure the next generation of creators and remixers are as free to create as the generations that came before them. Because while technology has changed our basic human need to create, analyze and share has not.This article addresses four of the most common problems we’ve seen in our work with remix creators and proposes potential reforms to copyright law that could solve those problems. First, we will address the lack of meaningful safeguards against overreaching and specious takedowns. Specifically we’ll focus on 17 USC §512(f) failure to act as a viable tool for the average remix creator to fight back against these types of takedowns leaving many remix creators no meaningful recourse when their creations are removed from the internet. Second, we will address the problems created by the anti-circumvention provisions in 17 USC §1201. Specifically we’ll focus on how these overbroad provisions have made access to copyrighted materials for many fair use purposes illegal but for some limited and time bound exemptions. Third, we will address the problems created by the incomplete digitization of copyright office records. Specifically, how it has made reusing works created from 1923-1964 that are in the public domain too expensive for the average remix creator. Fourth, we will address the problem of the extraordinary duration of copyright and how it negatively impacts remix creators. And finally, we will address the potential pitfalls in the proposed Small Claims Copyright Court for small scale creators. Specifically we will highlight crucial safeguards that must be a part of the final iteration of The Court. We hope that by discussing these five problems we’ve observed in the field we will spark discussion and encourage badly needed copyright reform for the digital age.