"you Got Too Much Dip on Your Chip!" How Stagnant Copyright Law Is Stifling Creativity

• Publication year: 2020
• Citation: Vol. 27 No. 2

"You Got Too Much Dip on Your Chip!" How Stagnant Copyright Law is Stifling Creativity

Taylor Bussey
University of Georgia School of Law

"You Got Too Much Dip on Your Chip!" How Stagnant Copyright Law is Stifling Creativity

Cover Page Footnote

J.D. Candidate, 2021, University of Georgia School of Law.

[Page 277]

"YOU GOT TOO MUCH DIP ON YOUR CHIP!" HOW STAGNANT COPYRIGHT LAW IS STIFLING CREATIVITY

Taylor Bussey^*

[Page 278]

TABLE OF CONTENTS

I. Introduction............................................................................................279

II. BACKGROUND.............................................................................................280

A. HISTORICAL DEFINITION OF AUTHORSHIP...............................................280
B. NATURE OF HUMAN CREATIVITY....................................................................284
C. TRAGEDY OF THE ANTICOMMONS.................................................................287
D. OVEREXPANSION OF COPYRIGHTS IN RECENT HISTORY..................288

1. Settlement Agreements and Copyright Scope...........................291
2. Licensing Negotiations and Transaction Costs.........................293

III. Analysis.......................................................................................................295

A. TRAGEDY OF THE ANTICOMMONS.................................................................295
B. EXISTING DEFENSES ARE INADEQUATE....................................................298
C. CHANGES ARE NECESSARY.................................................................................299

1. Hierarchy of Protection ................................................................ 299
2. Mandatory and Permissive Judicial Review ............................... 300
3. Modification of Statutory Defenses............................................300

IV. Conclusion................................................................................................300

[Page 279]

I. Introduction

Imagine you want to write a song. You spend years developing the perfect story and you pitch it to a record label. In your preliminary review, they inform you that your months of work have gone to waste. Your work—while an original product of your own mind—is somewhat similar to other existing songs, and the label is afraid of being sued for infringement. This is a present reality for many creators.

Our concepts of authorship and copying have changed significantly—specifically with the emergence of the internet. What once would have required physical proximity can now be accomplished via the internet in a matter of seconds. Authors from all around the globe can collaborate, and they frequently do. Geographic limitations present virtually no constraint on the number of individuals that can contribute and access a work.

Human creativity, however, has remained the same. The idea of originality and novelty are now long gone, displaced by our modern understanding of ideas. Instead of wholly original works, ideas are generally understood as melting pots of the creative works before them. When creating, authors naturally draw on their human experience, which necessarily includes the creative works with which they have come into contact. Copyright doctrine, however, does not reflect this common sentiment.

The scope of copyright has never truly been defined.¹ Although much attention has been devoted to narrowly defining patent and trademark, the scope of copyright remains an unanswered question. As a result, rights holders have resorted to developing private law—through predatory infringement actions and broad settlement agreements. These settlements are rarely subject to judicial review, leading to increasingly broad copyright infringement claims.

This combination of pervasive collaboration, the fundamental nature of human creativity, and the increased saturation of copyrights presents a unique, impending problem. Copyright thickets—impenetrable licensing barriers—present a serious threat to creativity and the sustainability of the public domain. This Note therefore makes a simple claim: without tailoring our conception of copying, indivisible copyrights granted to joint authors will produce a tragedy of the anticommons. Fear of infringement liability and high transaction costs will stifle the very creation that intellectual property law purports to incentivize.

What is the scope of copyright? How far may infringement settlements go? What are the effects of these settlements on creativity and production? To what extent do these effects diverge with the goals of copyright protection? I explore these questions below. In Section II, I detail the circumstances, contributions, and historical context surrounding this problem. I also explore the nature of human creativity and highlight the overextension of copyright protection. In

[Page 280]

Section III, I develop my central thesis by explaining why this unique combination of factors will produce a tragedy of the commons, eventually creating an anticommons; how the overextension of copyright protection will stifle creativity; and how the untethered scope of copyright is contrary to the incentives behind copyright law. In Section III.B., I explain that existing defenses to infringement, both in their inception and their application, are inadequate to protect creators in light of this impending issue. Instead, a unique solution must be developed to tackle this unique problem. In Section III.C., I outline a potential solution to the complications that arise when these factors collide. I argue that the federal government should develop a three-part plan to attack this looming issue. First, the United States Copyright Office should develop a filtering system for copyrights that establishes thresholds of protection for certain groups of artistic works. Second, Congress should amend the Copyright Act to expand judicial review of settlement agreements. Third, Congress should amend the Copyright Act and expand defenses to infringement that allow for necessary borrowing to occur.

II. BACKGROUND

A. HISTORICAL DEFINITION OF AUTHORSHIP

Authors are central to copyright.² This centrality demonstrates the importance that our conception of authorship plays in evaluating copyright law today. From its inception, copyright law has been about authors. Technological advances and increased collaboration between humans have altered our idea of authorship. During the seventeenth and eighteenth centuries, authors were generally understood as isolated beings, creating completely novel works of authorship.³ This understanding was a uniquely individualistic view for two reasons.⁴ First, authors were romantically singled out and designated as the single, ultimate origin of the work of authorship.⁵ Second, authorship was understood as a highly isolated, individualized practice.⁶ Authorship was "reconceptualized . . . ignoring or obscuring the collaborative and cumulative aspects of creation."⁷

[Page 281]

Similarly, the author herself was depicted as wholly original in two ways.⁸ First, the conception of individual authors was "yet another incarnation" of the theory of the author as the origin of the creative work.⁹ Second, originality was equated with novelty.¹⁰ "Original works were understood as being completely different from those already in existence. Originality in this sense was marked with a supposed total break with traditions and existing materials, as opposed to their reproduction, reworking, or development."¹¹

Questions of who owned such works of authorship also centered on this idea of an isolated, completely independent author. Although seemingly simple, much debate surrounded ownership rights.¹² An interesting proponent for the first general copyright act, the Worshipful Company of Stationers and Newspaper Makers, were proponents of this individualistic view of authorship.¹³ The support offered by members of the Stationers was surprising, and has been the subject of much historical debate.¹⁴ Their efforts, however, ultimately resulted in the first modern codification of copyright: the 1710 Statute of Anne.¹⁵ "For the first time, copyright became a right of authors rather than publishers."¹⁶

[Page 282]

The codification of authorship rights in Statute of Anne did not end the debate. Instead, it fueled a three-decade long debate,¹⁷ which concerned the scope of an author's rights over their creative works. Authors sought a perpetual, common-law property right in their works of authorship.¹⁸ Building on the eighteenth century definition of author, advocates combined popular natural rights theory to justify the treatment of copyright as property.¹⁹ Although the "literary property debate"²⁰ did not result in a common law property right,²¹ its idea of authorship greatly influenced the Anglo-American conception of copyright.²² "The Statute of Anne laid the foundation for all of copyright law to follow."²³

Prior to the American Revolution, institutional stakeholders still dominated copyright.²⁴ These stakeholders, like the Stationers in the early eighteenth century, advocated for stronger, common-law-like rights of authorship.²⁵ These efforts, although selfish in nature, have proven to be successful.²⁶ Since the American Revolution and the Copyright Act of 1790, rights continually expanded in both subject matter and length of protection.²⁷

Who qualifies as an author has changed drastically since 1710. While authors used to be thought of as individual creators generating completely novel works, today's concept of authorship reflects an understanding that authorship involves collaboration. Guthrie explained:

The emphasis on individual autonomy in romanticism, the artistic articulation of classical liberalism, is the origin of the 'genius author' archetype. While this mythic figure persists to the present

[Page 283]

day in the discourse of the creative industries, the complexity of cultural production in an advances capitalist society

...