The Current Debates


“Creativity and culture resemble an ongoing conversation. We necessarily draw upon the past and play off each other. We constantly borrow and transform works”[1]

What is wrong with this notion? Isn’t this how new works are created in the first place, a form of prior art, to use patent law terminology. This is what originality is, drawing on the past and developing new ideas.

Imagine what would happen if copyright and trademark laws were somehow time-tunneled back through history? How would creativity be affected? William Shakespeare could be sued by Ovid, Albert Einstein could be sued by patent holders for his theories on time and space. [2] Meanwhile, McDonalds still insists on pursuing small restaurant traders of Scottish descent for using the Mc prefix on its surnames.[3]

What is happening is the expansion of the scope of both copyright and trade mark law into areas once considered part of the public domain and once part of our culture, severely encroaching on freedom of expression, open markets and society generally. The consequence is that we a less and less a free culture, more and more a permission culture.[4] This is a form of protectionism, but does this  protect artists? or business?, or consumers? It is also an attack on free speech, one of the fundamentals of democratic society.

What has the world come to? – where has the public domain gone!

Lessig points out in his latest work, Free culture that “intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. We have become so concerned with protecting the instrument that we are losing the value.”[5]

The advent of the internet, electronic access to published works, and the ever increasing ability of trade mark owners to attempt to own the cultural sphere that exists around their marks, has shrunk the public domain or intellectual commons as it is known,  to an unidentifiable space.

Both copyright law and trademark law are important tools in realizing new creativity and building a culture. “By giving creators a property right in their work, the law stimulates the development of all sorts of new works”.[6] We must allow potential creators to stand on the shoulders of giants.

The expansion of copyright and trademark laws can sabotage creative production. Artists draw on works from the past, they must be able to modify and transform prior works and collaborate and share with fellow artists.[7]

Copyrights and trademarks are both monopoly rights, the question then becomes, how far should intellectual property protection extend? and what is the proper balance?[8] How do we achieve that balance?

An interesting junction in the debate is the merging idea that copyright should be about policy, not property. Many recent trends and changes in copyright laws – including proposals that would protect the content of databases both domestically and internationally- are bad policy. These changes threaten democratic discourse, scholarly research, and the free flow of information. … To envisage the best possible copyright system, one would encourage creativity and democracy – we must revise our notion of intellectual theft. You cannot steal an idea, a style, a look and feel.  These things are the raw material of the next move in literature, art, politics or music. And using someone’s ideas does not diminish its power.[9] It reinvigorates it. Afterall it is not the idea that copyright protects, it is the expression of the idea.

[1] Bollier, D. Brand name bullies: the quest to own culture and control culture. Wiley & Sons, c2005 p. 2.

[2] ibid

[3] Klein, N. No logo: taking aim at brand name bullies. Picador, c1999. p. 177

[4] Lessig, L. Free culture: how big media uses technology and the law to lock down culture and control creativity. Penguin Press, 2004 p. 19

[5] Ibid p. 8

[6] Ibid, p. 12.

[7] ibid

[8] ibid

[9] Vaidhyanathan, S. Copyrights and copywrongs: the rise of  intellectual property and how it threatens creativity. New York Press, c2001. p. 15

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Filed under Copyright Law, Intellectual Property Law

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