In the Fall of 2006, I wrote my high school senior honors thesis on copyright. Part I chronicles the historical development of copyright law. Part II investigates the current friction between digitalism and intellectual property. The final section proposes a solution I call the Creative Consumer Copyright Act. The paper is available for download, if you want to read it offline, here. To stay up to date on the topic, visit my blog, Copyrightings. 

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History, ©opyrighted

When the “star-crossed” lovers of Shakespeare’s Romeo and Juliet first took the stage in 1594, the tale of tragic love undoubtedly moved the audience as much as it does today. His seminal work of forbidden desire remains one of the most important literary works ever published, yet the mysterious William Shakespeare does not deserve full credit. As early as 1303, a story of unhappy lovers from Verona was written. In 1562, more than 30 years prior to the penning of Shakespeare’s now famous prose, Arthur Brooke wrote the minor poem The Tragical Historye of Romeus and Juliet (Dowden 247).

            The titles’ similarities are no mere coincidence; Shakespeare’s grandiose work drew directly from the literary tradition of both Brooke and classical authors. In today’s world, such derivative works would be subject to legal scrutiny, but such was not always the case. Since the beginning of oral culture, societies have built upon the past in fields as varied as science and poetry. Arguably, had Shakespeare not been allowed to draw from the past, the poetic flair and grace of Shakespeare’s adaptations would be nothing more than an unpublished thought.

            The concept of “intellectual property” has developed through centuries of legal debate. At one point, expression was not considered property in the same sense as land or physical goods. Yet, today, creative works are owned in much the same manner as an automobile or house. The maturation of copyright has been paralleled by two changes: both the scope and duration of protection have expanded. As technology makes creation and reproduction easier, the tenets of intellectual property law have risen to paramount importance.

            Shakespeare wrote in a time very different from today; the idea of rights bestowed upon a creator was as radical as it was uncommon. To many modern authors and lawyers, the legal void would seem to lead to rampant ‘piracy’ and, therefore, a limited marketability of creative works.

            However, as USC Professor Paul Geller points out, “only when media technologies and market conditions made piracy profitable could copyright arise” (Geller 210). The limited ability of 16th Century Europeans to print made the possibility of market-affecting piracy remote. Shakespeare’s work, for example, was secure from unauthorized reproduction due to the difficulty and expense associated with printing or performing his plays (Geller 211).

            This difficulty has been the rule throughout history; since the inception of legal doctrines by Hammurabi in 1780 B.C., only one society developed protection for intellectual property prior to the 18th Century. In 1474, the Venetian government enacted the first recorded patent act. The simple legislation, passed by the trade-oriented society, protected ship designers from pirate builders (Landes 6).

            Though the ancient act would foreshadow many later developments, copyright was not fully recognized until the landmark Statute of Anne in 1710. Prior to the rise of the nation-state system, the seemingly omnipotent Catholic Church controlled the majority of writing. Thousands of monks, transcribing medieval literature were the primary source of written works (Geller 215). The relative ease of the Guttenberg printing press led to a remarkable growth in publishing and literacy. By the mid-1600s, printing had become so widespread in Britain that Parliament passed the Licensing Act of 1662 (“History” 1). This act allowed the Stationers’ Company of London, a conglomerate of major publishing houses, to approve which books would be published. The purpose was not to protect authors, but to stop the spread of political dissent or heretical views (Lessig 86).

            Then, at the beginning of the 18th Century, two events occurred which would set the stage for the most important legislation in copyright history. England and Scotland, after years of dysfunctional relations, became one and the Stationers’ printing monopoly ended (Geller 225). The growing importance of literature and the concerns of the creators prompted the Statute of Anne which was to be “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies” (“United” 1). The Statute of Anne introduced the idea of protection for a limited time. Copyright was to last for 14 years, renewable for another seven years (“United” 1). Instead of vesting protection in the publishers as had been the case under the Licensing Act, the legislation clearly gave power to the “Authors”.

            Indirectly, the Statute of Anne also created and codified the “public domain,” or the collection of works not protected by copyright. As Supreme Court Justice Brandeis said, material unfettered by legal restrictions is as “free as the air to common use” (“International” 7). This important precedent affirms the rights of all creators to draw from the past to create the future.

            Prior to this law, the licenses granted by the Stationers’ Company were perpetual and exclusive; however, after 21 years, the legal changes led to an unheralded competitive literary market. Scottish publishers seized upon public domain material and proceeded to undercut London’s publishers by thirty to fifty percent (Lessig 91). After being thwarted by Parliament, the publishers turned to the courts for the protection they had been afforded in the past.

            In 1774, a Scotsman by the name of Alexander Donaldson was sued by the Stationers’ Company. Donaldson had been in the profitable business of publishing public domain material. Donaldson v. Beckett climbed through the judicial ranks until it reached the House of Lords – England’s supreme legal body. The publishers disputed the legality of limited copyright protection. They argued that the legal precedents, or common law, which supported perpetual copyrights, overrode the Statute of Anne. In a 22 to 11 decision, the Lords decided in favor of the “pirate publishers” and the public domain’s existence was affirmed (Lessig 92). According to Professor Geller, “the marketplace opened up: new publishing houses and projects began to proliferate…” (228). The affirmation of the public domain allowed entrepreneurs to publish material out of copyright – no longer would perpetual monopolies restrain the growing capitalism in the streets of London.

            The revolutionary legal developments in England were matched by a growing fervor across the Atlantic Ocean. The leaders of the newly formed republic met in 1787 for the historical Constitutional Convention. Of the many debates concerning the Constitution, few were as vociferous as that over intellectual property. Although the Founders recognized the need to promote republican virtues like progress and learning, they differed over how to achieve the goal.

            Thomas Jefferson, though stationed in Paris during the debate, remained active through his letters (Vaidhyanathan 37). In one, he writes that “the benefit of even limited monopolies is too doubtful” (1). To Jefferson, and many modern day economists and legal scholars, the concept of ideas as property was perplexing. Jefferson once mused, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me” (1). Ideas, as opposed to physical goods, are non-rivalrous – that is, unlike the use of a bicycle, which prohibits others’ use, ideas are open to everyone’s pondering and expression. Madison, to whom the letter was sent, disagreed. In Federalist Paper 43, Madison stated that “the public good fully coincides” with copyright and similar protections (1).

            In the end, Madison’s position triumphed. Article I, Section 8 of the Constitution states that “Congress shall have the Power to… promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (U.S. Const. art. I, § 8, cl. 5). As the Recording Industry of America reveals, before the protections afforded by the Bill of Rights were agreed upon, copyright was protected in the Constitution (Valenti 2)

            Acting quickly, Washington signed into law the first Copyright Act in 1790 (Valenti 1). The law was to be an “Act for the Encouragement of Learning by Securing the Copies of Maps, Charts and Books to the Authors and Proprietors of Such Copies” (“United” 1). The law granted 14 years of protection for registered work, with an additional 14 years renewal. This legislation would come to protect the rights of authors and consumers by balancing the dual interests. Authors were able to profit from the sale of their work while consumers had access to a rich public domain and a freedom to use the books in a variety of ways.

            Even a cursory understanding of intellectual property rights will show that the law put forth some 216 years ago has drastically changed. The first major revision came in 1831. To match the level of protection in Europe, Congress extended the initial copyright protection to 28 years. This extension would become a theme: in 1976, the Copyright Act was again revised to protect creative works for the life of the author plus 50 years (“Copyright” 7). The previous maximum term of 56 years suddenly seemed paltry.  

The 1976 legislation also produced other changes. The doctrine of “fair use,” long recognized by the courts, was first codified. In 1841, the Supreme Court heard the case of Folsom v. Marsh. Justice Story, in his decision, wrote that a derivative work may not be infringing if it is a “justifiable use of the original materials” (Story 4). This right, well established by the courts and now Congress, allows creators to use copyrighted material assuming that the nature of the work is justifiable and will not harm the market of the original work.

The lengthening of copyright duration has been accompanied by the expansion of protection’s breadth. Various legislative modifications have made copyright an umbrella for other rights. In addition to controlling the reproduction of his works, the copyright owner also has the sole privilege of publicly performing, displaying or distributing his work (Vaidhyanathan 83).

At the behest of content owners, Congress had significantly enlarged the scope of copyright. To many, the reason for this is simple. As Lawrence M. Friedman writes, America’s economy was

“...based on science and technology, basic and applied… toward the end of the century, it seemed critically important to preserve and extend monopoly protection that patents and copyrights afforded. As jobs and factories fled to cheaper labor markets, only the American in science or technology could keep the economy afloat, or so it seemed” (Friedman 558).

 

            Yet, those who intellectual property protected, technologists and creators, would, at the end of the 1900s create an invention so profoundly world-altering, that the foundations of copyright would be shaken. The digital, connected world of the Internet age has raised the awareness of a new generation of legal scholars, economists, creators and technologists who see the expansion of copyright as a dangerous trend.

 

A Paradigm Shift

 

In September of 1957, Arthur Laurents’s musical debuted to warm reviews on Broadway. West Side Story cleverly adapted the story of Romeo and Juliet by replacing feuding families with inner-city gangs and adding music. The rich derivative work continues to be performed around the world to this day by both professional and amateur theatre troupes (“West” 1).

            Laurents was free to build upon Shakespeare’s work without restriction because no copyright protected Romeo and Juliet. Unlike adaptations of more modern plays where dramatists pay heavily to secure permission before writing or performing, Laurents was building upon the public domain. The only impediment to success for Laurents and all who use the public domain is the quality of the work; legal barriers are absent.

            Instead of freedom being the default in the modern era, restriction has ruled. Now, more than ever, legal limitations constrain creators like Laurents. The restriction characterized by copyright and other intellectual property legislation was further expanded in 1998 by the Sonny Bono Copyright Term Extension Act (CTEA). The law, known to some as the Mickey Mouse Protection Act for the safeguard it gave Disney, further lengthened copyright by twenty years. The most striking aspect of the law was that it extended the term of copyright for creative works created prior to 1978 (Bono 13).

            The retroactive extension effectively froze the public domain. Where before new works shed their legal restrictions every year, no more content would reach the public domain for twenty years.

This represents a detriment to men like Eric Eldred who, after watching his daughter struggle while reading The Scarlet Letter, tried to modernize the classic novel. He posted the book on his website and provided links to relevant information. Though his daughter did not find the material any more engaging, Eldred had discovered a passion. He continued to provide public domain books online. However, when an identified novel was barred from entering the public domain by the CTEA, Eldred decided to seek legal recourse (Lessig 135).

With the support of Stanford Law Professor Lawrence Lessig and a variety of other pro bono legal experts, Eldred v. Ashcroft reached the Supreme Court in October of 2002. The arguments of the petitioners, on behalf of Mr. Eldred, were based on two Constitutional arguments. The first, and most important, was that retroactive extensions were in violation of the “limited Times” clause of Article 1 of the Constitution. If Congress had the ability to extend the copyright of existing works, the duration of copyright was essentially infinite. Jack Valenti, the head of the Motion Picture Association of America and a key proponent of intellectual property, has called for copyright to last “forever less one day” (Valenti). The second legal argument of the petitioners was that such broad monopolies over expression were a threat to the freedom of speech guaranteed by the First Amendment.

The Court found “nothing in the constitutional text or history to suggest that a term of years for a copyright is not a “limited Time” if it may later be extended for another “limited Time””. Accordingly, Justice Ginsberg, opining for the Court, stated that the Supreme Court could not rule the CTEA unconstitutional however “unwise” it may be (Eldred 2).

Justice Stevens, in thoughtful dissent, balked at a number of consequences of the CTEA. Copyright’s most basic purpose is that of an incentive system. Since the inception of intellectual property laws in Britain, legislators and creators have agreed that the ability to exclusively market a creative good allows artists to profit. However, one cannot entice a dead person to create; Walt Disney will never again draw a character to befriend Mickey regardless of the years of protection he receives. Why then, should copyright be extended retroactively? In sum, Stevens declared that “[b]y failing to protect the public interest in free access to the products of incentive and artistic genius” Congress has acted unconstitutionally (Eldred 22).

At the same time that Congress has shrunk the public domain, forceful private action has restricted fair use. A right codified in section 107 of the Copyright Act, fair use allows anyone to use copyrighted materials in a justifiable way. Fair use protects everyone from movie-makers who capture a small portion of a copyrighted song to reviewers quoting a book. This use, according to Gordon Quinn, the founder of a prominent documentary film company and proponent of fair use, can be either commercial or noncommercial in nature.

In many ways, Mr. Quinn is on the forefront of the battle over fair use. By purpose, documentaries capture the real world and, more than ever before, that world is one of copyrighted material. The automatic copyright of all creative works means documentary makers have to cautiously avoid filming material owned by litigious firms.

This threat is more than theoretical. Davis Guggenheim, another documentary film maker, reveals that a decade ago, only clearly recognizable content needed to be cleared for use. Now, unless one is willing to chance a lawsuit, any and all material must be cleared with the rights owners. Put simply by Guggenheim, “The cost for me is creativity” (Lessig 4).

The cost for others can be much more tangible. Quinn once paid $5,000 to use a scene in which “Happy Birthday” was being sung. Now, after years of experience and further legal understandings, he says he would “claim fair use” and use the song without paying for permission. But for many, the mere threat of a lawsuit by wealthy content owners like Disney or FOX would be enough to stop creation.

If the current copyright system is inhibiting the ability of producers to make new content, as these examples demonstrate, it calls for a serious reevaluation of the law. Few would suppose that artists would be as numerous and prolific without an opportunity to receive a financial gain that copyright assures; copyright is a good thing, but it does not hold that more of a good thing is necessarily better. A balance must be reached between allowing producers to market their goods and culture to evolve.

Our economy depends on the work of those the current copyright regime inhibits. Mr. Valenti, the lobbyist who once equated the VCR with the famed serial killer the “Boston Strangler” for its predicted effect on the entertainment business, is now quick to proclaim intellectual property as “America’s greatest trade export” (Valenti). In 2001, $89 billion dollars of films and software was exported by American firms (Landes 7). This represents only a fraction of copyrighted material, but is significantly larger than many industries. This figure, however, could be larger still if more artists were free to create.

Congress, charged with the duty to promote “science and the useful arts” and to regulate interstate and international commerce must recognize the danger the expansion of copyright represents. Yet, they have continued to extend copyright and have been supported by the courts. The judiciary has played an important role in two particular cases which have significantly affected fair use.

In 1976, Sony Corporation introduced the first mass-produced and affordable video recorder. The VCR, when used in conjunction with Betamax tapes, allowed individuals to “time-shift” television to fit their viewing habits. By creating copies of the broadcast material for personal use, consumers were able to benefit. However, the major movie studios decided that their right to create the sole copies of the material was being infringed. In what was to become known simply as the Betamax case, the Supreme Court decided in favor of Sony. The Justices decided that if a technology was “capable of substantial non-infringing use”, the creators could not be held liable (“Sony” 16). This meant that innovators were protected and allowed to flourish.

And flourish they did. Twenty years later, a new technology would grab headlines. The peer-to-peer (p2p) networks of file trading grew with the internet. Early pioneers like Napster were quickly shutdown by court order, but the most recent case, MGM v. Grokster, Inc., hints at a more troubling development. Decided in the summer of 2005, the Grokster case proposed a new precedent for copying technology. Instead of relying solely on the capability of non-infringing use, the court decided that if a technology creator “induced” copyright infringement, he could be held responsible.

The subtle change means that technologists have been added to the list of potential lawsuit victims. Innovators can be held liable for the actions of their users. In a global economy where America is increasingly the source of skilled creators of technology and expertise, the barriers to success incurred by copyright mean less and less people will be willing to chance the repercussions of their creations.

Lawrence Lessig, one of the most outspoken critics of the current copyright regime, understands this. According to Lessig, two themes have emerged: the theme of technology and the theme of law. Says Lessig,

“The technology trend means more is possible with less. The legal trend means that less is allowed than before. The technological trend could give the power to create to an extraordinary range of citizens. The legal trend means that the right to create is increasingly held in a smaller and smaller circle” (3).

           

            America is at a juncture. Our children may mature to a world where creation is induced or prohibited. The democratic power of the web and technology might banish to history media created by few for many. Instead, a system of copyright might emerge which encourages all to give content to all.

            A good example of these opposing trends will be reaching the courts in the coming months. A consortium of publishers and authors are suing internet search giant Google for alleged copyright infringement.

            In the fall of 2004 Google announced an ambitious plan to scan the complete collections of several major libraries. The project initially included 18 million books, but since its inception libraries from Oxford to Michigan to Madrid have joined, boosting the catalogue. What the Google Book Search service envisions is the ability to search through books the same way people can currently search the internet. By scanning and recognizing the text in the books, Google can index their contents in much the same way it does websites. For the eighty-two percent of scanned books which were copyrighted, Google plans to include snippets of the copyrighted texts so that a user might view a few lines of context around a search result.

            From the prospective of the content owners, Google is committing a massive copyright infringement by making digital scans of their copyrighted material and hoping to profit from the use. The advertisements found on Google Book Search represent revenue the publishers feel they should receive.

            Google, on the other hand, feels that the small samples of the material provided for protected works is a fair use of the material. According to Google’s chief counsel, David Drummond, “Information does not want to be free, it wants to be found,” and the merger of physical content with digital access allows for new discoveries.

            Never before has mankind come closer to creating a massive repository of human knowledge and culture. The library of Alexandria will seem paltry in comparison to an easily searchable, freely accessible and fireproof database of all published works. The physical card catalogue is already outdated, but the very idea of local restrictions to knowledge might pass into history if Google is able to provide universal access to the world’s printed word.

With a multi-billion dollar market capitalization and a hugely profitable business, Google is able to afford legal teams that a start-up or independent technologist would not. The case will be fought out in federal court and will serve as a landmark case for fair use in a digital setting.

            The threat to creativity and innovation posed by litigious publishers or record labels is very real. It is as real as the cease and desist letters being sent to college students downloading music as it is to documentary film makers who must pay exorbitant fees for incidental uses of protected materials.

            As Stephen McKenna, an attorney with intellectual property background, asks, “Who is the [copyright] law protecting?”  It certainly is not Gordon Quinn or the creators of the next groundbreaking technology. Before one becomes the intellectual property owner, he must stand on the shoulders of giants, giants who are most likely “protected.”

 

Free to Create, Free to Profit

 

A spectre is haunting creativity – the spectre of copyright restriction. The incredible power of an affordable personal computer – the power to create professional quality content – is crippled by an ever-expanding copyright regime which has come to restrict not only the right to recreate, but to perform, display or derive content. In addition, the protection afforded by the Copyright Act has expanded from a fixed time to a variable length which can be as much as ten times as longer in duration.

           However, those who recognize the dangers of copyright should not lose hope; law and technology have a propensity for change. The technologies will evolve: services like Napster, Google Book Search and YouTube prove this. What needs assistance is the law. The current system is disproportionately in favor of current copyright holders. The fine balance promoted by the Founding Fathers must be recreated; both the consumer and the producer must benefit from any copyright regime. To accomplish this goal the Copyright Act must be revised. My proposal, a Congressional law entitled the Creative Consumer Copyright Act (CCCA), will amend the Copyright Act to introduce property formalities, adopt the realities of the digital age and embrace the spirit of the Constitution.

Currently, the attainment of intellectual property is both the default and automatic. Any unique work, from an idle doodle to a big-budget film, is automatically owned upon creation. No desire for, nor notice of, protection need be present. This is in stark contrast to other forms of property. The purchase of a car requires one to register the vehicle and a house needs the formalities of a deed.

These property formalities notify others of the owner, but no such system exists for copyright. This, coupled with the pervasiveness of copyright due to the automatic exclusivity, means that the filmmaker or collage artist is unaware of the legal status of the work on which he builds prior to a possible lawsuit. The Creative Consumer Copyright Act will introduce a process for registration of copyright to both assure that the creator wants to limit reproduction of his work and to identify the owner and notify others of his intentions.

In the past, the content industries have argued that registering every work places an undue burden on creators, but the very invention which shifted the paradigm of copyright infringement, the Internet, can do the same for copyright ownership. The CCCA will allow the creator, with the ease of an online purchase, to obtain the exclusive right of ownership for any unique artistic creation.

            For the sake of illustration, take the following fictional example of an independent film producer: after completing a small documentary film, the movie maker would like to secure the ownership of his film, yet, like most artists who languish in anonymity, he wants his movie to be seen by as many as possible. He wants viewers to email copies to their friends, post them to websites and burn them to DVD for coworkers. In other words, he wants his copyright infringed. Under the current system, he automatically has the sole right to reproduce, publicly display, perform, and adapt his film - even if that is not his desire. The CCCA will grant artists leverage they have never had before.

At this moment, a tool does exist to grant artists some influence in how their creation is used. More than 160 million creators have adopted the “Some Rights Reserved” model of Creative Commons, a nonprofit organization which offers free legal licenses to artists. Where the default copyright is “All Rights Reserved”, Creative Commons licenses instead allow for “free distribution, remixing, and other peer-to-peer propagation” of copyrighted material (Anderson 75).

The idea behind Creative Commons has sparked a movement with some interesting members. The award winning science fiction writer, Cory Doctorow simultaneously releases a free online version of his book under a Creative Commons license and a traditional paper copy for sale in book stores. According to the author, 

“I’m generating more sales of my printed books. Sure, giving away eBooks displaces the occasional sale, when a downloader reads the book and decides not to buy it. But it’s far more common for a reader to download the book, read some or all of it, and decide to buy the print edition” (Doctorow 2).

            His example is only unique in the fearlessness with which he has embraced the new distribution models. A Copyright Act amended to support the idea of Creative Commons will result in the growth experienced by Doctorow to proliferate throughout the economy.

            The millions of Creative Commons licenses point to a middle ground that is not presently reflected in the law. The two extremes of the public domain and All Rights Reserved are complemented by the commons – content open to all. The Copyright Act should support the commons.

            As for our fictional producer, in a spare moment he can visit the Copyright Office’s website, which will be modeled after the Creative Commons, to register his film. He need not do so immediately, for under the CCCA, a grace period of one year will be extended to potential copyright owners. Following this, the law will assume that the creator claims no ownership and wants the public to have full access to his work. During registration he will have the option of reserving all rights or, as many have indicated they desire, allowing derivations, sharing or commercial uses of his film.

            The various data associated with his newly protected film will be indexed and made searchable. The Copyright Office, under the CCCA, will maintain a database which will remove the uncertainty associated with automatically copyrighted works. The burden on the owners will be minimized and, in its place, a lesser onus will be given to those who wish to use works for their own purposes.

          Another, optional, step for the registrant has potentially monumental possibilities. An ever-increasing number of works are being created digitally – films, manuscripts, graphic artwork – yet they rarely find their way to the traditional cultural archive: the library. If, as the CCCA will encourage, a digital copy of registered works is provided to the Library of Congress, America will begin a catalogue of 21st Century culture. The endless opportunities afforded to both current citizens and future historians are breathtaking – not even the Library of Alexandria was able to index, in real time, the evolution of creativity or to ensure its perpetual survival.

            In addition to the aforementioned alterations which aim to formalize and modernize the intellectual property ownership process, the current regime must be changed to reflect the limited times mentioned in the Constitution. Instead of a default term of protection which lasts longer than any human, the Copyright Act should require the copyright holder to demonstrate an interest in their content. The CCCA will do so through its registration process. By paying the minimal fee associated with registration, the owner acknowledges that he has a financial incentive to limit other people’s creation.

            The newly amended Copyright Act will grant a 10 year term of copyright. This decade-long term will be renewable until the death of the creator. The creator’s estate may continue to profit until the expiration of the last registered term. The argument that renewing copyright is too onerous no longer holds water. Instead, the burden comes from overly restrictive copyright that often exists for works whose author desires no protection. The renewal, as with the first registration, should incur a minimal cost to allow for the upkeep of the registration site and searchable database. Copyright gives the creator a monopoly so that he might have an opportunity to receive financial compensation for his work, so a fee of less than five dollars is not unreasonable.

            The changes proposed by the CCCA will benefit the burgeoning artist while not subtracting substantially from those who currently reap the rewards of copyright. The big media companies who have spent millions of dollars to extend copyright will still be able to obtain an exclusive monopoly for the duration of the creator’s life.

            The only added cost will be the minor fees associated with registration. American legal tradition has never assumed intellectual property protection was a right in the same sense as the freedoms of the Bill of Rights. Instead, copyright has been a privilege, a reward of sorts, for those who innovate. The reward can come at a cost and with limitations; the CCCA reintroduces a minor cost and realistic limits to copyright.

            Another possible fear of the proponents of the current system is the possible burden placed on creators by registration. However, as Jennifer O’Malley, an intellectual property attorney for McDonald’s Corporation, reveals, the lack of registration requirements for copyright is the exception to the rule. Other forms of intellectual property including trademark and patents require a registration process. Furthermore, trademarks require 10 year renewals, just as copyright will under the CCCA. The “low barrier to attainment” of copyright will be raised ever so slightly to ensure that only those who desire intellectual property rights will receive them.

            A balance between consumer and producer was enshrined in Article 1, Section 8 of the Constitution. Through time, however, that equilibrium has been swayed in favor of the content owners. The CCCA will introduce specific provisions – property formalities, digitalism, and an emphasis on “limited Times” – to equalize the creative marketplace.

            Under the CCCA, draconian measures currently employed by content owners will yield to a freer market for innovation. The cost for creativity experienced by Gordon Quinn will be minimized as content owners will reserve only the rights they desire.

            Creativity may come easily to some, but the work associated with innovative new products or art requires a serious investment in time and, often, capital. Those who do such work and desire a return on investment should receive compensation for a reasonable term through copyright, but art, no matter what form it initially takes, was always meant to be shared, enjoyed and adapted by the masses. The Creative Consumer Copyright Act will modernize the law to mirror a culture of content creation and sharing.

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CCCA Bibliography.