Writing in the British newspaper The Guardian, Cory Doctorow has an interesting proposal for a dual copyright system, one for commercial use and one for cultural use.
However, as he points out, this is not a new idea.
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 meant that it was OK to photocopy a Dilbert toon for your cubicle wall, make a copy of a record for your pal, or publish your own low-rent Spider-Man knock-off in the school newspaper.
Folk-copyright didn’t have a lot of legal authority – it was completely backwards on any number of subjects – but it worked. The likes of Time Warner, Sony, Universal or EMI weren’t going to bust you for what you got up to at the OAPs’ campfire singalong, and not just because they’d look foolish for doing so.
Then came digital media and the Internet and everything seemed to stop working. It became much easier for the average person to remix culture and for the “enforcers to find them and threaten them”.
The result is the growing conflict between what we perceive as fair use rights and what others see as theft.
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.
For educators this would also help to sort out the conflicts that come from trying to help students develop their creative skills while still teaching them the ethical use of media.