Thursday, April 12, 2012
Today's USCCB document on religious liberty is a powerful statement (one that needed saying, I think), and I'm sure we'll have a lot to discuss about it. But can I protest one law-related aspect distinct from the merits? The statement is followed by a copyright notice, appropriately, but then comes this sentence: "No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright holder."
This is a boilerplate assertion found commonly in books and other copyrighted works. But as numerous copyright scholars have pointed out, it plainly misstates the law: "De minimis copying is not infringement, and fair use also permits certain kinds of reproduction." (Jason Mazzone, "Copyfraud," PDF p. 24.) Nor can the author create a contractual agreement against reproduction with every person who accesses a broadly distributed work. Of course, no one takes the blanket copyright claim seriously. Many of us will copy and transmit parts of the bishops' statement to comment on it, as we should, and presumably as the bishops want us to do. But that is precisely why, I think, our Christian organizations should avoid--rewrite--such blanket claims.
Actually, I see two reasons why they should do so. First, we should tell the truth. The notice does not make an accurate statement about the law, or about the organization's intentions (the bishops probably want a good deal of reproduction of excerpts for education and comment without having to give permission in each case), or about what is moral (it is perfectly moral as well as legal to reproduce parts of a work for fair use and similar purposes).
Second, our Christian organizations should model a more hospitable attitude toward sharing of creative work--and at least should not reinforce the most inflated versions of the moral status of copyright (i.e., "all copying is theft"). The Pope himself, like other Vatican officials, has argued against "an excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property." (Let me shamelessly plug my piece on "Intellectual Property and the Preferential Option for the Poor," which expands on the argument why Catholic moral teaching, while validating copyright and other IP rights, cuts against the most inflated versions of them.)
Again, the blanket copyright assertion probably will mean little in practice. But I'd urge the bishops and other Christian groups to model, and teach implicitly, the better understanding of IP laws and morals. I wouldn't say that necessarily means joining up with Creative Commons and foregoing essentially all claims against reproduction (although in many cases that might be the right thing to do to spread the Gospel). But good modeling certainly means dropping the blanket notice, instead explaining--and welcoming!--fair uses, and so forth.