Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, April 12, 2012

Copyright and the Religious Liberty Statement: Not Your Typical Criticism of the Bishops

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.


Berg, Thomas | Permalink

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It's interesting that you bring this up, as Jeffrey Tucker, a blogger on Catholic music and liturgy, has discussed in numerous posts the problems with the texts of the liturgy being subject to copyright and ICEL (the International Committee for English in the Liturgy) collecting royalties on them.

Here is one post, but there are many others on this site if if you search for term "copyright": http://www.chantcafe.com/p/creative-commons-for-catholics.html

Tucker argues for the use of Creative Commons in the liturgical and musical context.

Posted by: Catholic Law Student | Apr 12, 2012 7:24:33 PM

A lot of boilerplate at the end of attorneys' emails also mis-states the law and arguably violates ethics guidelines about not misrepresenting the law (like when they say "if you got this message in error, any use or shraring of this email is strictly prohibited" .... oh yeah, prohibited by what authority?).

Posted by: Anon | Apr 12, 2012 11:22:32 PM

Professor Berg, your piece on "Intellectual Property and The Preferential Option for the Poor" is very good. When considering prudential judgements born of experience in light of Catholic Social Teaching, working in communion with one another, including those who are poor, has always served the Common Good, as The Catholic Church's vision for empowering those who are poor, is the same as The Catholic Church's vision for empowering all people.

In regards to Medical Research, it seems logical to assume that several Medical Research Groups that are willing to share their knowledge and their results, would improve productivity, efficiency, and cost, while leading to further creativity and innovation through the sharing of ideas as they integrate and disseminate information. I am wondering if because this is such a complicated issue, that one should consider approaching Foundations and Aid Organizations with the intention of facilitating a dialogue that would convince them that rather than giving money to poor Nations to buy expensive drugs, the Health Care of all persons would benefit by contributing directly to those Medical Research Groups who are willing to work with other Medical Research Groups to improve the productivity, efficiency, cost and distribution of medicine.

Posted by: N.D. | Apr 13, 2012 11:33:30 AM

Thanks, N.D., and you raise an excellent point. The magisterial statements on this have encouraged voluntary arrangements between drug companies, other research groups, NGOs, and developing countries to provide and distribute lower-cost medicines. Arrangements like that have happened, resulting in the provision of medicines, and they are certainly the ideal because the Christian faith encourages people to support the poor voluntarily. I do think that these arrangements end up arising out of negotiations where some pressure must be applied on the providers. That reflects, I believe, another foundational element of Catholic (and all Christian) teaching: the recognition of the fact of sin, the limits of our sympathy. Therefore I think the developing nations need some leverage through the ability to invoke exceptions to patent protection in appropriate cases. Here and elsewhere, law serves the important function of setting the background for arriving at voluntary arrangements.

Posted by: Tom Berg | Apr 13, 2012 11:47:21 AM

Thanks very much, CLS, I knew a little about the liturgy-royalties issue but will definitely look at those posts.

Posted by: Tom Berg | Apr 13, 2012 11:48:45 AM