Derivative Works : should we arbitrate ?
As a reminder, here is the problem as stated in Aarons's summurazing page
(http://notabug.com/2002/acs/ ):
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Derivative Works
People will inevitably create mashups and remixes, something which is illegal
without permission under current copyright law. We could do several things:
1. Keep it illegal.
2. Allow it, but give the money to the original artists and not the remixer.
3. Allow it, and give money to every artist involved (including the remixer).
1 doesn't seem practical (if we're not outlawing P2P, how will we stop it?). 2
seems unfair to remixers. 3 is unacceptable to many artists (they're getting
money off of my work?!).
Even if we do decide that, then how do we decide what percentage of the work
goes to each artist? Some sort of arbitration body (like the Screen Writers
Guild has to decide who gets credit for collaboratively-written scripts) would
make sense, but how would we pay for it?
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I think there is a possible comparison with what occurs in Patent Law,
regarding the request for "obviousness". As you may know, the three major
criteria or an invention to be patented are 1. A patentable subject-matter ; 2.
Novelty ; 3. Non-obviousness.
For this last criterion, courts held that commercial success could be an
evidence that the invention was not that obvious. If there is some commercial
success, then it tends to demonstrate that there was an actual demand for the
invention, even if it required only a "scintilla of inventiveness". And this
evidence contributes to the approval of patentability, even if the invention
was quite close to what existed before, even if it did not require much
"labour".
Regarding copyrighted works, couldn't we have the same reasonning? Why would
people listen to a derivate work if there was no "scintilla of creativeness"?
This creativeness should be rewarded, even if based on a previous work. I think
that the more creative the remixing is, the more probability there is that it
will be downloaded. On the contrary, the less creative, the more probability
there is that the original work remains the most downloaded. As a result, if I
remix a track and that my remix becomes very popular, I should be rewarded for
my creativity, whatever the level of labour it demanded.
The question is then : what percentage should I obtain as the remixer, and what
percentage should go to the original work copyright holder?
I have no clear answer to this, but perhaps could we imagine a default
repartition rate, backed by an alternative arbitration process. What we want to
avoid is injustice. So if a copyright holder estimates that the default rate is
not adequate, he can put his case before an arbitrator (or a panel of 3
arbitrators) who would decide on a balance of probabilities what the
appropriate rate should be, and the claimant would pay the fee for this
arbitration. If the copyright holder is not satisfied with the arbitration
resolution, he can still appeal the decision before a traditional court. It is
very similar to what we currently do for domain-names with the ICANN UDRP (but
if we adopted such a solution, we should be aware of some problems that
appeared with the UDRP, and first of all the one of forum-shopping).
--
Guillaume Champeau
web: www.ratiatum.com