How Copyright Has Gone Copywrong

Yep, that’s right – I’m talking about copyright again. Specifically, I’m following up on my previous post, Copyright & Fan Creations.

In that post, I talked about how all fan art is copyright infringement – whether you sell it or not is irrelevant; as soon as you draw it, it infringes on copyright. Now it’s just a matter of how much damages you are liable for.

In ye olden times, copyright infringement was strictly a civil matter, up to the copyright holder to decide to sue – just like it is up to individuals in, say, a contract dispute to decide whether or not to sue. The state doesn’t typically get involved in civil matters (that’s why it’s called civil).

But now it does. Copyright infringement, though still nominally a civil matter, is being treated, prosecuted, and sentenced like a felony – right up there with robbing a bank or murder.

This is insane.

On top of that, copyright is extremely broad, and the only “exceptions” to the law (fair use) are actually just defenses, not actual exceptions – meaning they only come into play once you end up in court (and they are by no means guaranteed).

This is so heavily skewed that it’s a miracle anyone can produce anything new anymore without someone making a claim that it infringes (often just by resembling) another intellectual “property.” (In point of fact, this actually does happen quite a lot.)

This partly explains the resurgence of old, nostalgia-driven media lately – old comics made and re-made into movies, old franchises re-made, or even board games made into movies – because the copyright on these things are already well established, and companies don’t have to go through the potential trouble of investing in new properties, only to find out at the end that someone else has a copyright on something similar.

Keep in mind that I make my living from copyright & intellectual propery – so I’m not advocating for the total abolishing of copyright. What I’m calling for is some restraint, some sanity in copyright law.

For something that was intended to foster and encourage creative works & reward creators for doing so, it is now much too heavily skewed towards protecting existing creations.

Eventually, this is going to come back around and start biting the hands of those who advocated for stronger copyright laws.

Copyright is painted with such a broad brush, and it lasts for such a long time, that it is now having the opposite effect than what was intended – or what is necessary.

Creativity still happens, of course, but the rewards & incentives copyright was intended to give simply no longer exist (or are outweighed by the risks of infringement). Copyright is stuck 100 years ago, even while copyright enforcement is using cutting edge technology.

This is terrible, and it needs to change.

Copyright is important, don’t get me wrong, but we need to stop treating it as though it is some fundamental, inalienable right which must be protected at all costs. Copyright law needs to strike a reasonable balance between protection and re-use, one that encourages and rewards creation, without discouraging new creation for fear of potential infringement. And perhaps most importantly, it needs to set some clear guidelines on what is and is not permissible vis-a-vi re-use and fair use, instead of just saying “well, we’ll know it when we see it… in court.”

These sorts of changes will go a long way towards bringing copyright into the 21st century, helping it make sense again, and put a stop to the utter madness that is the state of copyright law and enforcement today.