aethel: (illustrated [by morebutterflys])
So for the past two weeks (!!) wank has been happening at fail_fandomanon regarding podfic and asking permission and what to do when the fan writer has gafiated (and how can you tell for sure?). Podfic fans have been freaking out. Meanwhile, I have been reminded of all the other things I'm into that got dragged through the dirt and misrepresented on ffa. On ffa, it is a truth universally acknowledged that [insert bizarre misconception about thing you were involved in here].

I had some vague notion of relating the current discussion to the topic of Orphan Works, which is a major issue in the real world, not just something entitled podficcers whine about. (That was sarcasm.) And then an ffa anon beat me to it, but that's okay. Their comment articulates fans' varying relationships to copyright law very clearly.

U.S. law, a.k.a. synthesis of Wikipedia and various discussions and analyses I've read, not my own "original" idea: Orphan works are works that have apparently been abandoned by their copyright owner, whom no one can contact or even in some cases identify, but are still in copyright. So no one can use them because you can be sure that if you actually make a profit (or even if you don't), people will come out of the woodwork to claim it and sue your pants off. So, you know, that's a quick way to find out who the copyright owner is. The early history of film is crumbling to dust, but we can't save it because someone owns the copyright (probably). The U.S. tried to solve this legislatively and failed.

The orphan works problem wouldn't be so bad if a) copyright weren't automatic and b) copyright term weren't so egregiously long. Before automatic copyright, you had to register your copyright, which meant that there would be a record of ownership that someone who wanted to make use of the work could look up and use to contact you to ask permission. After automatic copyright, it became more difficult to figure out who owned what. But again it wouldn't have been so bad if you could wait out the copyright term. Except now the copyright term is so long that waiting isn't really an option. After a certain point, people won't wait; they'll either use it anyway or forget that it existed. (Forgetting that cultural objects existed should be a depressing prospect to any person contemplating their own mortality, not just academics.) This is why no one cares about Mickey Mouse anymore. And so our commercial culture producers keep on reinventing the wheel AND reusing the pitifully few public domain stories that are still relevant (because being truly original is not only impossible, but also financially risky) while everyone on the internet is making new culture illegally (or not, but who can afford a lawyer?), but no one can really acknowledge it officially, except for the lawyers distributing DMCA notices, which means fewer permanent records and fading memory and virtual crumbling into dust.

(But the internet didn't invent culture, although we never saw GIFs before. The internet made a lot of cultural activity illegal at the same time that it made it visible. Copyright is only an issue when a copy is made and distributed, which doesn't happen when you are drawing the Millennium Falcon in your sketchbook or acting out episodes from Star Trek with your friends. In conclusion, read Free Culture.)

The upshot is that current U.S. copyright law is broken in many places and not a good model for fandom to follow without modification (especially since we're already breaking it in the way some of us acquire and use canon). But copyright isn't necessarily a good model anyway, considering that the incentives for creating fanworks are so different from the economic free market that U.S. law assumes. The purpose of copyright law (in the U.S. at least) is to allow artists to make a living at their art instead of having to get a day job so that everyone else will enjoy the benefits of having more and better art. Well, we already have day jobs, and we're already making a lot of this stuff for free, and we're already enjoying the benefits of other people making it for free. The incentives in fandom -- the joy of creating, the joy of sharing, the joy of getting positive feedback, the joy of having fangirls, (the joy of having started a new trope?) -- require proper attribution, but not necessarily copy protection. The only real downside to a lack of copy protection is the possibility that people who want their works copy protected won't post them at all.

P.S. I am not a lawyer.

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æthel the aardvark

May 2017

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