By Peter K. Yu
Policymakers interested in promoting freedom and creativity in their nations need to design a copyright system that mutually promotes and protects intellectual property rights and Internet freedom.
Peter K. Yu holds the Kern Family Chair in Intellectual Property Law and is the founding director of the Intellectual Property Law Center at Drake University Law School in Des Moines, Iowa. This article appears in the “Defining Internet Freedom” issue of eJournal USA.
Internet freedom and intellectual property rights are complementary protections, but they sometimes imply competing values, resulting in conflicts. Because these conflicts vary according to historical, political, social, cultural, and religious contexts, the intellectual property standards each country has fashioned have different ramifications for the protection of Internet freedom.
The Benefits of Copyright Protection
In many countries, including the United States, copyright protection helps sustain an independent creative sector. Before the emergence of copyright, writers, musicians, playwrights, and other creative artists relied upon state sponsorship and elite patronage. With this support came constraints on artistic freedom. Brave were those artists who dared to offend their supporting patrons or, worse, risked their lives for the sake of art.
Copyright protection solves this dilemma. By granting exclusive rights to profit, copyright enables artists to recoup their investment in time, effort, and resources. It allows them to create and disseminate works according to their interests, tastes, and talents. It also protects them against pressure from government or wealthy patrons.
Copyright serves the same function on the Internet. Although many netizens have created and disseminated content online without any commercial motivation, copyright enables online artists to reap rewards when and where they choose. Just as in print or on a canvas, copyright allows artists to create without constraints imposed by others. It gives them an important form of Internet freedom.
Balancing Between Two Competing Freedoms
Unfortunately, the freedom of Internet creators sometimes conflicts with that of Internet users. Because copyright law restricts the users’ ability to reuse stories, artwork, photos, music, and videos they find on the Internet, users complain about their lack of freedom online.
To strike a balance between these competing freedoms, copyright law includes an array of limitations, exceptions, and defenses. For example, the law distinguishes between unprotectable ideas (all humans are equal) and protectable expressions (an essay arguing for human equality). It also allows for fair use of copyrighted content, such as quoting a passage, writing a book review, or making a parody. Although copyright law does not afford Internet users unlimited freedom, it actively balances this freedom against the freedom of Internet creators.
A Different Balance for Repressive Countries
In countries that heavily restrict information flows or substantially control local cultural industries, greater conflict between Internet freedom and intellectual property rights may arise. While support of an independent creative sector is important, enabling the public to express itself online is equally important. Under certain circumstances, the need for the latter outweighs that of the former.
In those situations, Internet users have a strong need to reuse without permission materials previously approved by censors or that are only available abroad. For example, to provide an alternative source of information, users may need to repost copyrighted stories, videos, or photos that otherwise would not have been available. They may also need to repurpose preexisting materials to address issues that they otherwise cannot discuss because of government censorship.
In repressive societies, parodies, satires, coded words, euphemisms, and allusions to popular culture have become dominant vehicles of communication. Materials seemingly unrelated to the original intended message are often used to create associations, build in tacit meanings, provide emotional effects, and ultimately avoid censorship. Whether it is a remix of video clips from Western movies or the synchronization of content to rock ‘n roll songs, repurposed contents carry within them rich hidden meanings that provide important social commentary.
Although we sometimes distinguish works that are of public interest — such as news stories — from those that are created for commercial or entertainment purposes, this type of distinction is usually unhelpful in countries where circulation of information is limited. Although many entertainment products are uncontroversial, highly commercial, and seemingly frivolous, they nonetheless may contain useful political information.
It is, indeed, not uncommon to find movies or television programs portraying different forms of government, the need for checks and balances or separation of powers, and the protection of constitutional rights and civil liberties. While these commercial products may have been created to provide entertainment, in some countries they also supply an important window to the outside world.
Moreover, not everybody can be an original artist. Nor is it ideal for everybody to do so, given how some governments have mistreated artists and original thinkers. In some countries, reusing, sampling, or repurposing materials drawn from popular culture can be an effective means of capturing public attention and imagination. Because these materials are created and copyrighted by others, conflict can arise between Internet freedom and intellectual property rights.
If the copyright system strikes an inappropriate balance between these two forms of protections, citizens in a repressive country will have fewer opportunities to creatively reuse existing materials. With fewer politically secure ways to express themselves, they will also be less empowered to speak. In the end, they will have fewer opportunities to engage in civic debate, foster democratic self-governance, promote ideological and expressive diversity, and ultimately provide political, social, and cultural change. The development of civil society will be stifled.
Potential Abuse of Copyright Protection
Intellectual property protection has sometimes been used as a pretext to silence dissent. Where reused materials are copyrighted, political authorities can easily claim copyright infringement without admitting censorship. Copyright protection, while fully legitimate in other contexts, has unfortunately been used in this context to provide legitimization for actions that may violate human rights.
Required monitoring of Internet users is another growing and disturbing trend. Here, governments require Internet service providers to facilitate copyright protection by monitoring users, filtering web content and retaining data about subscriber activities. The similarities between these requirements and those of censors are obvious. After all, copyright started in England as a political tool to suppress heresy and dissent.
Internet surveillance for copyright purposes can be as dangerous as Internet surveillance for censorship purposes. Political authorities, for example, can easily ask Internet service providers to turn over information about their subscribers’ potentially illegal online activities, such as copyright infringement. This information could lead to arrest, harassment, intimidation or detention of Internet dissidents. It could also be used as evidence to substantiate prison sentences.
Even worse, the collection of subscriber information can lead to self-censorship. If Internet users fear that officials would use the collected information to reconstruct past Internet activities, they might become more reluctant to discuss sensitive matters online. A vicious cycle would emerge. Not only would Internet users enjoy less freedom, they also would have fewer incentives to create—precisely the opposite result copyright intends to achieve.
The Need for a Proper Balance
The protection of intellectual property rights can be a boon for Internet freedom, but it can also be a bane. For each to beneficially reinforce the other, the intellectual property system must be harnessed to promote Internet freedom. In countries where information flows are heavily restricted, the balance in copyright law may need further adjustment to reflect the drastically different local circumstances.
To promote greater Internet freedom, policymakers need to pay special attention to the limitations and exceptions to copyright. For example, they can introduce the fair use doctrine, the parody defense, an exception for educational use, or limitations on adaptation rights. They can also confine criminal penalties to commercial-scale piracy, as opposed to ordinary infringement by Internet users.
By introducing these balancing measures, policymakers will be able to turn the conflict between Internet freedom and intellectual property rights into an opportunity for creating useful and synergistic complements. Combined together in a constructive way, Internet freedom and intellectual property rights will help citizens realize the full potential of the Internet. They will also provide freedom for both Internet creators and Internet users.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.