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Deregulating Amateur Creativity
By Lawrence Lessig
The following is an excerpt from Lessig's new book 'Remix: Making Art and Commerce Thrive in the Hybrid Economy.'—Editor
THE FIRST change is the most obvious: we need to restore a copyright law that leaves "amateur creativity" free from regulation. Or put differently, we need to revive the kind of outrage that Sousa felt at the very idea that the law would regulate the equivalent of the "young people together singing the songs of the day or the old songs." This was our history. This history encouraged a wide range of creativity. And even if the twentieth century lulled us into a couch-potato stupor, there's no justification for permitting that stupor to sanction the radical change that the law, in the context of digital technologies, has now effected—the regulation, again, of amateur culture. That regulation could be avoided most simply by exempting "noncommercial" uses from the scope of the rights granted by copyright. No doubt that line is hard to draw. But the law has already drawn it in many different copyright contexts. Eight sections of the Copyright Act explicitly distinguish their applications based upon the difference between commercial and noncommercial use. A jurisprudence could develop to help guide the distinction here as well.
This exemption should at least be made for noncommercial, or amateur, remix. The YouTube video of Stephanie Lenz's eighteen-month-old is amateur creativity; DJ Danger Mouse's remix of the Beatles' White and Jay-Z's Black albums is professional creativity. We can now see at least one clear example of where culture should be deregulated—amateur remix. There is no good reason for copyright law to regulate this creativity. There is plenty of reason—both costs and creative—for it to leave that bit free. At a minimum, Congress should exempt this class of creative work from the requirements of clearing rights to create.
By contrast, copies of professional work should continue to be regulated in the traditional manner. The right to distribute these could, in this model, remain within the exclusive control of the copyright holder.
Professional remix, and amateur distribution, are more complicated cases. There should be a broad swath of freedom for professionals to remix existed copyright work; there's little reason to worry much about amateur or noncommercial distribution of creative work—at least if the compensation plan described below is adopted. These categories could thus also be deregulated partially. But neither should be deregulated to the extent that amateur remix should.
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What about "fair use"? By "deregulating," I don't mean the doctrine of fair use. I mean free use. Fair use is a critically important safety valve within copyright law. But it remains, perhaps necessarily, an extraordinarily complicated balancing act, and a totally inappropriate burden for most amateur creators. My recommendation is that Congress exempt an area of creative work from the requirements of fair use or the restriction of copyright. It is not that courts find ways to balance the system to free use. By contrast, fair use would remain a critical part of any professional creativity.
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