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Q&A: Ginsburg discusses copyrights

Jane Ginsburg is the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia University. She teaches, studies and publishes works on domestic and international copyright and trademark laws. In Herrick Chapel yesterday, Ginsburg gave a convocation address titled “The Author’s Place in the Future of Copyright.” Her presentation focused on authors’ rights under current U.S. copyright law, and how authors can protect their rights to published works.

Jane C. Ginsberg discussed copyright law and politics Thursday morning in Herrick chapel during this week's convocation talk. Photograph taken by Avery Rowlison.

What, in your opinion, should be the first priority of copyright laws?
To provide or to create an atmosphere which fosters creativity.

Do you feel that current copyright laws do that?
They could do better. For one thing, I don’t think that authors participate as fully in the copyright system as would be desirable in the sense that often authors don’t get to control their copyrights or are not adequately remunerated for their copyrights.

Do you believe, and I’m going to quote from your paper, that authorship should be “the functional and moral center of the system”?

And are there reasons for that other than to foster creativity? Is there something specific about authors as opposed to other groups?
Well, if you don’t have rights of authorship then you don’t have anything else. That’s why I did the little parable of the reader and the author—no authors, no readers.

Do author-friendly contracts also tend to be good for consumers and distributors, or do the groups’ interests tend to conflict?
The goal is to have the work be distributed to the public, who wants access to the works, but to be distributed in a way that where money is to be had, the author will have it, and with respect to control the author determines what will be done with the work.

There are some people who would very much disagree with that second proposition. Some people would say, ‘Ok, I can see that authors want to get paid. If you want to have professional authors we can’t rely on volunteers or on the independently wealthy, or even on law professors who are otherwise paid, to create the entire corpus of works that we would like to have as a society. But once the author has created the work, once the author has put it out there for the public to enjoy, the author should not be able to control what people do with the work thereafter. For example, if they want to write sequels, or if they want to write a novel. Other people could turn it into a play or a movie, or a prequel where people break out of character, or do something else. You’ve sort of ejected the work into the public discourse and that’s the end of it.’

I very much disagree with that. I think that copyright is also about artistic vision as much as it is about getting paid, and I recognize that authors certainly can’t stop people from commenting on, writing about, criticizing, parodying, doing all those other things with the work. And sometimes the line between a parody and a sequel may not always be clear. But I do think that it is up to the author to decide how the book should be marketed and what subsidiary rights should be exploited. And I think that that’s consistent with the notion that the work is the author’s property, not in an absolute sense, but at least in part. And more importantly, if you want to argue it not on property rights but in terms of incentives, it matters to authors whether they have an artistic vision that they can preserve. If you tell an author, ‘Once you release this work, it becomes appropriated by the public and we’ll continue to pay you but you have absolutely no say in whether Harry Potter becomes an axe murderer,’ I think that that does matter. That’s a part of the ‘atmosphere that fosters creativity.’

Is there a way to protect digital copyright that’s going to be relevant for more than a couple of months, or does that just not exist right now?
Sure it exists. Many of the new models of exploiting works, like the cloud computers and such, all of those models are based on access, and access can be controlled. A subscription model is an access model. If you want access to the records on Rhapsody or Pandora or whatever networks, it’s illegal to hack in, and while undoubtedly some people can do it, as a general matter people actually do pay for access. So that’s one way in which digital makes works more available but it’s not uncontrolled.

Then are we moving towards a more subscription or license Internet, such as what the New York Times is doing? Is that the direction that you think this is going?
I think we’ll see a lot more of those business models. The Times will be interesting to see if they make a go of it. It’s harder to go from free to paid as opposed to one form of paid to another form of paid.

Are there other viable options, or are subscriptions probably the best way right now?
Well, people generally don’t like copy controls. When you buy a CD, people don’t like the idea that they can only play it on certain machines, or other restrictions that pertain to physical copies. Most people have the feeling that if you have a physical copy it’s yours and you should be able to enjoy it in a variety of ways. It doesn’t matter if it came with a shrink-wrapped license or anything like that; it’s just people’s reaction. Whereas if you’re getting something in the dematerialized online streaming format, I’m not sure people have the same expectations of total autonomy with respect to what they can do with the work. It’s not theirs in the same way that a physical copy is, that they feel is theirs. I think that that’s where the reaction comes from, but I think that with the subscription models, if they’re successful it’s because they don’t rebel against a set of settled expectations. In that way the copy control models are a harder sell.

Is the Internet still the front line of copyright law conflicts or are there other areas that are starting to be problematic?
The Internet is certainly not the only way that works for distributing. It’s the one that captures most attention because a lot of it still remains to be tamed, if that’s the right word, and also because of the international dimension. Anything, any website that you can view in the United States, you can view in most other countries unless the authority for those countries are blocking access, but otherwise your website will certainly be viewable in Argentina, in France, in Japan, and so forth.

There are a lot of authors at Grinnell. I was interested in a tip for how new authors would be able to get publishers to agree to author-friendly contracts, as opposed to getting booted out the door and them finding another patsy.
Go to our website, We can’t give legal advice, but we do answer questions, so you can send us questions. We invite people to send us work contracts which we then translate and post. I think an important lesson is don’t be intimidated. Don’t be excessively grateful. After all, if you’ve gotten to the point where they’re offering you a publishing contract, they’ve already decided that they want you. So you probably have more bargaining power than you think.

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