In Justifying Intellectal Property, Merges discusses Kant's understanding of autonomy and how this relates to an individual's right to possess and have control over property they have created. A creator cannot have autonomy unless he or she can exercise ownership over their creative work, and profit off of this ownership. Obviously, part of this right involves the ability to alienate his or her work. In many creative industries, the creator exercises this right to alienate by selling the copyright of their work to a distributor (such as a record label or a publishing house).
All of this talk about autonomy got me thinking about the upcoming legal battle over the termination of artistic licenses. For those who don't know, when copyright law was revised in the 1970's, a provision was included that allowed all creators of works of art after 1978 "termination rights" that allow them to reclaim ownership after 35 years as long as they apply two years in advance. From a perspective that values autonomy, this seems great. The artist gives up their right to license their work in exchange for a larger audience that (especially before the internet) only a record label or a publisher could provide. However, since the distributor didn't add anything artistically to the work, and often has unequal bargaining power when drafting the contract for the rights, the decision of what to do with the work after a certain amount of time reverts back to the individual or group of individuals that we see as having the most right to exercise control over that work. Full autonomy is restored to the creator, hurray.
Obviously the recording industry is not very excited about the prospect of losing a lot of valuable titles from their catalogs. However, there does seem to be one bright spot for the industry. The law states:
"A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant."
Some commentators have taken this to mean that any work that is remastered, and therefore a "derivative work" would not be subject to termiation rights. Which means that while the artists themselves can now make money off of their songs, they won't be the only ones. This got me thinking about the post that Nick wrote about which is more valuable, perfection or originality. Because here, it seems that the artist is on the side of originality, and the record industry on the side of perfection. Obviously some "labor" in the Lockean sense, was put in to remastering these titles and making them perfect for the listener. Does this mean that they can claim essentially equal rights to the perfected work as the artist can claim in the original?
I'm interested to read Merges chapter on the principle of proportionality, because this seems to be a classic question of who deserves more credit for the value that was created in these works of art. On the one hand, the record industry took a risk on the artist originally, and so perhaps the fact that they properly jduged their talent, along with the time and money spent remastering, is enough of a contribution to merit a continued slice of the pie. On the other hand, if we think the individual autonomy of the creator is most important, and that some of that autonomy is sacraficed because of unfair bargaining power in the original contract negotiations, perhaps we see termination rights as the righful conclusion. After all, the record industry did get to profit off of the work and determine how it would be used for 35 years, perhaps now it is the artist's turn.
This discussion also ties in to Merges talk of corporate holders of IP, as opposed to the individual. I think he is right that corporations provide valuable resources to individual creative professionals, and that many of these professionals would not be able to do the work they do without their "corporate sponsors." However, there is this gut feeling that more of the pie should be going to the actual creative individual or group of individuals, which I think explains why this change to the law occurred in the first place.
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