I’m not talking about a spooky looking monster, dead set on ending the world as we know it, or a sticky ooze that slowly trickles over the planet because we destroyed the rainforest. Copyright creep is an expression that refers to the expansion of copyright law and policy, inching and slinking its way into aspects of life that surely James Madison did not anticipate. Copyright extension, end user license agreements (EULAs), automatic copyright, digital rights management (DRM)…and the list goes on.
DRM, for example, which was initially employed to limit copyright infringement in the digital environment (“don’t open that lock, if you don’t have the key”), has become a way of limiting competition and consumer choice in the marketplace. And not just copyrighted works. We have light bulbs, printer cartridges, pods of coffee, and cat litter boxes that are protected by DRM because there is software or some other digital technology inside the product that makes it operate. If you want the product to operate in a different way—say use water rather than the industry specified cleansing solution to clean your litter box– well think twice. This is a violation of copyright. Copyright creeped into the life of the everyday coffee drinker, the lawful owner of the Keurig machine, but evident examples of the way the Internet of Things has implicated copyright law is only part of the story.
Copyright creep has affected the way people perceive risk, even in the non-digital world. I get questions from librarians who are wondering if it’s okay for the school principal to read a poem aloud at commencement. I’ve been asked if children can draw pictures of Garfield, because some kids can draw a picture that looks so much like Garfield, it must be a copy. One teacher wondered if she could tape 2nd grade students singing Christmas songs. Why are people concerned with these things? Did they develop overly cautious and sometimes irrational rules to protect themselves, their jobs and their institutions? Copyright lawsuits, with huge statutory damages sought from mothers videotaping their toddlers dance to music, seem to be an everyday occasion. I believe people fear copyright like they never have before. Hey, the Girl Scouts were sued for singing Happy Birthday—a song that some proclaim is still protected by copyright (it’s not)—so no one is safe from the copyright creep.
The copyright creep may be the most dangerous when it crushes intellectual and artistic freedom. There are lots of examples of documentary filmmakers who worry about the risk of liability when music or television is playing in the background of their films. How about the dancer becoming concerned about copyright when she notices she may be dancing too much like Martha Graham. Is she infringing Martha Graham’s copyright? A public library in Connecticut was forced to take down a painting that included a depiction of Mother Teresa among other famous women, with one in the group holding a Planned Parenthood sign. A conservative elected official didn’t like seeing Mother Teresa standing with a pro-choice advocate, so why not use copyright law to take care of the problem? Apparently Mother Teresa is protected by copyright, and depictions of her without the prior permission of Mother Teresa are forbidden. Didn’t you know that?
Yet, I see hope on the horizon for eradicating copyright creep. Education is part of the solution. We need to better inform people so they have a clearer understanding of what copyright is. It was created to advance learning, creativity and innovation. By understanding that technology is not inherently bad, the courts have made sound decisions about fair use. People can do things with technology that they never could do before (like making YouTube videos), and that’s okay. Congress is considering ways to limit the reach of anti-circumvention DRM so people can use their lawfully purchased products in the ways that they desire. Communities have developed fair use best practices to provide copyright guidance. Balanced copyright advocacy has grown.
We have seen the copyright creep and understand its purposes and targets. You can see it in the daytime as well as at night so it is easier to report sightings. The creep emits a bad smell from its murky dealings so we know if it is right behind us. We will learn more about the creep by remaining diligent. And we will be ready. We have a slew of library and user advocates ready to do their part to get rid of the creep, or just make it go away… far, far away.