WIPIP 2020, Day 2 panel 4

Panel 4: Copyright
Stephanie Bair, Copyright’s Hidden Costs
We’ve used the creativity literature to examine the benefits side of ©, but not necessarily the costs. The benefits of engaging in creative pursuits/having creative skills: being good at problem finding, being good at problem solving, being able to balance convergent and divergent thinking. These are talents but also skills that can benefit from exercise and practice. People who score higher on creativity measures enjoy a range of surprising life benefits, including better relationships, more relationship satisfaction, better ability to handle life challenges big & small, and even lower suicide rates/lower rates of suicide ideation. When you have creative skills, you employ that not just when you’re writing a book or working on a song, but when your partner does something surprising.
Downstream creative activities like home produced YT video using other music; fan fiction; Baby Yoda memes: if fair use is more available to you if you are a celebrity than if you are not, that has implications. Suppression of activities might be more costly than we previously thought b/c these are the types of activities that give people the opportunity to be creative in everyday life, work their creative muscles.
Q: is this lumpily distributed? Are some people just creative in only one domain and not in others? If so, should that inform IP?
A: not thinking yet about doctrine, though for fair use it doesn’t matter what the subject matter is.
Ochoa: benefits of ©: not really about incentivizing creation, but about incentivizing distribution: publishers want exclusivity. Similarly on the cost side, © isn’t inhibiting everyday activities but it is inhibiting commercialization/distribution of these products b/c people are doing these things every day by and large despite the law/b/c of tolerated use; © isn’t costing us creation but it is costing us distribution.
A: that is relevant b/c creation is at the heart of what she’s doing, not distribution.
Charles Duan: similar to The Cathedral and the Bazaar, two different models for developing software.
RT: OTW NTIA report on the benefits at issue—and it is clear that creating a community has huge positive effects; distribution does matter a lot.
Rub: agrees w/ Ochoa, but chilling might be an issue. Also questions of limits on access to source material.
Ochoa: chilling effects come from C&D [or Content ID/DMCA].
Amanda Reid, Social Utility of Music: A Case for a Copyright Exemption for Therapeutic Uses
High transaction costs, low revenues, high benefits: matches the case for other statutory carveouts like face to face teaching. Long history of using music to heal and soothe, likely related to innate properties of musicality; no culture so far found lacks music.  Can help people bypass injured areas of the brain.
Can use song choice & lyric analysis for therapy; can help preterm infants learn to feed by helping them suck in rhythm; improvisation and singalong can be therapeutic; so can song transformation/changing the words to make them more meaningful personally; music legacy and collage to help deal with the end of life: being able to leave behind an artifact is important. Teenager w/inoperable concert wanted to sing Rudolph, the Red Nosed Reindeer for her family—mad scramble for a license, but music therapist served as gatekeeper telling family not to create this artifact w/o a license.  The music licensors are a nightmare for therapeutic purposes, e.g. they may want to hand out sheet music or create a mix tape or change the lyrics—all of these are different rights holders. ASCAP license won’t suffice.
Music therapy has prosocial functional use. Fair use is too unpredictable/ad hoc.
Eric Goldman: the paper is the foundation of advocacy, and it justifies that additional work.
A: heavy responsibility to do no damage, not put it under the microscope for rights holders.
Ramsey: they will oppose. Consider a compulsory license with a small payment?
A: it’s just not much money, in line with the existing exemptions, and even small payment is a big hurdle.
Q: would you reduce the incentive to create therapeutic music?
A: those rhythms are for the nutritive sucking, it’s not an expressive creation. No diminution of creation.
Q: but you can buy relaxation music on iTunes. What about that?
A: will consider. Biggest barrier is establishing a limiting principle: a therapeutic relationship with a therapist who has a health goal. Can discuss licensing/credentialling. Not just music that makes a person happy.
Q: what do you think the hard cases are? Can Dr. Phil create a mix tape for everyone?
A: no, it has to be individualized. Sometimes a particular song reminds a person of an incident they’re working through. Therapists are worried they’re going to get in trouble—if it becomes known what they’re doing. They hear about schools getting C&D letters; they don’t feel they can rely on fair use.
Q: could a hospital then have a music therapist on staff?
A: yes, that seems right.
Ochoa: why are these people so risk averse?
A: they do, they just hope they don’t get caught. Statutory damages are scary.
Q: then we need to change the perception. Recent issue with Disney billing a PTA: there was a huge backlash. Maybe you really need to attack the fear. Music industry is likely to try to reduce any statutory exemption to a useless, dead letter. An exemption that’s too narrow may be less effective than teaching people to stop worrying.
A: even an exemption creates a bit of a bubble around it.
Q: sure [though fair use should do that too].
Duan: it’s a useful finding that the therapists are scared, in itself.
Rub: if they don’t trust fair use, why would they trust the kind of highly limited, technical provision that is likely to result from legislative bargaining?
A: Good question. context: heavy regulation, such as HIPAA—they’re wound tight for good reasons related to the regulation in general. Hospitals sometimes get nastygrams from ASCAP.
Q: good place for best practices.
A: doesn’t help risk aversion.
Q: yes, it does—that’s what they’re for—the documentarians have found best practices workable.
Q: as a non © person, it seems weird that we say “let’s have all these laws, but people should just ignore them.”
A: fair use isn’t an infringement.
Q: but lack of clarity means we’re not really sure. In patent law we don’t really care if a single person is doing something, but in © every act of an ordinary person implicates © law and we have a nebulous doctrine.
Bridy: are these even public performances, in therapy?
A: no, they aren’t. But there may be exceptions, such as a cabaret performance for special needs children organized by a therapist.

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