IP in the Public Interest

Written By:  Jessica Silbey

If you’re a Harry Potter fan — or your kids are — wouldn’t it be fun to participate in (or watch) a play or an opera about Harry Potter and his friends and adventures? Wouldn’t you be thrilled to see your kids (or your students) busy at work making a video that brings Harry into the 24th century, combining sorcery with space travel? How about a dramatic reading of Turow’s “One L” in your law school’s dining hall, as a community event for students studying late night and needing a break?

I am regularly encountering creative and community-building and educational performances, adaptations or transformations of original works (such as Harry Potter).  I am also regularly encountering anxiety from the adapters and transformers about the possible illegality of their work. Usually, these folks are right to be worried that they are trespassing. Making a “derivative work” of someone’s original work violates the original work owner’s copyright, specifically 17 USC 106(2).  Publicly performing someone’s original work also violates that person’s copyright, see 17 USC 106(4). There are limitations and exceptions to these broad rules, of course, but they are complex and fine-grained. And most people who are remixing or mashing (or simply rehearsing) for fun, are unfamiliar with the complexity or fine-grained nature of copyright laws and instead are worried about allegations of infringement or pirate that has become so common these days.

There are lots of folks in the legal academy who are working on proposals for legal reform that would make many non-profit, personal or semi-private, educational or scholarly uses and reuses of original material exempt from copyright infringment. There are also lots of folks in the legal practice world who are litigating cases with an aim toward making headway in the courts toward clearer exemptions, such as EFF and the Stanford Fair Use Project. Also, there are organizations, such as Public Knowledge or Creative Commons, that are working institutionally towards less costly (e.g., fewer transaction costs or less expensive or free) access to such works. This is not only a copyright issue, but a patent issue. Access to medicine or treatment can be blocked because of proprietary claims to methods of treatment and diagnostic tools.

Intellectual property is a legal subject that few consider to raise social justice issues. But it does. Cultural flourishing. Education. Health. Access to information. As we see criminal defense clinics in most law schools, immigration clinics in most law schools, family law clinics in most law schools, we are starting to see intellectual property clinics in some law schools, see here, here and here as examples.  This is exciting. I feel sure that this generation of law students is more attuned and more able to see the connections between digital culture, technological innovation and social justice. We as law teachers have the responsibility to put the programs in place to challenge these students and hone their skills that will be relevant for the work of the 21st century. I feel sure that intellectual property is at the center of that work. Think networks (open to closed), informational privacy (less to more, granular or modular), cultural products (diverse and available to feudalized and monopolized), health care and technology. It’s overwhelming when you begin thinking about it.