Remixing the Copyright System: A Look at the Problems Faced by the Creators of Remixes and the Recent Attempts to Solve the Problem

In July 2013, the Department of Commerce’s (“DOC”) Internet Policy Task Force released a green paper called Copyright Right Policy, Creativity, and Innovation in the Digital Economy. This paper sought public comment on a number of specific challenges in copyright law brought about by the digital revolution, with copyrightable works now being easy to access, copy, and modify by anyone in the world through the Internet. One challenge involves the creation of remixes which is the creative modification or combination of existing works into a new work. At least two major problems with remixes exist. First, remixers face innovation-chilling risks even when fair use should apply. Second, it is hard to obtain licenses and to find copyright holders when fair use does not apply.

Innovation is at risk. Remixes often qualify as compilations and derivative works and are usually composed of many different copyrighted works. Permission must be obtained or compensation must be paid to each copyright owner, unless the use qualifies as fair use. The problem is that fair use is a fact-intensive inquiry by courts and it is hard for anyone to determine beforehand whether a particular remix or any portion of a remix falls under fair use. Yet, individuals face disproportionate statutory damages if they get fair use wrong. The dizzying array of concerns in producing a single remix has serious chilling effects on creativity contrary to the goals of copyright law.

The remix debate sets an important foundation because it is clear that the digital world will continue to offer gifts of new forms of creativity and that all parties will need to work together to develop a system that compensates copyright holders without hindering these new areas of creativity.

Remixers face a serious licensing challenge. It is hard to compensate or to obtain permission from the many different copyright holders for a single remix. The private sector has attempted to offer some solutions. Creative Commons offers licenses for use by copyright holders to allow the public to create remixes that include their protected work. However, the benefit of such a solution is limited by how many authors use the licenses.  Automated technological solutions such as Google’s Content ID system have proven to be problematic and lacking in the ability to correctly identify fair use and material in the public domain. Even when some licenses allow for remixing, remixers still face serious problems because different copyrighted works may contain different types of copyright licenses and some works may be orphaned works with no known copyright holders to contact.

The DOC received over 80 comments in response to its green paper on copyright policy.  The Recording Industry Association of America pointed out that the term “remix” has been used to describe a wide variety of works and that more exact definitions might be necessary when considering future policies and legal frameworks. The Organization for Transformative Works highlighted the unique contributions that noncommercial fanworks offer to learning.  Participants in fandom, fan fiction, and other areas of remix culture are inspired to create, write, draw, and to learn audio and video editing computer skills, in tune with the goals of copyright law.

The remix debate sets an important foundation because it is clear that the digital world will continue to offer gifts of new forms of creativity and that all parties will need to work together to develop a system that compensates copyright holders without hindering these new areas of creativity.