Daft Idea Of The Week: Giving People Copyright In Their Faces
from the real-facepalm dept
Copyright maximalism has proceeded along two axes. The first is the term of copyright, which has been steadily extended from the basic 14 years of the 1710 Statute of Anne to today's life + 50 or 70 years, depending on the jurisdiction. The other is the scope of copyright, where there are constant attempts to make yet more fields of human endeavor subject to it – for example fashion or food.
It's a sad sign of how pervasive this idea of granting a copyright monopoly on everything has become that all sorts of people are starting to offer suggestions - like this proposal from privacy groups to give people copyright in their faces:
The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook’s much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.
The author of those words, Derek Bambauer, points out two Constitutional problems. First, that it's the author of a work that gets the copyright, and that would be the person who fixes your face as a photo, say. This would lead to the fun situation where somebody else would own the copyright to your face. The other issue is that you can't copyright facts, and your face, however expressive you might make it, is just a physical fact in its natural state.
Bambrauer also notes deep practical problems with the idea:
So, the proposal is unconstitutional. It’s also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer – subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine – it invites courts to inject their normative views into the analysis.
Much the same could be said of existing copyright works in the online world. "Bystanders" of digital content – for example, people who record their children dancing to music - are regarded as infringers by the recording companies, even though their "use" is entirely a function of the ubiquity of material covered by copyright.
Fortunately, courts do indeed try to "mitigate the harsh effects of this regime" by declaring such things fair use - in some countries at least. But it's a pity that the stupidity of trying to enforce copyright for such incidental uses isn't as manifestly self-evident as it is for the idea of giving people copyright in their faces.