Users’ Rights and the Rhetoric of Reform

Exceptions and limitations? Or users’ rights? It seems like there’s been a lot of talk as of late as to how the framing of this aspect of copyright law affects prospects for reform.

I’m sympathetic to criticisms of the “exceptions and limitations” framing, and think there’s good evidence that it adds rhetorical clout to attempts to enlarge copyright’s scope. It’s the rule, after all, and not the exception! But I have to be honest: I don’t like the users’ rights alternative much either. I had the opportunity to briefly raise that objection at the CC Global Summit in Seoul, but now that I’m thinking about it I want to elaborate on what I think users’ rights language fails to capture.

First and foremost, I’m not sold on the phrase’s power to speak to creators. Yes, those of us who are deeply embedded in these issues get it: creators are users too, so users’ rights are authors’ rights. But that’s not exactly an intuitive reading, and it’s not helped by the fact that that “user” seems to act, intentionally or not, in contradistinction to “author.”

Beyond that, authors’ interest in exceptions and limitations users’ rights whatever we’re calling them strikes me as much broader than just their interests as users. Yes, improved access to sources, being able to quote and criticize, etc. are all ways in which E&Ls/URs relate to authors’ use of third-party works (or, often ways in which authors build upon their own works after having transferred rights).

But authors also have a stake in E&L/URs as authors. Absolute copyright would frustrate many authors’ interests in having their works preserved, in having their works reach larger audiences through lending libraries, in having their works reach underserved communities such as the print disabled. Sure, that’s a relationship with “authors” and with “users,” but framing a mutually beneficial relationship as a right held by one party seems to downplay its laudable symbiotic aspects. And then there are limits on copyright’s scope that seem to primarily benefit creators without there exactly being users. In this regard scènes à faire and the idea/expression distinction come to mind—these are “limits,” but authors who operate in their shadow aren’t, almost by definition, users of copyrighted works.

I have aesthetic qualms as well. CC’s Ryan Merkley pointed out that it seems like “users” language only comes up when talking about drugs and copyright. There must be a term that feels more empowering than “user”! It comes without its own baggage and I can’t exactly endorse it, but even just “public” feels better to me.

I really haven’t had the time to think of alternative terminology, so this is probably not the world’s most productive nitpicking. But there’s time for that still!