The Cycle Of Copyright: Originally A Tool For Censorship, Attempted As A Tool For Incentives… Back To A Tool For Censorship

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If you want to understand copyright law, its history, and how it’s been abused, you really ought to read this excellent overview by law professor and practicing intellectual property attorney, Lydia Pallas Loren, called The Purpose of Copyright (found via Teleread). The article kicks off with a point that we’ve made over and over again here, that many people incorrectly believe the purpose of copyright law is to protect creators. Unfortunately, this false belief permeates many in society — including copyright lawyers:

Copyright permeates our lives and yet, despite its impact on our lives, relatively few people, including lawyers, have sufficient knowledge or understanding of what copyright is. And far too many people, including lawyers, have major misconceptions concerning copyright. These misconceptions are causing a dangerous shift in copyright protection, a shift that threatens the advancement of knowledge and learning in this country. This shift that we are experiencing in copyright law reflects a move away from viewing copyright as a monopoly that the public is willing to tolerate in order to encourage innovation and creation of new works to viewing copyright as a significant asset to this country’s economy. The most recent example of this shift is the new Digital Millennium Copyright Act, sign by the President on October 28, 1998.

Understanding the root cause and the dangers of this shift requires exposing the most fundamental and most common misconception concerning the underlying purpose of the monopoly granted by our copyright law. The primary purpose of copyright is not, as many people believe, to protect authors against those who would steal the fruits of their labor. However, this misconception, repeated so often that it has become accepted among the public as true, poses serious dangers to the core purpose that copyright law is designed to serve.

From there, the article digs deep into the history of copyright, from well before The Statute of Anne, back to a time when copyright was a private agreement among publishers, designed to retain monopolies, act as censors and generally control the publishing market. It certainly wasn’t about protecting creators, who had nothing to do with it. From the beginning it was about middlemen and monopolies. What’s unfortunate is that our founding fathers, who were so well versed in the problems of monopolies and the harm they cause, still seemed to believe that a limited version of such monopolies might encourage greater learning and education in the field of science. In fact, they specifically added the clause “to promote the progress,” to make it clear to Congress that these monopolies were only to be used if they met that goal:

The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. They therefore expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.

While the courts and Congress initially took safeguarding that point of copyright law seriously, it eventually changed. Early on, however, Congress and the courts actually did focus on whether or not the overall public benefited or was harmed by aspects of copyright law. However, before too long, the whole concept of copyright law was bastardized into having nothing to do with the public benefiting, and only being about copyright holders (once again, often the middlemen) benefiting at the expense of the greater public. In other words, it’s come full circle back to what it once was: a tool for middlemen to limit and censor expression.

Modern-day copyright harbors a dark side. The misunderstanding held by many who believe that the primary purpose of copyright law is to protect authors against those who would pilfer the author’s work threatens to upset the delicate equilibrium in copyright law. This misunderstanding obviously works to the benefit of the content owning industries, such as the publishing industry, the music and motion picture industries, and the computer software industry. This fundamental misunderstanding is perpetuated by the stern FBI warnings at the beginning of video tapes, by overly broad assertions of the rights in the copyright notices, and by the general lack of public discourse about the balance required in copyright law if copyright is to fulfill its constitutionally mandated goal of promoting knowledge and learning.

This dark side, this pervasive misconception, is turning copyright into what our founding fathers tried to guard against – a tool for censorship and monopolistic oppression. This may sound extreme to some, but consider the beginnings of copyright in this country. The first Copyright Act in the United States granted only the exclusive right only to print, publish, and vend a copyrighted work, and it lasted for only fourteen years, with the possibility of a second fourteen-year term. No exclusive rights to perform the work or to create an adaptation of the work were granted, only the right to print, publish, and vend for, at most, twenty-eight years.

Under current copyright law, not only do copyright owners have the right to publish and distribute the work, but copyright owners also have the right to control the public performance of a work, to control the making of adaptations of the work, and to control the reproduction of the work independent of what is done with that new copy. And, as a result of the Copyright Term Extension Act passed in October, 1998, now the basic term of copyright lasts for the life of the author plus seventy years. This new term is a far cry from the original maximum term of twenty-eight years, and results in a much larger monopoly and a much longer time that the public must wait for any given work to enter the public domain.

These are only a few small snippets, but it’s an excellent read. Many of you may already be up on these points, but whether you’ve read similar things before or not, I highly recommend this article.

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