Brain Candy #100 - The Copyright Fiasco

The last time I said much about copyright was in Brain Candy #46 (June 2001). If you're interested, you can find it at home.neo.rr.com/catbar/brain_candy/brncdy46.htm. I'll review a bit of it here.

Copyright laws are intended to protect the creators of intellectual property by granting them exclusive rights to their creations for a period of time. Copyright really became important for two reasons. Copying of the written word, one of the first classes of intellectual property, became much easier with the development of movable type and the printing press. Before this, copying such materials was just too labor-intensive for it to be profitable. At about the same time, the audience for such materials became much broader, as more affluent societies generated significant numbers of educated people wishing to access such works. In other words, when copying became cheap and an audience came into existence, the need for some protection of author rights arose.

US copyright law is governed by Article 1, Section 8, Clause 8 of the US Constitution, which grants to Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first law exercising these powers was passed in 1790 and was derived from the 1710 British Statute of Anne, with the same terms as the British statute: 14 years, allowing for one 14 year extension.

The current US law grants a "creator" copyright for the creators' lifetime plus seventy years (or ninety-five years if the work is created for hire.) Odd since we're all aware that creators can't take it with them and odd too that the original audience for a work will almost certainly be long dead by the time that such a copyright expires. This is a very loose interpretation of "limited times," I think, but the Supreme Court has given Congress the nod to implement such odd notions. Indeed, one effect of the massive expansion of copyright terms in the last several decades is that in the last eighty years, only one year's worth of works, 1923, has fallen into the public domain. Add to this the fact that absolutely nothing will lapse into the public domain until 2019. One more thing - there is nothing to stop further extensions of these grants as 2019 approaches. Indeed, these extensions are becoming routine.

Not that we're likely to have a receptive audience to copyright reform soon, but what might we do to fix these ridiculously generous copyright grants? Most will accept that we need some sort of copyright law. Copyrights of commercially important material are extremely valuable, while those of unimportant material are basically worthless. Perhaps the free market might offer a solution. Creativity deserves some reward - a period of free protection, say twenty-eight years, could be followed by the ability to purchase further extensions. A fairly low fee might be required, if we wanted avoid burdening copyright holders. This would shake out noncommercial materials that might have great public domain value. If more revenue extraction was desired, perhaps a percentage of the profits earned by extension of the grant could be levied. Here's an even more freewheeling free market approach - after an initial period of protection, auction off the copyright extension to the highest bidder. There would be a minimum bid to shake out non-commercial materials. It might be a bit tricky in some cases to decide exactly what to license and the mechanics might be a bit involved, although computer technology should be quite helpful in managing this latter issue. The main thing is that if a work is worth long-term copyright extensions, then like almost everything else in our society, it should be paid for.

One other thing I would like to see: companies that act to deny consumers their fair use rights under the copyright law should lose copyright. Fair use has been under steady attack in recent years, with no solid protection being provided by the courts. Actually, the bogus threat of legal action against those exercising fair use rights has greatly inhibited those rights. We need to have negative consequences occur when a copyright holder behaves like a jerk.

Which brings us back to Sony - the rootkit that comes on these Sony CDs seems to be tailor-made for hacking by criminals. A creep who might not be clever enough to whip up a rootkit of his own can buy one for the price of a Sony CD. A bit of tweaking, and he can unleash this monster to do his bidding. How nice for him. Thank you, Sony. Thank you so very much.