Brain Candy #46 - The Long, Strange Trip Ahead

Events at the intersection of cyberspace and copyright law are moving rapidly. I wanted to listen to a radio station on the web the other day - a little FM radio station I knew about in Arkansas. I found that I could not. You can view the explanation for why I couldn't listen at http://content.clearchannel.com/streamingstatus/ . In brief, it says that issues with the Recording Industry Association of America (RIAA) involving demands for additional fees have forced them to suspend Internet broadcasting. How timely, just as I started to write this article.

In my opinion, the current copyright laws are greatly imbalanced: they ignore the needs of the general public in favor of special interests and they are therefore being ignored by many of the general public. They may also be unconstitutional. Article 1, Section 8 of the U.S. Constitution states: "The Congress shall have 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;". Please note that this gives Congress no direct powers to protect the rights of middlemen, that the Article specifies "limited Times" for any protection which might be extended, and that the purpose of all of this is to "promote the Progress of Science and useful Arts". I believe that current copyright law is not congruent with the limitations set forth in Article 1, Section 8.

I can see how indirect protection might be extended to middlemen who are copyright holders: when the original author can't profit anymore, they have to create more to make money, although the current law seems to be a rather roundabout and inefficient way of promoting Progress. That the concept of "limited Times" has been extended to as long as the lifetime of the author plus 95 years, however, seems ridiculously excessive. To a finite-lived person like you and me, that isn't very limited. We are unlikely to see any works created in our lifetime go into the public domain. The original purpose of copyright law in the U.S., prescribed by the Constitution, is to promote productivity by assuring that creative people can fairly benefit from their works and then be motivated to move on to create more. Give them a profit stream for long enough that they will be motivated to create - and no longer. The way to do this is to terminate protection, fairly early, compared to the extremely generous standards currently enacted into law.

For some history, one place you can go for copyright law information is the Association of Research Libraries' "History of Copyright in the U.S." at http://arl.cni.org/info/frn/copy/timeline.html. Sadly, this is a few years out of date - years when some major changes have occurred in copyright law. I've been able to piece some of these changes together from other sources.

The first copyright law was the Statute of Anne, enacted in 1710 in Great Britain. Its primary purpose was to prevent monopolies by booksellers, intending to provide legal protection to consumers by creating the concept of "public domain" and strictly limiting the rights of the copyright holder once a consumer had bought a copyrighted work. Authors were very weakly protected, since they had to assign rights for a work to a bookseller or publisher. This last provision, the creation of a middleman, is one of the major stumbling points in our current conception of copyright law. The term of protection was 14 years with an extension of 14 years allowed if the original author was alive.

The first U.S. Copyright Act allowed the same terms as the Statute of Anne. In 1831, the initial protection period was extended to 28 years, allowing a 14 year extension period. In 1909, the extension period was also increased to 28 years. In 1976, to conform to international models, copyright was extended to life plus 50 years and has recently been extended to life plus 75 years, with life plus 95 years allowed for work for hire. These effectively eternal terms of copyright are recent, and are due to the effect of outside, international entities. Were they ever questioned in light of the Constitutional requirements of U.S. copyright laws?

Another site I would encourage you to visit if you are interested in this subject is "Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work", which you can find at http://www.law.indiana.edu/ilj/v71/no4/masson.html . This is the 1996 J.D. candidate defense of Douglas J. Masson at Indiana University. There is a large amount of really good information present here, including many quotes and references which highlight the nature of modern copyright law problems. One of the first statements in his defense is that a failure to get things right in the beginning of the digital age will have profound effects on its future. Current laws will prevent the creation of digital libraries, for instance.

Many other issues are also explored in Masson's defense. He points out that the concept of theft as it relates to digital works is a legal choice, and not a moral absolute, since nothing is truly taken. One side of the issue has unilaterally implied a moral dimension to what was actually a legislative decision made several decades ago: What is the proper balance between the author's right to profit from his creativity and the eventual expiration of that right to encourage him to be productive and to benefit the public? He also makes a recommendation for an appropriate term for copyright of "approximately five years". This is more extreme than I might have expected or would support, but it does indicate that at least some in the law profession recognize that drastic change is needed in the term of copyright protection.

One final quote from Masson's web page: "...if the demand for publishers drastically declines, it is not the law's job to provide for their future...".

I want to comment on the future. We can't really see clearly what it might be yet. Most of the public will not have the high-speed Internet access required to supplant other methods of distribution for a while, but that time will arrive relatively soon.

Much of the public would be happy with Napster as it is, but it really doesn't protect the rights of artists who do deserve some protection. A "Napster for fee" solution might be agreeable, assuming we can decide on the fees, how they will be dispersed, and who will provide the service. The music industry seems to be leaning toward monthly subscription services. This might work, again if the rates were low enough, but the public has been hit with a huge number of "$9.95 per month" services in the last few years and the five major music companies will probably each want $9.95 per month (or more) to allow you access to their catalogues, since they don't play well with each other. Most consumers will not want to pay even $9.95 per month for all of them combined.

As a catalyst for change, Napster has served an extremely useful purpose. Some recent legal writers have implied that members of Congress are now reviewing the copyright issue and are coming to understand the flaws present in the current law. Perhaps we will see a change for the better soon.