The United States Constitution states, “The Congress shall have 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” (Article I, Section 8). This is known as the Copyright Clause, which serves as justification for US copyright and patent laws. There are two main ideas that need to be understood before discussing copyright law any further. The first point is that the Framers of the US Constitution did not see copyright as an inherent right to the author, but rather an artificial concession made to them to promote science and art. This interpretation of the Copyright Clause, that copyright is not a natural right, has been upheld by the US Supreme Court on numerous occasions, such as Wheaton v. Peters in 1834, and then again in 1932 when the court states, “the Congress did not sanction an existing right, but created a new one…the sole interest of the United States and the primary object in conferring the copyright monopoly lie in the general benefits derived by the public from the labors of authors” (Fox Film Corp. v. Doyal, 1932, Para. 3). Thus, we must understand that “copyright’s justification relies entirely on whether it provides a necessary and proper means of promoting the general welfare” (Bell, 2009, p. 6). To put it simply, copyright is a public policy tool, not a natural right. The second point is that copyright law is a deal between the US government and the public. Essentially, “the government spends the public’s natural rights, on the public’s behalf, as part of a deal to bring the public more published works” (Stallman, 2004, p. 79). This concept is known as the copyright bargain.
It is also beneficial to be aware of the dynamic tension that exists between strong legal rights giving incentives to create more new works, and strong legal restrictions (against the public/individual user) interfering with the dissemination of those works for the public good (Garlick, 2008, p. 428). This dynamic tension relates directly to a debate that has been going since the notion of copyright first entered the European vocabulary (Hesse, 2002).
When the Statute of Queen Anne passed in 1710 in Great Britain, the English government had made its first step towards protecting creative works by granting legal limited monopolies to authors (Timmers, 2005). This was necessary due to the invention of the printing press, followed by the industrial revolution, a rise in literacy among middle class Europe, and increasing competition among printers and publishers (Hesse, 2002). Ironically enough, in these days the term “pirate” was used by authors to describe publishers who would publish unauthorized works. Thus began a long debate that still carries on today on the notion of authorship and how it should relate to copyright law.
Eleven years before the US Constitution was adopted, in 1776 in France, a philosopher and mathematician known as Condorcet was a leading thinker behind the “utilitarian” view on intellectual property. He claimed that the property of literary ideas “is not a property derived from the natural order and defended by social force; it is a property founded in society itself. It is not a true right; it is a privilege” (as cited by Hesse, 2002, p. 35). Those who followed Condorcet’s view of copyright believed that there was “no natural property in ideas,” and that the only justification for these laws would be that they are the best possible way to encourage new works to be created, strictly to benefit the public good. This utilitarian concept of encouraging new works to be created for the public benefit would be the premise of the Copyright Clause included within the US Constitution a decade later. On the other side of the debate were thinkers like Diderot and Fichte, who argued that ideas were subjective, and therefore authors had a “universal natural right” to “perpetual property in ideas” (Hesse, 2002, p. 36). Diderot claimed, “literary creation is the substance of the soul and mind, making it the most valuable and genuine type of possession” (Guindon, 2006, p. 156–157). This natural rights view can still be seen clearly today by the RIAA and figures in other media industries, like Jack Valenti of the MPAA who says that “copyright should last forever less one day” (Pollock, 2007).
So we can see that before copyright law had even made its way to the United States, there was already an intense debate between the notion of copyright as an individual right to the author, and the notion of copyright as a privilege to the author which has a specific purpose of promoting the public good. “The utilitarian position thus understood the public interest as the highest aim of the law, while natural-rights proponents argued that the sanctity of the individual creator should be the guiding principle of any legislator” (Hesse, 2002, p. 36). This conflict in viewpoints would continue throughout the history of copyright law in Europe, the Unites States, and the rest of the world.
The natural rights viewpoint becomes more and more prominent in legislation within countries that have a strong economy of ideas to export, especially Europe and later the United States (Hesse, 2002). The United States in particular moved further and further away from the utilitarian view and further towards the natural rights view “as it evolved from being a net importer of intellectual property to a net exporter” (Hesse, 2002, p. 40). Has the adoption of this notion of copyright, as a universal right to the author, served in benefit to the public, or rather to the benefit of media corporations that hold the publishing rights to increasingly large numbers of exploitable copyrighted works? When answering this question it is important to consider the concept of the copyright bargain, which places the public interest first. Stallman (2004) states that “benefit for the reading public is an end in itself; benefits for publishers are just a means toward that end. The first step in misinterpreting copyright is the elevation of the publishers to the same level of importance as the readers” (p. 80). Misinterpretation of copyright law is even more common due to terms like “intellectual property” and copyright “protections,” which have altered the public perception of the true purpose of US copyright laws.
Guindon (2006) states,
Although it is now common to talk about intellectual property of a book, a movie, or a piece of music, this is not always the best way to understand the purpose of copyright. The original copyright laws…were all about making the best possible compromise between favoring creation and securing easy access to knowledge and art. (p. 160)
Copyright law in the United States was first enacted in the US with the Copyright Act of 1790, which granted rights to authors of books, maps, and charts. The copyright term was 14 years with the option of a 14-year renewal. As new technologies were introduced, copyright law was increasingly extended in both what formats it covered and its duration. The initial 14-year term was doubled in 1831, and protections were extended to include musical compositions. The 14-year extension was doubled with the Copyright Act of 1909, bringing the total possible term to 56 years (U.S. Copyright Office, 2010). As we will see when analyzing the history of recorded music, this copyright extension coincided with a huge boom in the newly developed recorded music industry of player pianos, phonographs, and gramaphones. However, “even though copyright was extended to a growing number of media formats, its protection of content still did not directly affect the public, as self-production was financially still far out of their reach” (Timmers, 2005, p. 28). This is the crucial difference between copyright law in a system of scarcity and physical distribution, and copyright law in a system of infinite space like the Internet, where distribution becomes limitless.
The copyright term was left unchanged for 67 years, until the Copyright Act of 1976 was developed and eventually passed through in 1978. Cited as a necessary fix due to new technologies like tape-based sound recording and major motion pictures, this Act extended the copyright term to either 75 years, or the life of author plus an additional 50 years, while also extending copyright law to all works, including unpublished works (U.S. Copyright Office, 2010). Also extremely important was that sound recordings were now protected under copyright, a change that was influenced by the ability of the public to make copies of vinyl records onto magnetic tape. Copyright law was now beginning to lean further away from protecting the public interest and further towards corporate interests, in the name of author’s rights (Stallman, 2004). This trend extends much further with new copyright legislation passed in the late 1990′s after the widespread adoption of the Web and digital music technologies. The major labels and the RIAA have used these new technologies to justify increasingly extended copyright terms and the criminalization of those who use the technologies to their fullest capabilities. “It is ironic to think that the call for stronger moral rights is based upon the revolutionary emergence of new digital technologies and networks” (Gunidon, 2006, p. 173). These technologies are indeed revolutionary, so much so that past technological shifts in the recorded music industry might not lend much help in predicting the future of digital music. As Chon (1996) points out, the basic principles of copyright, the work principle and the author principle, are increasingly deprecated in the digital world.
I will now trace the history of the recorded music industry and different music formats before analyzing the industry responses to the Web and digital file sharing technologies.