US Copy­right

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.

2 thoughts on “Making a Case for Sharing

  1. Pingback: Elektrische Zahnbuerste

  2. So true, the use of the Inter­net to share free and legal music is still so under­uti­lized. There are still only a hand­ful of cre­ative com­mons enabled sites. But I think that will con­tinue to grow as pub­lic aware­ness of cre­ative com­mons increases.


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