British Think-tank Calls for IP Laws to be Re-evaluated

The Institute for Public Policy Research is calling for the British government to seriously reevaluate the current copyright regime in England. Calling into mind, specifically, the proposed 50 year extension of copyright protection for sound recordings, the think-tank argues that a law must engender public respect (which copyright obviously doesn't if 50% of British citizens have illegally made copies of music). Currently, it is illegal for the British to copy CDs to MP3 players.

The digitization of copyright enforcement has led to an imbalance: "The once symbiotic relationship between IPRs and public domain has become increasingly oppositional as a result of these technological changes," says the IPPR. The report also attacks digital rights management (DRM) for its inability to understand exceptions to copyright. See the BBC Article for more information.

Copyright Act Revision of 1976

In 1976, Congress finished a major revision of the Copyright Act for the first time since 1976. This law, now 30 years old, has served as the basis for much legal wrangling in the digital age.

The Act was updated due to technological developments since the last major revision in 1909. Among these technological advances were television, films, audio recordings and radio. These new forms of media would mature with the copyright law and come to embrace its protective features.

The law allowed any "work of authorship" to be copyrighted. This included the following:

1. Literary works
2. Motion pictures
3. Songs (music and lyrics)
4. Graphic or sculptural works
5. Theater presentations

In addition to the right to produce a copy of the work, the legislation also granted the following rights:

1. Create derivative works
2. Sell copies
3. Perform and/or display the work

This is an important point because it shows that copyright has expanded past its name. As Gordon Quinn, the founder of Kartemquin Films explained, even were a theater troupe to purchase copies for all members, they could not perform a copyrighted play without licensing it.

The expanded scope of copyright was matched by a lengthened duration. The previous maximum length of monopoly was 56 years (28 + 28 renewal). In an enormously dramatic extension, the copyright would now last the life of the author plus 50 years.

Finally, the 1976 act also codified the idea of fair use. Fair use is so important it will require its own post and that's next!

History, (C)opyrighted II

Even a cursory understanding of intellectual property rights will show that the law put forth some 216 years ago has drastically changed. The first major revision came in 1831. To match the level of protection in Europe, Congress extended the initial copyright protection to 28 years. This extension would become a theme: in 1976, the Copyright Act was again revised to protect creative works for the life of the author plus 50 years. The previous maximum term of 56 years suddenly seemed paltry.

Tomorrow, we will examine the 1976 legislation and its varied results.

The Founders, the Constitution and Copyright

Of the many issues discussed at the Constitutional Convention, few were debated as vociferously as intellectual property. A glimpse into the disagreements over copyright can be found in the letters Thomas Jefferson sent James Madison. In the correspondences, Jefferson warns that “the benefit of even limited monopolies is too doubtful."

Jefferson recognized, as many modern day economists and legal scholars do, that ideas and expression were non-rivalrous resources. Jefferson once mused,

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me."

That is, unlike a bicycle or chair, whose use precludes use by others, expression is not harmed by varied application. In fact, certain forms of resources, such as a language, become more valuable with every person's use.

Madison disagreed with the possible dangerous posed by intellectual property rights. In Federalist Paper #43, Madison stated that "the public good fully coincides" with copyright. In the end, his position was eternalized in the Constitution of the United States.

Article One, Section Eight, Clause Eight gives Congress the duty 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..."

This was codified in the Copyright Act of 1790 which gave authors and certain other creators the right to be the exclusive provider of their works for 14 years (renewable for another 14 if they so desired).

Copyright in Uniform

The Boy Scouts of Los Angelos recently announced a new merit patch. No, our youngsters won't be learning life skills in order to "be prepared," but, instead, will learn all about copyright [read: propaganda]. The new badge sponsored by the Motion Picture Association of America will provide, according to its director Dan Glickman, "a real opportunity to educate a new generation about how movies are made, why they are valuable and hopefully change attitudes about intellectual property theft."

Doesn't sound like a "Respect Copyrights" award. Perhaps "Respect-the-MPAA-or-You'll-Be-Sued" award. I wonder if they will be teaching the Scouts about Hollywood's origins (as a haven for pirate producers) or about fair use (that wonderful principle allowing use of copyrighted works without permission) or the public domain (the wealth of information outside the bounds of the encircled C). Doubt it.

See Boing Boing for more.

Statute of Anne Backlash

The new legislation passed by the British Parliament meant radical changes for the book publishing business. The monopoly held by the Stationers' Co. was no longer; as Prof. Geller says, "the marketplace opened up: new publishing houses and projects began to proliferate..." One of the main sources of new businesses were the Scots who seized upon public domain material and proceeded to undercut the established media companies by 30-50%.

In a case brought against a Scottish publisher by the Stationers', the idea of limited terms for copyright was disputed. Legal precedent, established since the Licensing Act, supported perpetual rights. They argued that the new law was, to Americanize it, "unconstitutional."

The House of Lords, however, disagreed. The highest legal body in England supported the "pirate publishers" and reaffirmed limited protection.

For more information, see Lessig's book, Free Culture.

History, (C)opyrighted - The Statute of Anne

The first major technological breakthrough in publishing, since the advent of written language, was the Gutenberg printing press which made it simple to create written works in an unprecedented scale.

Often, technological change begets legislative change. Such was the case in 1600s England when the Parliament passed a measure to control the spread of written works. The Licensing Act of 1662 gave exclusive rights to publish to a conglomerate of London "Stationers." These businessmen were given licensing to produce books and pamphlets with the understanding that political criticism would be crushed.

Under this system, the status quo was maintained; entrepreneurs could not compete with the publishing guild due to legal restrictions. However, in the early 17th Century, the 1662 Act expired as was not renewed.

Instead, the Statute of Anne became law in 1710. The act was to be

“An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies”.

The Statute of Anne introduced the idea of protection for a limited time. Copyright was to last for 14 years, renewable for another seven years. Instead of vesting protection in the publishers as had been the case under the Licensing Act, the legislation clearly gave power to the “Authors”. Indirectly, the Statute of Anne also created and codified the “public domain,” or the collection of works not protected by copyright. As Supreme Court Justice Brandeis would later say, material unfettered by legal restrictions is as “free as the air to common use”. This important precedent affirms the rights of all creators to draw from the past to create the future.

What was the reaction to this groundbreaking legislation? Coming next...

Then, Now

When the “star-crossed” lovers of Shakespeare’s Romeo and Juliet first took the stage in 1594, the tale of tragic love undoubtedly moved the audience as much as it does today. His seminal work of forbidden desire remains one of the most important literary works ever published, yet the mysterious William Shakespeare does not deserve full credit. As early as 1303, a story of unhappy lovers from Verona was written. In 1562, more than 30 years prior to the penning of Shakespeare’s now famous prose, Arthur Brooke wrote the minor poem The Tragical Historye of Romeus and Juliet.

The titles’ similarities are no mere coincidence; Shakespeare’s grandiose work drew directly from the literary tradition of both Brooke and classical authors. In today’s world, such derivative works would be subject to legal scrutiny, but such was not always the case. Since the beginning of oral culture, societies have built upon the past in fields as varied as science and poetry. Arguably, had Shakespeare not been allowed to draw from the past, the poetic flair and grace of Shakespeare’s adaptations would be nothing more than an unpublished thought.

Shakespeare wrote in a time very different from today; the idea of rights bestowed upon a creator was as radical as it was uncommon. To many modern authors and lawyers, the legal void would seem to lead to rampant ‘piracy’ and, therefore, a limited marketability of creative works.

The concept of “intellectual property” has developed through centuries of legal debate. At one point, expression was not considered property in the same sense as land or physical goods. Yet, today, creative works are owned in much the same manner as an automobile or house. The maturation of copyright has been paralleled by two changes: both the scope and duration of protection have expanded. As technology makes creation and reproduction easier, the tenets of intellectual property law have risen to paramount importance.

In the coming days, I will chronicle the history of copyright: from Shakespeare's literary evolution to college students being sued for downloading music.

Copyrightings

Welcome to Copyrightings: Copyright News, Musings and Opinion. In the coming weeks, I plan to provide a history of copyright (and occasionally, other intellectual property (IP) schemes). Copyrightings will also cover new developments in the evolving field of IP law including its relation to the internet and digital life. Stay tuned!