Copyright C.P.U. (page 5)

The Present

The French have a saying: The more things change, the more they remain the same!  In the case of copyright, this is too true.  Just like the printing press of 550 years ago, a new means of storing, displaying and distributing knowledge (or organized information) – words, images and sounds – has emerged: digitization.  Proprietors of older ‘analog’ media – broadcasting, printing, sound and video recording are threatened. The borders of Nation States are eroding before the information and e-commerce onslaught of the Internet – the primary distribution channel for this new media. Heretical works – now kiddie-porn and hate propaganda – are subject to investigation, prosecution and censorship for the sake of children and gullible victims of bigotry and racism. Charges of ‘piracy’ abound. Cybersquatting disputes are now being adjudicated by World Intellectual Property Organization arbitrators.  Privateers sail the newly discovered seas seeking new lands and riches planting ‘software patents’ (Amazon.com) and building ever swifter and better ships to capture merchant ships on the high seas of the World-Wide Web (MP3.com and soon MP4). The plight of Creators (Metallica) is hoisted up the flagpole by Proprietors (the Recording Industry Association of America) in a new ‘Battle of the Booksellers’ with its call to stamp out pirate havens on the Internet (Napster). New Stationers’ Companies arise (AOL/Time-Warner, Microsoft, News Corp., Disney, et al) fighting for ‘perpetual copyright’ for ‘their’ works through a Digital Millennium Copyright Act that may, or may not, prove as short-lived as Millar vs. Taylor before another Donaldson vs. Beckett lets Mickey Mouse play free in the public domain.  Extension of copyright protection to computer programs and software has led to widespread ‘hacking’ over the World Wide Web that constitutes copyright infringement in the form of accessing and copying protected works and damaging such works.  Copyright has also been used as the principal argument of Microsoft in its defense against the U.S. Department of Justice anti-trust case to break its near-monopoly of personal computer operating systems software.  And wave after wave of new law is being introduced and adopted striving to put the new wine of digital technology back into the old bottle of printer’s copyright (Table 1).

Table 1

Bills Introduced and Public Laws Passed by Congress

(a) 106^th Congress
(17 bills introduced/ 3 Public Laws passed)

Source: US Copyright Office

Why is this happening and where is the public interest in this tidal wave of legislation?

Our current copyright law is based on a model devised for print media, and expanded with some difficulty to embrace a world that includes live, filmed and taped performances, broadcast media, and, most recently, digital media. That much is uncontroversial. The suitability of that model for new media is much more controversial.  As one might expect, to the extent that current legal rules make some parties "haves" and others "have-nots," the haves are fans of the current model, while today's have-nots suggest that some other model might be more appropriate for the future.  Meanwhile, copyright lawyers, who, after all, make their livings interpreting and applying this long and complex body of counterintuitive, bewildering rules, insist that the current model is very close to the platonic ideal, and should under no circumstances be jettisoned in favor of some untried and untrue replacement (Litman 1996).

In the ‘digital age’ it is not just ‘corporate pirates’ against whom Proprietors raged.  It is also private citizens with access to the Internet and the ability ‘to copy’ including some 335,000 Napster users identified by the Recording Industry Association of America and since stricken from the Napster’s rolls and who remain potentially liable for copyright infringement.  New ‘digital copyright’ and other devices and techniques are being proposed by Proprietors to stop individuals infringing ‘their’ copyright.  And where is the public domain in whose interest the copyright monopoly was granted by the Constitution? 

The most compelling advantage of encouraging copyright industries to work out the details of the copyright law among themselves, before passing the finished product on to a compliant Congress for enactment, has been that it produced copyright laws that the relevant players could live with, because they wrote them.  If we intend the law to apply to individual end users’ everyday interaction with copyrighted material, however, we will need to take a different approach. Direct negotiation among industry representatives and a few hundred million end-users would be unwieldy (even by copyright legislation standards). Imposing the choices of the current stakeholders on a few hundred million individuals is unlikely to result in rules that the new majority of relevant players find workable. They will not, after all, have written them. There are, moreover, few signs that the entities proposing statutory revision have taken the public’s interests very seriously. Instead, they seem determined to see their proposals enacted before they can be the subject of serious public debate (Litman 1996).

And what of Creators?  How have they fared in the tidal wave of new copyright laws introduced since 1989 and US accession to the Berne Convention?  In order to accede to the Berne Convention, Congress had to make some token movements towards ‘moral rights’.  Thus the Visual Artists Protection Act of 1990 became Section 106A of the Copyright Act.  However, rights of paternity and integrity of one’s work is available only to artists of ‘recognized’ reputation.  Recognized by whom?  Recognized by the Courts.  Similarly, the Architectural Works Copyright Protection Act, Pub. L. 101-650 was passed in 1990. Its provisions, however, are so weak with respect to the ‘moral rights’ of architects that it has not been incorporated into the Copyright Act. 

Then there is the case of Tasini et al. v. The New York Times et al.  In the initial 1997 case, a federal district court in New York was asked to determine whether publishers were entitled to place the contents of their periodicals into electronic data bases and onto CD-ROMs without first securing the permission of freelance writers whose contributions were included in those periodicals.  A federal district court in 1997 decided in favor of the Proprietors.  The freelance writers appealed.  On September 24, 1999, a three-judge panel of the Second Circuit Court of Appeals reversed the lower court’s decision.  The Proprietors then approached the US Court of Appeals for a full trial hearing.  In April 2000, the Court refused to order a trial before the full court.

In spite of this apparent victory, freelance writers are generally subjected to a ‘blanket’ or ‘all rights’ licensing agreement with Proprietors.  This means that having made an initial and one-time payment to a Creator, all rights are assumed by the Proprietor including those for media yet to be invented. Take an extreme case. An author writes a short story that is published in a magazine or journal.  Someone in Hollywood likes the story and decides to make a movie.  The Creator, however, has no residual rights and the Proprietor makes a deal netting millions of dollars. The Creator gets not a penny.  The mistake made by the New York Times et al in Tasini was failing to get authors to surrender all rights in the initial contract.  It is unlikely that they will make the same mistake in future.

That is how the law stands today.  Almost 300 years ago the Myth of the Creator was born with a Statute intended to break the perpetual copyright monopoly of the Stationers’ Company and bring Scotland under a common law of copyright ending piracy in a new ‘Great Britain’.  The legal fiction was planted that all rights originated with the creator but that any ‘natural’ or moral rights of that Creator are extinguished on publication.  Furthermore, the economic rights of the Creator are compromised in the financial interest of Proprietors or ‘copyright owners’. Thus economic rights of the Creator can, and usually are, transferred to Proprietors in return for a one-time payout by the stroke of a pen on an ‘all rights license’. The Myth survived the American Revolution and has now led, full circle, back to a virtual perpetual copyright extending onto four generations and covering all existing and any as yet to be invented means of fixing the work of a Creator in material form.  In effect, copyright has become the legal foundation for the industrial organization of the arts/entertainment/media industry.