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?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.?
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U.S. CONSTITUTION
Article
1, Section 8 |
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BECAUSE SO MANY recent cases involve digital technology, we might assume
that these are new issues, that copyright in an analog world was relatively
stable and non-controversial. But in fact, copyright was not only one of
the most lively subjects of debate among our Founding Fathers. The values
that copyright reflects echo with the very principles of the American Revolution
and Constitutional Convention.
At its birth in England, copyright was an instrument of censorship. In
1557, the Catholic Queen Mary Tudor capped off a 120-year monarchal struggle
to censor printing presses in England by issuing a charter to the Stationers'
Company, a guild of printers. Only members of the company could legally
produce books. The only books they would print were approved by the Crown.
COPYRIGHTS AND THE
CONSTITUTION |
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In contrast, the American copyright system since 1791 has reflected American
republican values. While it granted a limited, temporary monopoly to a
specific publisher, American copyright grew to embody four democratic safeguards:
A guarantee that all works would enter the public domain once the copyright
term expired.
A collection of purposes that consumers could consider "fair use," such
as limited copying for education or research.
The principle that after the "first sale" of a copyrighted item, the buyer
could do whatever he or she wants with the item, save distribute unauthorized
copies for profit.
The concept that copyright protects specific expression of ideas, but not
the ideas themselves.
OUT OF BALANCE
Copyright, when well balanced, encourages the production and distribution
of the raw material of democracy. But after more than 200 years of legal
evolution and technological revolution, American copyright no longer offers
strong democratic safeguards. It is out of balance. And our founders -
especially Thomas Jefferson - would not be pleased.
Copyright was created as a policy that balanced the interests of authors,
publishers, and readers. It was not intended to be a restrictive property
right. But it has evolved over recent decades into one part of a matrix
of commercial legal protections now unfortunately called "intellectual
property."
GOOD DEAL FOR DEMOCRACY
Copyright is a "deal" that the American people made with the writers and
publishers of books. Authors and publishers get a limited monopoly for
a short period of time, and the public gets access to those protected works
and free use of the facts, data, and ideas within them.
Without a legal guarantee that they would profit from their labors and
creations, the framers feared too few would embark on creative endeavors.
If there were no copyright laws, unscrupulous publishers would simply copy
popular works and sell them at a low price, paying no royalties to the
author. |
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FAR
FROM IDEAL
George Washington
believed copyright would enrich political culture by encouraging creativity
and promoting enlightened public discourse. But recent changes to copyright
law have debased his idealistic vision. |
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But just as importantly, the framers and later jurists concluded that creativity
depends on the use, criticism, supplementation, and consideration of previous
works. Therefore, they argued, authors should enjoy this monopoly just
long enough to provide an incentive to create more, but the work should
live afterward in the "public domain," as common property of the reading
public.
AN INCENTIVE TO
CREATE
This principle of copyright as an incentive to create has been challenged
in recent decades by the idea of copyright as a "property right." Therefore,
many recent statutes, treaties, and copyright cases have seemed to favor
the interests of established authors and producers over those of readers,
researchers, and future creators. These trends run counter to the original
purpose of American copyright.
James Madison, who introduced the copyright and patent clause to the Constitution,
argued in The Federalist papers that copyright was one of those few acts
of government in which the "public good fully coincides with the claims
of individuals." Madison did not engage in "property talk" about copyright.
Instead, Madison argued for copyright in terms of "progress," "learning"
and other such classic republican virtues as literacy and an informed citizenry. |
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NOT
PROPERTY
James Madison
introduced the copyright and patent clause to the Constitution. He didn't
view copyright as a property issue, but as a way to ensure an informed
citizenry. |
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Copyright fulfilled its role for Madison because it looked forward as an
encouragement, not backward as a reward. This fit with the overall Madisonian
project for the Constitution. If the federal government were to operate
as the nexus of competing interests, each interest would need to approach
the public sphere with reliable information. Copyright would be an engine
for democratic culture.
When President George Washington declared his support for the Copyright
Act of 1790, he proclaimed that copyright would enrich political culture
by "convincing those who are entrusted with public administration that
every valuable end of government is best answered by the enlightened confidence
of the public; and by teaching the people themselves to know and value
their own rights; to discern and provide against invasions of them; to
distinguish between oppression and the necessary exercise of lawful authority."
JEFFERSON'S DOUBTS
Thomas Jefferson - author, architect, slave owner, land owner - had no
misgivings about protecting private property. Yet he expressed some serious
doubts about the wisdom of copyright. These concerns were based on Jefferson's
suspicion of concentrations of power and artificial monopolies.
While in Paris in 1788, Jefferson wrote to Madison that he rejoiced at
the news that nine states had ratified the new Constitution. "It is a good
canvass," Jefferson wrote of Madison's work, "on which some strokes only
want retouching." Primarily, Jefferson wanted a Bill of Rights attached
to the document. But he also desired an explicit prohibition against monopolies,
including those limited and granted by the Constitution: patents and copyright.
While Jefferson acknowledged that a limited copyright could potentially
encourage creativity, it had not been demonstrated. Therefore, Jefferson
wrote, "the benefit of even limited monopolies is too doubtful, to be opposed
to that of their general suppression." |
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INFORMATION
MONOPOLY
Thomas Jefferson,
himself an author and inventor, was suspicious of the information monopolies
copyright laws could create. He feared monopolists could use their state-granted
power to strengthen their control over the flow of ideas. |
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The following summer, as Congress was debating the Bill of Rights, Jefferson
again wrote to Madison from Paris. This time Jefferson proposed specific
language for an amendment that would have allowed copyrights and patents,
despite his doubts, but forbidden any other type of commercial monopoly.
"For instance," Jefferson wrote, "the following alterations and additions
would have pleased me: Article 9. Monopolies may be allowed to persons
for their own productions in literature, and their own inventions in the
arts, for a term not exceeding _____ years, but for no longer term, and
no other purpose."
IDEAS, NOT PROPERTY |
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With
the popularity of Napster and such unregulatable networks as Gnutella,
public is once again engaged in discussions of copyright and its role in
culture and democracy. Jefferson might not have been happy with the recent
trajectory of the law. But he would have gotten a kick out of Napster.
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Significantly, the founders did not argue for copyrights or patents as
"property." Jefferson even explicitly dismissed a property model for copyright,
and maintained his skepticism about the costs and benefits of copyright
for many years.
Fearing, justifiably, that copyright might eventually expand to encompass
idea protection, not just expression protection, Jefferson wrote in 1813,
"If nature has made any one thing less susceptible than all others of exclusive
property, it is the action of the thinking power called an idea, which
an individual may exclusively possess as long as he keeps it to himself;
but the moment it is divulged, it forces itself into the possession of
everyone, and the receiver cannot dispose himself of it."
Jefferson then declared the flaw in the notion of copyright as property.
Unlike tangible property, ideas and expressions are not susceptible to
natural scarcity. As Jefferson wrote of copyright, "Its peculiar character,
too, is that no one possesses the less, because every other possesses the
whole of it. 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."
Therefore, Jefferson feared, the monopolists could use their state-granted
power to strengthen their control over the flow of ideas and the use of
expressions.
Monopolies have the power to enrich themselves by evading the limitations
of the competitive marketplace. Prices need not fall when demand slackens,
and demand need not slacken if the monopoly makes itself essential to the
economy (like electrical power or computer operating systems).
To accomplish the task of bolstering the value of these monopolies, those
who control copyrights would have to create artificial scarcity by limiting
access, fixing prices, restricting licensing, litigating, and intimidating
potential competitors, misrepresenting the principles of the law and claiming
a measure of authenticity or romantic originality. But when Jefferson warned
of these potential abuses, they were more than a century away. Even in
the early 20th century, jurists considered Jefferson's warnings, and skepticism
about idea protection kept monopolists at bay.
As Justice Louis Brandeis wrote in a dissenting opinion in 1918, "The general
rule of law is, that noblest of human productions-knowledge, truths ascertained,
conceptions and ideas - become, after voluntary communication to others,
free as the air to common use." Both Jefferson and Brandeis dissented from
the conventional wisdom of their times, but nevertheless influenced the
philosophy of copyright. So in the early republic and the first century
of American legal history, copyright was a Madisonian compromise, a necessary
evil, a limited, artificial monopoly, not to be granted or expanded lightly.
DIGITAL DAMAGE
In the 1990s the Clinton administration championed efforts to undermine
the democratic safeguards that used to be built into the copyright system.
In addition to signing a 20-year term extension and pushing for sui
generis database protection law, the administration and Congress acted
on behalf of global media companies by enacting the most egregious example
of recent copyright recklessness: the Digital Millennium Copyright Act
of 1998. |
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A
PRINCIPLE DEBASED
The 1998
Digital Millennium Copyright Act, signed into law by President Clinton
upends more than 200 years of democratic copyright law. By forbidding the
"cracking" of electronic gates that protect works, it puts the power to
regulate copying in the hands of engineers and the companies that employ
them. |
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This law has one major provision that upends more than 200 years of democratic
copyright law. It forbids the "cracking" of electronic gates that protect
works - even those portions of works that might be in the public domain
or subject to fair use. It puts the power to regulate copying in the hands
of engineers and the companies that employ them.
Because the DMCA allows content providers to regulate access and use they
can set all the terms of use. And much like the database protection proposal,
the de facto duration of protection under the DMCA is potentially
infinite. While copyright law in 2001 protects any work created today for
life of the author plus 70 years or 95 years in the case of corporate "works
for hire," electronic gates do not expire. This allows producers to "recapture"
works already or about to fall in the public domain. This also violates
the Constitutional mandate that Congress copyright laws that protect "for
limited times." The DMCA works over and above copyright law.
DANGEROUS FOR DEMOCRACY
Most dangerously, producers could exercise editorial control over the uses
of their materials. They could extract contractual promises that the use
would not parody or criticize the work in exchange for access. Many web
sites already do this. Just as dangerously, the DMCA allows producers to
contractually bind users from reusing facts or ideas contained in the work.
For most of American history, copyright has not only reflected democratic
principles. It fueled the engines of democracy by rewarding the efforts
of both producers and consumers of information and cultural products.
Now, as we prepare to celebrate American independence for the 215th time,
copyright is tilted to favor the powerful at the expense of the people.
But with the popularity of Napster and such unregulatable networks as Gnutella,
public is once again engaged in discussions of copyright and its role in
culture and democracy. Jefferson might not have been happy with the recent
trajectory of the law. But he would have gotten a kick out of Napster.
Siva Vaidhyanathan,
a cultural historian and media scholar, is the author of Copyrights and
Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity
(New York: New York University Press, 2001). He teaches information studies
at the University of Wisconsin at Madison.
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