IS COPYRIGHT DEAD?
There are many people today who
predict the death of copyright in the electronic world. Some of the individuals making this
prediction simply wish that all copyrighted works were available free, while some
copyright owners appear to want to restrict access and use of their works much
more severely than current copyright law permits.
For
over 200 years copyright has played a significant role in promoting
learning. It does this by granting
authors the exclusive rights to their “writings” which enables them to exploit
their works commercially. The term
“writings” has been broadly interpreted to include not only traditional works
such as books and plays but also musical compositions, maps, motion pictures,
sound recordings and architectural works.
As new forms of expression developed, they too have been awarded
copyright protection. For example,
audiovisual works were added to the statute in 1976 and computer programs were
assigned to the literary works category that same year.
Videogames,
multimedia works and webpages are all protected today. Copyright has proven to be remarkably
elastic to embrace new technologies while still guaranteeing to the developers
of these works (called “authors” for constitutional purposes) the rights to
their works, but only for limited times.
Over the years, those limited times have expanded from the original 14
years to life of the author plus 70 years today. This remarkable expansion of the term of copyright demonstrates
that Congress recognizes the value copyright holders contribute to society by
making their works available to the public.
Since 1790 this statutory scheme has
worked well. Copyright proprietors have
earned large sums of money from the exploitation of their works, and this has
contributed significantly to the U.S. economy.
In fact, both the United States and Canada are known around the world
for their copyrighted works – movies, software, books, etc. Not only has the law provided economic
reward for copyright holders, at the same time it has insured that copyrighted
works are available to the public, not necessarily available free but often
freely available through public libraries.
Individual citizens also purchased copies of copyrighted works such as literary
works, sheetmusic, maps, etc. As
technology developed, the format in which copyrighted works were embodied often
changed. It is far more common today for individuals to own a copy of a sound
recording of a musical composition on CD than to own the sheetmusic. Copies of motion pictures were seldom owned
by individuals in the past, but now ownership of copies on videotapes and DVD
are commonplace.
With this rich history that provided
both copyright holders and the users of copyrighted works what they needed and
wanted, why are both users of the Internet and copyright holders proclaiming
the death of copyright?
For users of copyrighted works this
may be traced first to increasingly common and easy reproduction
technology. From the invention of the
photocopier forward it has become extremely easy to reproduce entire
copyrighted works, and unfortunately, too often users of these works paid
little heed to the rights of the copyright holder. Certainly, much of the reproduction has been statutorily exempted
fair use, but not all of it. Further,
reproduction technologies such as scanners and VCR’s permit copying of entire
works rapidly and with little effort on the part of the user. Copyright proprietors have felt threatened
by this and often rightly so.
The Internet has made reproduction
of digital works even easier. With a
computer mouse, “cut and paste” is easier then ever before. Some early Internet proponents even coined
the phrase “Information wants to be free,” but this did not recognize that often
information is contained in copyrighted works.
At the same time, librarians and individuals began to clamor for more
works to be made available in digital format.
To copyright owners, it seemed that the desire for digital works was
directly tied to the idea that users sought access to these works in order to
reproduce them without compensation to legitimate copyright holders. One might question whether owners will
continue to produce copyrighted works and make them available to the public
without some form of legal protection that ensures compensation.
Concomitantly, copyright proprietors
began to explore new models for exploiting their works. The first of these was licensing as opposed
to sales. Licensing worked well for electronic
databases and for some computer software products. It permitted the owner to maintain ownership and control while
providing access to the contents to users in exchange for the license fee. Licensing did not work so successfully for
traditional printed works although some publishers attempted to license
them. As the number and variety of
electronic works increased, licensing became the norm for many works acquired
by libraries such as both databases and other titles on CD-ROM. As electronic journals and electronic copies
of printed journals became available, they also were acquired via license
arrangements.
A license agreement may either
expand or contract a user’s right under the copyright law. Section 108(f)(4) says that nothing shall
affect contractual obligations entered into when a library obtained a copy of a
work in its collection. Thus, libraries
are bound by the license agreements they sign.
Both librarians and the publisher and producer communities have adjusted
to licensing and to the negotiation of terms.[1]
Recently publishers have begun to
seek additional ways to protect their digital works through passwords,
encryption, digital watermarking and the like.
If these methods are adopted along with licensing, one might question
the continued viability of copyright.
There are, however, multiple aspects to the use of a copyrighted work such as access, reproduction and then actual use. Licensing and technological controls both govern access outside of copyright law. Licensing may also dictate terms about reproduction through downloading, etc., but agreements are often silent about downloading and other reproduction. Technological controls can very definitely restrict or even prohibit reproduction. Both licensing alone and technological controls when coupled with licensing may dictate terms of use, such as a restriction in the license that the work may be used only for nonprofit purposes. But within that broader restriction that is based on the amount of the license fee (since commercial use licenses are often much costlier) one clearly may make a fair use of the contents of the digital work. Thus, for the user, it is important that copyright continue to exist along with the limitations on the rights of the copyright holder such as fair use and the first sale doctrine.
It is also important to copyright
proprietors that copyright continues to exist.
The 1976 Copyright Act protects works form the time they are fixed in
tangible medium of expression, long before works are ready to be marketed. This is especially important for individual
authors whose works are protected from the time they are created in early
manuscript form. The author enjoys
protection, then, as she seeks a publisher for her article or as he records the
song and attempts to interest a record company in producing the work. So, the continued existence of copyright
should be important to copyright proprietors also.
Neither users of copyrighted works
nor copyright holders would benefit from the death of copyright. Let’s put a stop to calls for eliminating
this tried and true form of legal protection for both creative and
informational works.
[1] The Uniform Computer Information
Transaction Act (UCITA) may threaten the ability of libraries to negotiate
contracts. See this column in Information Outlook, Sept. 1999 and June
2000.