T. Matthew Howell INLS 187 Dr. Benjamin Brunk 2 December2004
Future Forecast: Copyright Issues
INTRODUCTION Each time the basis of the economy has changed society has gone through major uncertainty over how to regulate it. Often, the primary enforcers in the beginning were the most powerful private groups. Pre-1900 saw an economy based largely on land and its uses. Many times there was not strong regulation from governmental authorities and it was left mostly to the individual actors, especially in the west. During the industrial revolution the economy shifted to manufacturing. Little regulation existed and the major monopolies of the time both literally and figuratively ruled the land. Now we are in the shift to an information and intellectual property based economy. In this world copyright is a central determinant of worth and again we see the major corporations acting as the driving force. The question is whether government will act as an instrument or a balance in the end. CURRENT
COPYRIGHT Prior to recent technological advancements copyright holders received some protection by the inefficiencies of the large-scale infringement process. Today it is quite easy for large quantities of people to make and distribute hundreds and thousands of unauthorized copies of copyrighted materials. Previously there was not as much concern over stringent copyright protection and iron-fist enforcement. Now these copyright holders are much more involved as they fear the possibilities that technology now provides. Copyright laws have also changed dramatically over the past few years. Originally copyright laws were designed to protect owners for a limited amount of time (14-28 years). Since the Copyright Term Extension Act in 1998 the initial copyright term has been elongated to the life of the author plus 70 years. The original length protected the author as progress was made towards the next innovation. The new length simply protects the author so that more money can be made from the monopoly. In complete irony, the desire to aggressively combat copyright violations has begun to actually stymie the progression of science and arts which copyright was originally intended to promote. Earlier this year Senator Orrin Hatch introduced a bill known as the Induce Act. This bill makes it a crime to produce technology or information that makes it more likely for infringement to take place. If this bill had been in place for the past 20 years then such innovations as VCRs, Tivo, and the iPod most likely would not have been introduced. Currently the bill resides in the Senate Committee on the Judiciary. The aggression to enforce doesn't just limit itself to the guilty. In 2003 the Recording Industry Association of America sent a cease and desist order to Penn State University accusing them of copyright infringement. The case was a mistake triggered by a professor sharing the same last name with a recording artist and hosting some mp3 files of his research. This case was the first to show how the new powers of some legislation could be abused even if by accident. Even without new legislation, previously accepted methods of determining violations are being thrown out. A Forbes magazine article from October describes cases where the concept of "de minimis use--in essence, is this scrap too small to worry about" seemed to no longer be applied. In one case the group NWA was ruled to have violated copyright for sampling a 2 second guitar lick even though they even altered it some. FUTURE
FORECAST In Project Looking Forward, Mr. Hardy makes a point that "the Copyright Act defines 'rights' (and hence 'infringement') in ways that are far more technology and medium -dependent" than how it defines copyright (p24-25). This is one aspect of legislation that I believe should be addressed in the next 10 years. Current laws tend to be reactionary to a particular type of infringement or method of infringement. As he describes later, they tend to treat everything as something new when it is actually an old issue by a new means. New laws are written for each new means and become contradictory if close attention is not paid. As a result there is no clear understanding of the matter. I believe that what we need a simplification of copyright law that attempts to define what copyright is, its purposes, and its rights. Subsequent revisions that need to be made should focus on these three aspects rather than focusing on the issue of the moment. Unfortunately, I have little faith that such an overhaul will take place. The government is under strong pressure from many large copyright-holding firms to make current laws much stricter, much more quickly. In this type of situation it would take a very powerful and independent group within government to stop the runaway train long enough undertake such a massive and philosophical task. I think that legislation will continue in its current direction of addressing specifics as it comes up. At some point there will be a recognition that it might need to start over fresh (like the tax code) but by that point I think it will be too cumbersome and difficult to actually do (again, like the tax code). So, what do I see as the future of copyright? I believe that copyright law will increasingly be made by regulatory groups other than Congress. Groups like the Copyright Office, World Intellectual Property Organization, and the Federal Communications Commission have had an increasing amount of say in copyright regulation and enforcement. I think that this trend will continue and increase. Many people have argued that current low-scale copyright infringement by individuals for personal use should simply be made legal. The rationale is that you can never stop everyone and it is not doing much harm. If it is made legal then policing resources would not be wasted on these tasks. I am a firm believer that this step will never take place even if a point is reached where the major copyright holders accept the behavior. Copyright as a concept is something that should be protected and I don't believe we will see the day when we move towards a society where it is not protected. Instead, I believe that we will head in the opposite direction. In my estimation we will see an increase in the penalties for copyright infringement and in the resources dedicated to stopping it. These types of scare techniques (if it's hard to catch, then up the punishment to make it more threatening) have been used for hundreds of years. Their success has been debatable but it is a common reaction that I think we have and will see with regards to copyright. At the current point little fear exists of being caught due to the massive amounts of infringing taking place and the limited resources devoted to stopping it. In the next couple of years I think we will see the US government take steps to add more people dedicated to the problem. I don't think that the numbers will be great enough for a major crackdown but I do think the government and media will try to make it seem like it is. The other aspect to reducing infringement is technological-based limitation. We have seen increased desire to find a hardware or software solution to prevent copyright infringement and government support of these actions by making it illegal to figure out how they work. In this area I believe that major copyright holders will continue to pursue this avenue and will at some point be successful. Although they have yet to come out with a mechanism that is transparent but effective I believe that they will with more time. SUMMARY
REFERENCES Fisher, Daniel, Name that Note, Forbes.com, 10/18/2004 <http://forbes.com/business/glaobal/2004/1018/019.html> Graham, Jefferson, Copyright bill poses threat to iPod's future, USA Today, 7/5/2004 <http://www.usatoday.com/money/industries/technology/2004-07-05-induce-act_x.htm> Hardy, I. Trotter, Contracts, Copyright and Preemption in a Digital World, 1 RICH. J.L. & TECH. 2 (1995) <http://www.richmond.edu/jolt/v1i1/hardy.html> Hardy, I. Trotter, Project Looking Forward: Sketching the Future of Copyright in a Networked World, US Copyright Office, May 1998 <http://www.copyright.gov/reports/thardy.pdf> Lastowka, F. Gregory, Free Access and the Future of Copyright, Rutgers Computer & Technology Law Journal, Volume 27 2001, <http://www.chaihana.com/Paper.pdf> Loren, Lydia Pallas, The Purpose of Copyright, Open Spaces Quarterly, Volume 2 Number 1 <http://www.open-spaces.com/article-v2n1-loren.php> McCullagh, Declan, RIAA apologizes for threatening letter, News.com 5/12/2003 <http://news.com.com/2100-1025_3-1001095.html> Miller, Ernest, The Future of Copyright, the Future of Technology, Corante, 8/5/2004 <http://www.corante.com/importance/archives/2004/08/05/the_future_of_copyright_the_future_of_technology.php> |