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Postby Exalted Ugu » Thu Sep 11, 2003 4:48 am

From this month's issue of This Magazine:

Along with patents and trademarks, copyright is one of the three domains of what is known as intellectual property. Laws governing intellectual property give creators and inventors the right to control some aspects of the use, distribution, or application of intellectual goods. Copyright gives the author a limited monopoly over various uses of a work. I have copyright to this article, which means that, certain crucial exceptions aside, no one can make a copy of it without my permission. Michael Jackson owns the copyright to most of the music of The Beatles, which means no one can copy (to sell, or to simply enjoy) “Hey Jude” or “Revolution” without Michael Jackson’s consent. Copyright gives the holder the exclusive right to make copies, authorize others to make copies, create derivative works such as translations and displays in other media, sell the work, perform the work publicly, and petition a court for relief if others infringe on any of these rights. The copyright holder also has the right to transfer or license any of these rights to another person or body, such as a publisher or distributor.

Copyright, however, covers only a given expression, not the facts or ideas that underlie or inspire it. So John Lennon can write (and copyright) “Give Peace A Chance,” but he cannot prevent others from writing a song expressing the idea that peace is desirable. A Brazilian novelist can write and copyright a story about a boy who ends up sharing a lifeboat with a jaguar, but he cannot prevent Yann Martel from turning that same idea into a Booker Prize-winning novel. In addition, anyone may “deal fairly” with any work for the purpose of private study, research, criticism, review, news reporting or news summary.

As a concept, copyright has its roots in 16th century England. In 1556, Queen Mary I granted a charter to the Stationers’ Company, giving it absolute control over the publishing trade in England. The Company was given the sole authority to print, bind and sell books—and was only allowed to publish books that were licensed by the Crown. This deal served both the censorious needs of the Crown and the monopolistic interests of the printers: Queen Mary forbade the publication of works she considered heretical, seditious or treasonous and the Stationers’ Company was given police authority to search out, seize and destroy offending works.

The Company lost its Charter in 1694, and in 1710 Queen Anne proclaimed what is generally acknowledged as the world’s first true copyright law. Unlike the overt censorship under Queen Mary, the aim of the Statute of Anne was “the encouragement of learned men to compose and write useful books.” New books still had to be registered with the Stationers’ Company, but the statute made no mention of sedition or heresy. In fact, the Company was required by law to accept all new listings. The big change was in the nature of the right conferred on the publishers, as the former perpetual monopoly was reduced to a term of 28 years after publication.

What is important to note about the Statute of Anne is that it is clearly an artificial legal mechanism created to reward authors and to provide an incentive for the creation of more “useful books.” At least as far as the Anglo-American legal tradition is concerned, copyright laws have never been intended to confirm any sort of a property right.

Copyright has always conferred a temporary and limited monopoly to serve the public good. In Canada, copyright generally lasts for the life of the author plus 50 years, after which the work enters the public domain. One could describe copyright as a tax or subsidy from readers that is paid to authors to encourage more writing.

It is here that we encounter a curious tension. Copyright is, by definition, designed to give the right to the expression of an idea to a single copyright holder. But whatever is copyrightable is simultaneously protected by section 2(b) of the Charter of Rights and Freedoms, which guarantees every Canadian “freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.” Nothing in the Charter suggests that section 2(b) does not apply if an expression has previously been published by someone else.

To make the point as clearly as possible: If someone holds a copyright to a certain work, they can prevent you from making use of that expression in various ways. Copyright takes certain forms of expression off the market, so to speak. And that would appear to violate your constitutional rights.

Why, then, do Canadians tolerate copyright at all? Why do we allow individuals (or, more often, corporations) to privatize certain forms of expression?

As the term “intellectual property” has gained currency in the last few decades, it has become far more common to think that ideas may be owned by individuals or groups in the same way that houses and cars are. It is, however, an unfortunate metaphor, encouraged by copyright-rich corporations, their lawyers, and lazy judges. And it is a metaphor that is causing great mischief in the creative world.

This is because there is an important difference between tangible goods—such as crops, machines, cattle—and intellectual ones—such as songs, poems, and software. It is a difference that Thomas Jefferson noted in a frequently quoted passage: “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.”

Jefferson saw that ideas are different from material resources. First of all, it is hard to put fences around ideas and exclude people from them. I can keep a secret from you, but once I tell it to you I can’t take it back. Second, ideas are what economists call “non-rivalrous” goods, which means they can neither be exhausted through use, nor can one person’s use limit (or “rival”) the amount available to anyone else. If I hum the chorus to Avril Lavigne’s “Complicated” in your presence, you can proceed to hum it to yourself all day without depriving me of a similar pleasure.

What this suggests is that there is a critical difference in how these resources ought to be managed. If the resource is rivalrous—as motorcars or codfish are—then we need to ensure that the resource is both produced or accessed and not overused or depleted. On the other hand, if the resource is non-rivalrous, then we need only to ensure that the resource is created. What we have is a “provisioning problem,” because once it is created there is no danger that the resource will be depleted. That’s right. Rock and roll will never die.

The central problem of copyright law, then, is to figure out how to solve the provisioning problem, to ensure that we have access to as many good and useful ideas as possible. Copyright becomes a balancing act, a careful weighing of the public interest against private incentive. The aim of copyright is to give an author an exclusive right sufficient to create an incentive to produce, but not so great as to undermine the public domain.

In order to figure out what balance to strike, we must first consider why we provide these incentives at all. In his classic essay “On Liberty,” John Stuart Mill argues that freedom of expression, freedom of taste and pursuits, and freedom of association are the three basic liberties without which no society can be considered truly free.

Freedom of expression serves a number of extremely valuable personal and public ends and it deserves as much protection as we can possibly give it. It plays a vital role in the democratic process and it is an important aspect of individual development and self-realization in religion, commerce and the arts. It is also essential to progress in the useful arts and sciences. This is because ideas do not appear in one’s head fully formed. Individually, we humans are not that smart, and it takes all of our collective effort to come up with anything that is worthwhile and lasting. Ideas are built upon and out of other ideas, and to achieve progress, we need to pool our intellectual resources and build up an intellectual and artistic commons from which everyone can draw. Former American Supreme Court justice Louis Brandeis put it nicely when he wrote, “the general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communications to others, free as the air to common use.”

In practice, things have become much different. The concept of copyright as an incentive mechanism and the notion that access to intellectual goods should be as free as the air has become forlorn. Information, supposedly, wants to be free, yet our legislators and judges are allowing copyright holders to acquire more control over their works than Queen Anne or Thomas Jefferson ever envisaged.

An author’s copyright is protected by law, but until recently we have not needed police to patrol bookstores to make sure that people aren’t running off and selling bootlegged copies of Atwood or Richler. Novels, films and music all need to be fixed in media such as paperback books, video cassettes and compact discs. Publishers and distributors provide these at a price that makes it more convenient to buy the product than to go to the hassle of obtaining a pirated copy. We have always protected copyright by protecting things; as cyberguru John Perry Barlow put it, “for all intents and purposes the value was in the conveyance, and not the thought conveyed. In other words, the bottle was protected, not the wine.”

The internet changes the situation somewhat. The net is able to store and deliver content anywhere on earth quickly and at no cost. The architecture of the net makes copyright law hard to enforce, because there are no longer any individual containers to control and charge money for. When government and corporations finally clued into this around the mid-1990s (“it’s like an ‘information superhighway,’ sir”), they went into a panic. They decided that the solution was to strengthen copyright law itself, which in the United States gave rise to a number of disturbing new laws. The best-known example is the Sonny Bono Copyright Term Extension Act (which, incidentally, had nothing to do with Sonny Bono except that he was a congressman and shortly before the bill was introduced he skied into a tree and died).

The U.S. Congress passed the Sonny Bono Act, also known as the Mickey Mouse bailout bill, in 1998, and the Supreme Court upheld it last October. The Act extended to all “original works of authorship” an additional protection of at least 20 years. Any work copyrighted since 1978 gets copyright protection for the life of the author plus 70 years and anything that was copyrighted before 1978 is protected for a flat 95 years, regardless of when the author died.

What is most astonishing about the act is that it is retroactive—hence the “Mickey Mouse” slur. The first Mickey Mouse character was copyrighted in 1928, and was set to revert to the public domain this year. Now, thanks to Congress and the Supreme Court, Disney keeps Mickey until 2023, and nothing will enter the public domain in the U.S. until then.

This makes a complete mockery of the notion that copyright is supposed to provide an incentive to authors. The point of the act can’t possibly be to provide Walt Disney or F. Scott Fitzgerald with an incentive to produce Fantasia or The Great Gatsby, since these already exist. It is also at odds with the American constitutional provision that gives Congress the right “to promote the progress of science and useful arts by securing [copyright] for limited times.” Since Congress has steadily raised the term limit on copyright from the original 14 years to something around 150 years, copyright holders are being given what amounts to a property right on an installment plan. This is a straightforward plundering of the public domain in order to benefit a handful of large, copyright-rich corporations such as Disney and AOL Time Warner.

The strengthening of copyright into a virtual property right has emboldened copyright holders of all sorts, and it has resulted in a distinct chilling effect on freedom of expression. The need to “clear rights” for works used in films is putting a huge burden—creative and financial—on authors and producers. The film Twelve Monkeys was stopped by a court for 28 days after its release because an artist claimed a chair in the movie resembled a sketch of a piece of furniture that he had designed. In 1998, a judge stopped the release of The Devil’s Advocate for two days because a sculptor claimed his art was used in the background of a scene.

What do you believe is a reasonable protection for copyright holders? The 'right' to own intellectual works is a quite recent one, and ostensibly designed NOT to confer a sort of ur-property status to ideas but instead to artifically create a market for these ideas so as to STIMULATE THE PRODUCTION OF NEW IDEAS. Obviously, as stated above, 150 years of copyright is not going to cause walt disney to create any new works, and i really don't think that tacking a few more years onto the amount adds any extra incentive to content-producers. It seems to me that modern copyright law is not designed to stimulate the production of original content, but to maximize profits for those corporations who make their money off the backs of the creative workers.

It is my belief that ALL copyright should not exceed the life of the artist, or, if created for a company, it should not exceed 25 years.

Software, because of the special priviliges it enjoys as the world's least physical property (ie, the fact that you can't even BUY software these days, the idea of shrink-wrap contracts, etc) should expire after 10 years, maximum. Any software older than ten years, or which is neither being actively marketed, sold or maintained by the rights holder should enter the public domain for reasons of public good. (for instance, to allow developers to debug and dissassemble old but still used mainframe software, a practice that is currently illegal)

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Postby TerraFrost » Fri Sep 12, 2003 3:43 am

provisioning problem

the provisioning problem the article mentioned was an interesting point... the purpose of economics is to manage *limited* resources. if you can make an exact copy of some file, without any loss in quality, what-so-ever, then it doesn't seem to me to be a limited resource.

also, extended copyrights are going to actually reduce the diversity of works, in the future - not enhance it by inspiring people to create, mainly because the media on which a work is stored is simply not going to last forever - age will eventually destroy the media itself, and the readers for the media will eventually become out dated, too.

finally, the only people with the power to even enforce intellectual property rights are big corporations.
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Postby tsian » Sat Sep 13, 2003 5:56 am

New strategy for RIAA. BLAME CANADA:
Vive le titre de deux.
In an ironic twist, the only trait I find completely appaling is intolerance.
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