In 1672 Massachusetts introduced the first copyright law in what was to become the United States of America when it prohibited the making of reprints without the consent of the owner of the copy. As in England, copyright was granted to the printer, not the Creator. Thus the printer John Usher received the first copyright in America granting him the sole right and privilege of publishing the laws of Massachusetts.
Licensing laws were, however, in effect in Massachusetts from 1662 until the 1720s. As with the Monarch and Parliament in England, both the governor and legislature of the colony were quick to take offense at publications that they considered disagreeable, and there were sporadic prosecutions for seditious libel, beginning with William Bradford in 1692 and continuing until the Revolution (Duniway 1906).
While there were Licensing Acts in most of the other colonies, before the 1780s only Massachusetts had a formal copyright statute. There are three reasons:
First, despite the fact that works of American authors were published in America, the number of works was limited and a large proportion of the American market was dominated by British authors. Second, authors in the colonies were also editors and publishers. There was a sentiment or trade rule called “courtesy copyright”‘ or “mutual obligation”‘ among publishers, which effectively suppressed piracy. Third, there was little or no conflict of market share among publishers on account of the extensive and growing American market. The market was also strictly segmented. Each publisher often supported a specific political group confronting the others.
(Shirata 1999)
A year before the House of Lords made its decision on Donaldson v. Beckett, the Boston Tea Party marked the beginning of the American Revolution. Between 1773 and 1783 the United States was at war with Great Britain and there was no trade between the two – including in law books and legal decisions.
Accordingly, the last major copyright decision of the British courts current in legal circles of what was becoming the United States was Millar v. Taylor of 1769. The majority opinion penned by Justice Mansfield in the Millar case – that there was a ‘natural’ author’s copyright – held sway unqualified by the subsequent decision of the House of Lords in Donaldson v. Beckett.
As the revolutionary war played itself out the publishing industry in the colonies increasingly turned towards American authors. However, the trade courtesy that protected printer/publishers afforded no protection to Creators. Some authors began to lobby for ‘copyright’ protection confusing ‘author’s rights’ with the traditional copyright granted to publishers. In response to a petition from poet Joel Barlow, the Continental Congress:
Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their … executors, and administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their … executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing and vending the save to be secured to the original authors, or publishers, or … their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.
(Journal of the Continental Congress May 2, 1783).
The States responded (Shirata 1999: Table 1). What is surprising given the status of Millar v. Taylor, is that excepting three States, all adopted ‘trade-regulating’ copyright statutes similar to the Statute of Queen Anne. The likely reason being that the various States like:
The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. (Loren 1999)
This consuming fear of monopoly and censorship is captured in the words of Thomas Jefferson:
“I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”
Letter to Dr. Benjamin Rush ,September 23, 1800.
(Thomas Jefferson Online Resources, ME 10:173)
And, with respect to the copyright monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v. Taylor,
Thomas Jefferson, in 1788, exclaimed: “I hold it essential in America to forbid that any English decision which has happened since the accession of Lord Mansfield to the bench, should ever be cited in a court; because, though there have come many good ones from him, yet there is so much sly poison instilled into a great part of them, that it is better to proscribe the whole.”
(Commons 1924: 276)
Four years after the Continental Congress called on the States to introduce copyright the US Constitution was adopted in 1787 and was ratified a year later in 1788. Article I, Section 8 of the Constitution is now known as the “Intellectual Property or Copyright Clause” and states:
The 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;
The importance of the clause is evidenced by the fact that the power to promote ‘progress’ was one of very few powers to regulate commerce initially granted to Congress. Two years after ratification of the US Constitution, Congress passed the first Copyright Act of 1790: An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.
The state copyright statutes, most of which were enacted in response to the Continental Congress Resolution, were modeled on the Statute of Anne and thus presaged the inevitable. The federal copyright was to be a direct descendant of its English counterpart. The language in the United States Copyright Clause was almost surely taken from the title of the Statute of Anne of 1710; the American Copyright Act of 1790 is a copy of the English Act; and the United States Supreme Court in its first copyright case, Wheaton v. Peters, used Donaldson v. Beckett as guiding precedent in confirming copyright as the grant of a limited statutory monopoly.
(Patterson 1993)
Inclusion of a ‘monopoly-granting’ power in the Constitution and the Copyright Act of 1790 involved great debate and deliberation particularly between Thomas Jefferson, who initially opposed all monopolies including copyright, and James Madison who proposed its benefits and inclusion.
In this debate Madison played both sides of the fence, supporting natural or common law rights for Creators on the one hand, and promoting regulation and limitation of the publishing industry through statute on the other. His apparently contradictory opinions are expressed in his correspondence with Jefferson and in the Federalist papers.
These documents prove that Madison accepted traditional English ideas of copyright. That is, he understood copyright as a monopoly granted for only a limited term. Why did he explain copyright as a natural right in the Federalist when he clearly understood that copyright and patent were inevitable monopolies to promote science and literature? He seemed to believe it would be easier to persuade the people, amid the current mood of antipathy toward monopolies and England, to accept copyright and patent as natural rights than as trade regulation laws which were monopolistic in nature. It is well known that the Americans adopted the common law after screening aristocratic or prerogative elements out. The Founding Fathers understood the nature of copyright as a monopoly that was granted for administrative purposes to promote the sciences and they adopted copyright law after modifying its doctrine to suit American taste. That was America’s first copyright statute, the Copyright Act of 1790.
(Shirata 1999)
The result was a bifocal vision of copyright in the United States. On the one hand, the Constitution and Copyright Act adopted the traditional English idea of copyright as trade regulation to limit the monopoly and censorship powers of the publishing industry and its duration thereby creating a ‘public domain’. On the other hand, lawyers and academics advocated a common law copyright derived from ‘natural law’ arguing that the Constitution and Copyright Act merely gave it written form.
The issue came to a head in the first major American copyright case – Wheaton v. Peters in 1834. As in the earlier British case of Donaldson vs. Beckett of 1774, the waters had been thoroughly clouded. While there had never been a Common Law author’s copyright, only a printer’s copyright, both cases turned on the issue of an assumed common law rights of authors in works prior to the Copyright Act of 1710 and 1790, respectively. The questions facing the court became, in effect: was the Act intended to give additional rights to the author or to replace common law rights, and if there was a common law perpetual copyright, did it continue in Britain after the Statute of Queen Anne and in the United States after Revolution?
Loosed from its historic moorings, copyright took on a life of its own for the vague purpose of stopping illegal copying, and ultimately, came to be viewed as part of the law protecting “intellectual property.”
(Mead 1999)
The Federal Supreme Court concluded there was no common law copyright and that statutory protection could only be obtained by adhering to the 1790 Act. It also confirmed that copyright was a privilege, not a right. In its opinion, the case was about protection against monopoly and accepted the English precedent for the United States. In the process, however, the Court also rejected what later became known as the “moral” rights of authors.
Beyond the ‘natural’ vs. ‘positive’ law, the first US Copyright Act also involved at least five significant expansions of the copyright concept. First, protection was extended to maps and charts as well as books. The Statute of Queen Anne only protected books. While related, the cost structure of the two industries are arguable quite different. Initial extension of copyright protection was followed in 1802 to include “engravings, etchings and prints”, in 1831 “music and cuts” and, by 1870, works eligible for copyright protection included:
Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, shall … have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works.
(41st Cong. Sess. 2 Ch.230 Sec. 86,1870)
Subsequent copyright acts extended protection to broadcasts, motion pictures and software programs. In this way the Copyright Act of 1790:
…stands as the point of divorce between the perceived purposes (which became the protection of authors and publishers) and the methodology of the law (which remained to protect a movable-type based printing industry). The understood goal of the law was set adrift from the actual workings of the law.
(Mead 1999)
Second, the language of the 1790 Act represented an apparent if not actual change in philosophy, if not practice:
Whereas, the Copyright Statute of 1709 clearly recognized that the protection was for the benefit of the publishers, with what we would now call a “trickle down effect” to the authors; the U.S. acts uniformly talk about the protection as being primarily for the benefit of the author and only benefiting the publisher as an assignee. But, again, this occurs without any change in how the law worked to benefit the publisher rather than the author.
(Mead 1999)
Proprietors, due to the Anglo-American legal fiction that corporate entities (‘legal persons)’ have the same rights as individual human beings (‘natural persons’), could, however, continue to claim copyright in their own right. Furthermore, another peculiarity of the Anglo-American copyright tradition is that copyright to a work created by an employee or under commission belongs to the employer and neither economic nor moral rights attach to the actual author employee.
Third, while language and philosophy may have changed, the financial position of printers and publishers was in fact enhanced. Copyright protection was initially available only to US citizens or residents.
The first national copyright law, passed in 1790, provided for a 14-year copyright … but only for authors who were citizens or residents of the US. The US extended the copyright term to 28 years in 1831, but again restricted copyright protection only to citizens and residents.
This policy was unique among developed nations. Denmark, Prussia, England, France, and Belgium all had laws respecting the rights of foreign authors. By 1850, only the US, Russia and the Ottoman Empire refused to recognize international copyright.
The advantages of this policy to the US were quite significant: they had a public hungry for books, and a publishing industry happy to publish them. And a ready supply was available from England. Publishing in the US was virtually a no-risk enterprise: whatever sold well in England was likely to do well in the US.
American publishers paid agents in England to acquire popular works, which were then rushed to the US and set in type. Competition was intense, and the first to publish had an advantage of only days before they themselves were subject to copying. Intense competition leads to low prices. In 1843 Dickens’s Christmas Carol sold for six cents in the US and $2.50 in England.
(Varian 1998)
It was not until passage of the International Copyright Act (known as the Chace Act) in 1891 that the United States accorded foreign authors equal treatment if the author’s country of citizenship accorded reciprocal protections to the works of American authors. However, special benefits continued to flow to American printers because of the longest-lived U.S. non-tariff trade barrier in history – the “manufacturing clause” of U.S. copyright law (Boyd 1991).
The Chace Act restricted the import of foreign-printed books by denying U.S. copyright protection to, at first, works by all English-language authors, and then to American authors unless their work was printed in the US. It was through this provision, for example, that the works of Henry Miller including the Tropic of Cancer and Tropic of Capricorn were kept out of the United States because only a French printer could be found to publish them. This restriction on granting copyright to works by American authors printed abroad was not removed until 1984.
Fourth, another hotly debated issue during the drafting stage of both the Copyright Clause of the Constitution and Copyright Act of 1790 was the duration of copyright. Initially duration was to be based on the average life span of authors. Thus under the Copyright Act of 1790, the duration of copyright was set at 14 years with the possibility of renewal for another 14 years if the author was still alive. Thomas Jefferson based a proposed term for copyright on the principle that “the earth belongs in usufruct to the living”, and computed it by means of actuarial tables:
Generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from tables of mortality [and is found to be] 18 years 8 months, or say 19 years as the nearest integral number… The principle, that the earth belongs to the living, and not to the dead, is of very extensive application… Turn this subject in your mind, my dear Sir… and develop it with that perspicuity and cogent logic so peculiarly yours… Establish the principle… in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years.
(Jefferson, Letter to James Madison, September 6, 1789)
However, the term was extended in 1831 to 28 years with the possibility of renewal for another 14 years. In 1909, it was extended again to 28 years with the possibility of renewal for another 28 years. In 1976 duration became the author’s life plus 50 years. With accession by the United States to the Berne Convention in 1986, the duration of American copyright is now the author’s life plus 75 years. Put another way, assuming 20 years per generation, American copyright now extends over four generations – a long distance from Jefferson’s limited monopoly based on the principle “the earth belongs in usufruct to the living”. Some observers argue that the term of copyright now, in effect, approaches the ‘perpetual copyright’ enjoyed by the Stationers’ Company before 1710.
The extension of the renewal term of copyright .. is unconstitutional because (1) it is motivated by a desire to establish perpetual copyright; (2) it provides nothing to authors (most of the authors being dead); (3) it does nothing to encourage the arts .. ; (4) its effect will be to discourage the arts by preventing the timely entrance of works into the public domain; and (5) it exceeds any reasonable interpretation of the constitutional requirement of “limited times.” The Constitution’s framers, though suspicious of monopoly, considered copyright to be a bearable monopoly only because the term was to be limited; the expiration of copyright was considered indispensable for copyright’s proper functioning. The U.S. Supreme Court for the most part has adhered to the framers’ view. The extension of the term of copyright to 95 years, however, overthrows the constitutional foundations of copyright law.
(Phillips 1998)
Fifth, and finally, three words sum up the US rationale for granting copyright: progress, learning & knowledge. All three relate to the public domain and thereby to the third party in the copyright equation: the User.
With respect to ‘progress’, Article I, Section 8 of the Constitution gives Congress the power to “.. promote the Progress of .. useful arts, by securing for limited Times to Authors .. the exclusive Right to their respective Writings.. “. Such time limited rights are explicitly made available only to ‘authors’. The purpose of such rights is to promote the progress of the arts. This requires works be accessible to the public, that is, to Users. Thus such works are to become freely available to Users after the ‘limited’ time has passed, that is, they should enter the public domain.
With respect to ‘learning’, the Copyright Act of 1790 is entitled: An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. Derived from the title to the Statute of Queen Anne, the US Copyright Act justifies ‘securing the Copies’ as an encouragement for learning among the people, that is, Users.
The importance of ‘learning’ lead to the ‘Fair Use’ clause of the Copyright Act limiting the copyright monopoly even during its limited duration. In the simplest terms, this means: nonprofit copying is fair use. This provision allows public libraries, educational institutions and individuals to copy works without paying royalties to Proprietors and still avoid the charge of ‘copyright infringement’.
By contrast in Canada (following the British tradition), the corresponding provision is ‘fair dealing’. In the simplest terms, this means copying a work, without payment of royalties to its Proprietor, constitutes an infringement except under extremely tightly defined conditions. For example, under current provisions of the Canadian Copyright Act, a public or educational library is required to assure itself that a patron is engaged in bona fide ‘research and private study’ before making photocopies available to him or her and to thereby obtain a ‘fair dealing’ exception to copyright infringement. Similarly, under the Canadian Act the only way a teacher can copy a work for classroom use without infringing copyright is to hand copy on an erasable surface. With passage of the Millennium Digital Copyright Act by the US Congress, however, it appears that the ‘fair dealing’ concept is beginning to slip into American copyright law.
Furthermore, unlike the title to the Statute of Queen Anne and Article 1, Section 8 of the US Constitution, the American Copyright Act of 1790 explicitly recognizes that copyright may be held by ‘Proprietors’, not just ‘Authors’. It is by this device that ‘moral rights’ of a Creator have been effectively extinguished by the American courts. It is also by this device that the media empires of the 20th and 21st centuries, worthy successors to the Stationer’s Company, have arisen.
With respect to ‘knowledge’, President George Washington said in his message to Congress leading to enactment of the 1790 Copyright Act: “Knowledge is, in every country, the surest basis of public happiness.” (Washington 1790). Thus long before the concept of a ‘knowledge-based economy’, knowledge was recognized by the Founding Fathers of the American Republic as intrinsically valuable to the public good. The Copyright Act was a device intended to minimize monopoly, foster learning and increase the knowledge of the people and thereby raise the level of happiness in America. Such public happiness, however, is reduced to the extent that copyright usurps the public domain beyond its constitutional limits (Patterson 1993).
This was the state of copyright law in the United States when the French Revolution was but a year old.
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) 106th Congress (17 bills introduced/ 3 Public Laws passed) | ||
| # | Title | Introduced |
| H.R. 89 | Satellite Access to Local Stations Act | 1/6/99 |
| H.R. 354 | Collections of Information Antipiracy Act | 1/19/99 |
| S. 95 | Trading Information Act | 1/19/99 |
| S. 247 | Satellite Home Viewers Improvements Act | 1/19/99 |
| S. 303 | Satellite Television Act | 1/25/99 |
| H.R. 768 | Copyright Compulsory License Improvement Act | 2/23/99 |
| H.R. 851 | Save Our Satellites Act of 1999 | 2/25/99 |
| H.R. 1027 | Satellite Television Improvement Act | 3/8/99 |
| H.R. 1189 | Technical Corrections | 3/18/99 |
| H.R. 1554 | Satellite Copyright, Competition, and Consumer Protection Act of 1999 | 4/26/99 |
| H.R. 1761 | Copyright Damages Improvement Act | 5/11/99 |
| H.R. 1858 | Consumer and Investor Access to Information Act | 5/19/99 |
| S. 1257 | Digital Theft Deterrence and Copyright Damages Improvement Act | 6/22/99 |
| P.L. 106-44 | Technical Corrections in Title 17 | 6/22/99 |
| S. 1835 | Intellectual Property Protection Restoration Act | 10/29/99 |
| P.L. 106-113 | Intellectual Property and Communications Omnibus Reform Act of 1999 | 11/17/99 |
| 11/17/99 | Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 | 11/18/99 |
(b) 105th Congress (23 bills introduced/ 4 Public Laws passed) | ||
| # | Title | Introduced |
| H.R. 72 | Computer Maintenance Competition Assurance Act | 1/7/97 |
| H.R. 401 | Intellectual Property Antitrust Protection Act | 1/9/97 |
| S. 28 | Fairness in Musical Licensing Act | 1/21/97 |
| H.R. 604 | Copyright Term Extension Act | 2/5/97 |
| P.L.105-801 | Copyright Technical Amendments | 2/11/97 |
| H.R. 789 | Fairness in Musical Licensing Act | 2/13/97 |
| P.L.105-298 | Copyright Term Extension Act | 3/20/97 |
| S. 506 | Copyright Clarifications Act | 3/20/97 |
| H.R. 1621 | Copyright Term Extension Act | 5/15/97 |
| P.L. 105-80 | To amend title 17, United States Code, to provide that the distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein | 6/19/97 |
| H.R. 2180 | On-Line Copyright Liability Limitation Act | 7/17/97 |
| 7/17/97 | Criminal Copyright Improvement Act | 7/21/97 |
| P.L.105-304 | Digital Millennium Copyright Act formerly named WIPO Copyright Treaties Implementation Act | 7/29/97 |
| S. 1121 | WIPO Copyright and Performances and Phonograms Treaty Implementation Act | 7/31/97 |
| S. 1146 | Digital Copyright Clarification and Technology Education Act | 9/3/97 |
| H.R. 2589 | Copyright Term Extension Act | 10/1/97 |
| H.R. 2652 | Collections of Information Antipiracy Act | 10/9/97 |
| H.R. 2696 | Vessel Hull Design Protection Act | 10/22/97 |
| H.R. 3048 | Digital Era Copyright Enhancement Act | 11/13/97 |
| H.R. 3209 | On-Line Copyright Infringement Liability Limitation Act | 2/12/98 |
| H.R. 3210 | Copyright Compulsory License Improvement Act | 2/12/98 |
| S. 1720 | Copyright Compulsory License Improvement Act | 3/5/98 |
| S. 2037 | Digital Millennium Copyright Act | 5/8/98 |
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.
The Future
So what of the future? Whether it is UFOs, the X-Files, Star Wars or Star Trek, science fiction has emerged as the main source of the new myths and fairy tales of our post-modern world. ‘Sci-fi’ literature can be classified as forecasting either ‘utopian’ or ‘anti-utopian’ futures. Using these two classes, two alternative futures for copyright and intellectual property in general can be cast.
Perhaps the most powerful and chilling anti-utopian future to emerge since George Orwell’s 1984 was penned by William Gibson in a series of novels beginning, ironically, in 1984 with Neuromancer. It was in this first novel that the terms ‘cyberspace’ and ‘virtual reality’ were coined (Gibson 1984) almost a decade before the Internet and the World-Wide Web became a popular reality. Followed by Count Zero, Mona Lisa Overdrive and Virtual Light, Gibson created a whole new genre of science fiction alternatively called ‘cybergothic’ or ‘cyberpunk’.
In Gibson’s vision of the future, the mind’s eye fills with swirling multimedia, merging and mutating into a consensual hallucination called cyberspace. This ‘virtual reality’ rushes forward to Users fueled by techno-greed for bits and bytes. Hackers and ‘console cowboys’ fight with global corporations for the high ground in a continuous war for encrypted information. And in this war individuality and privacy erode before the ceaseless search for power and profit by a techno-corporate elite who knows which buttons to push while the rest of humanity cannot even program a VCR.
Copyright protection in cyberspace, that today includes encryption technology, evolves into what Gibson calls ‘ICE’, i.e. intrusion counter-measures electronic. This, he projects, will include ‘black ice’ using electronic feedback that may prove fatal to hackers. Protection of intellectual property in Gibson’s future also includes ‘cerebral bombs’ implanted in the brains of corporate executives and timed to go off if an executive ‘defects’ to another corporation.
Gibson’s world of the near future is one in which copyright, copyright protection and intellectual property rights in general runs wild. The corporate sector uses both increasingly restrictive laws as well as technological means to tightly control access to the expression of ideas fixed in material form.
While admittedly extreme, Gibson’s vision of the future is a logical extension of trends in copyright law and technology current in the Present. Extension of the term, the scope and the coverage of Anglo-American copyright are fueled by corporate Proprietors pursuit of profit. Little consideration has been given to the rights of Creators and Users.
By contrast, a ‘utopian’ alternative future for copyright can be cast using the ancient myth of ‘the Trojan horse’. When the United States acceded to the Berne Copyright Convention in 1989 it did so mainly to benefit its corporate copyright Proprietors by extending the term of copyright protection for existing works to the life of the author plus 75 years. Thus Disney can protect Mickey Mouse for an additional 25 years. This extension may, in the long run, parallel the short run gains of the Stationers’ Company through the extension granted by the Statute of Queen Anne in 1710. The Berne Convention has entered the gates of the American copyright citadel and may prove to be a Trojan horse for Creators.
The Berne Convention contains the full range of Creator’s economic and moral rights allowed under the Civil Code. As noted above, certain token moves had to be made by the U.S. for its accession to be accepted by the Berne Union, e.g. the Visual Artist Protection Act. As the American creative community becomes more familiar with the Berne Convention it is possible that pressure will build for adoption of more of the Civil Code rights recognized by the Convention. First and for most these include generic rights of paternity and integrity. Second, the Berne Convention recognizes ‘rights of following sales’ or ‘droit de suite’ in French. At the state level, the right of following sales has already been granted to visual artists who are resident in California. A young artist sells low but as his or her career matures earlier works increase in value. While collectors benefit from the re-sale of these early works, the artist gets nothing. The right of following sale insures a percentage of all subsequent sales go back to the artist.
Another right recognized by the Berne Convention is the ‘public lending right’ currently recognized by more than 19 countries around the world including Canada. Canadian public lending rights (PLRs) are granted for books written by Canadian authors and held in Canadian libraries. PLRs assume the public benefits from libraries but authors suffer lost sales. Therefore, market failure exists justifying a public policy response. PLRs compensate authors from a special federal fund. Payment is capped so no one author receives too much. Payment is restricted to Canadians and goes directly to the creator and cannot be transferred to Proprietors.
Assuming the Trojan horse that is the Berne Convention does alter the landscape of American copyright the next step towards enhancing the financial viability of the creative life would be adoption of the current policy of the Republic of Ireland (Eire) that exempts copyright income earned by resident creators from income tax. The exemption applies only to individuals, not to corporations. The result has been an influx of creative talent who pay sales and other taxes offsetting the tax expenditure to the public treasury. In addition, such talent enriches the cultural as well as economic life of the country.
If the Berne Convention proves to be a true Trojan horse, then American creators will finally be able to enter the Garden again but this time eat of the fruit of a tree that fulfills the promise of the Myth of the Creator:
…intellectual property is, after all, the only absolute possession in the world… The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property…
(Chaffe 1945).