Copyrights and Copywrongs

New York University Press

Chapter One

Copyright and American Culture

Ideas, Expressions, and Democracy

AT SOME POINT late in every televised baseball game, an announcer sounds the familiar warning: "No pictures, descriptions, or accounts of this game may be rebroadcast or retransmitted without the expressed, written consent of the office of the Commissioner of Major League Baseball." Baseball fans rarely question whether this statement is true. It turns out that this declaration is a far stronger warning than copyright law justifies. If one baseball fan is watching the seventh game of the World Series on television, and another is out of the country, say, in Argentina, there is no legal authority that could or would stop the first fan from writing a detailed description or account of the game and sending it via e-mail to the other. The office of the commissioner may claim to protect the specific pictures that emanate from the television broadcast because the network and Major League Baseball have agreed to share control of those rights. They have an interest in preventing sports bars from charging admission to view a televised gamethat might be available only on satellite or pay-per-view, for instance. But if a newspaper photographer captures a photo of a great over-the-shoulder catch in centerfield, she controls the copyright to that image. Her job will require her to "retransmit" the image over a modern and phone wires to her newspaper, and the newspaper will probably retransmit it to the Associated Press for other papers to use. In addition, all the sports reporters covering the World Series retransmit descriptions and accounts of the game to all their readers. They never ask for or receive written consent to do so. Besides, who was the "author" of Don Larson's perfect game in the World Series? The Office of the Commissioner? Whenever Americans encounter legal language, there is the distinct possibility they will believe whatever it commands. Major League Baseball is taking liberties, and therefore we are losing them. This is but one example of how the mythology of copyright interferes with the public's access to information. The public generally has more rights under the law than networks, publishers, and record companies want to concede. However, the widespread public perception that copyright law protects ideas, information, and data has a chilling effect on journalism, scholarship, analysis, criticism, and debate.

PATENTS, TRADEMARKS, AND COPYRIGHTS

There are three main branches of "intellectual property" law in the United States: patent, trademark, and copyright law. In recent years, a fourth area, trade secret law, has grown in importance as a way of rewarding commercial innovations outside the public licensing schemes that patent and copyright law employ. In addition, most industries that deal in "intellectual property" contractually constrain their participants such that contract law becomes de facto "intellectual property" law. Lately, there have been some efforts to create new types of "intellectual property" law to handle new practices and technologies such as architecture, semiconductor design, and database production. Each of these branches of what has become known as "intellectual property law" has distinct forms and functions, but many people blend their terms and purposes when discussing "intellectual property." To fully examine the development of copyright law in the twentieth century, we must clearly understand its distinct place within "intellectual property" in general.

Patent law encourages invention. It grants a temporary monopoly to an inventor of a tangible, useful, and "nonobvious" device or process. Patents cover inventions and processes, not words, texts, or phrases. A patent monopoly lasts a much shorter time than copyright does--twenty years compared with life of the author plus seventy years--but protects more broadly. A patent protects the ideas, as well as the specific invention itself, so that a similar invention that operates along the same lines as the protected invention would be considered an infringement. Patents come in three types. Utility patents protect new processes, machines, or compositions of matter (and improvements on previously invented processes, machines, or compositions). Design patents protect new ways of planning or constructing articles of manufacture. Plant patents protect new varieties of vegetation created through breeding or genetic engineering. Plant patents are especially valuable for both agribusiness and pharmaceutical development. A product must meet three standards to qualify for patent protection: usefulness, novelty, and nonobviousness. These used to be high standards to meet. But occasionally cases arise--as in the attempt to patent the human genome--that weaken, evade, or complicate these standards. Once a product is covered by a patent, the patent holder is required to place the details of the design in the public record, so that others might benefit from new or newly applied knowledge. In exchange for the public service of disclosure, the patent holder temporarily receives exclusive rights to make, sell, and authorize others to make or sell the patented product.

Trademark law lets a company protect and enjoy its "goodwill" in the marketplace. A trademark is some specific signifier such as a logo, design, color scheme, smell, sound, or container shape that points to the product's origin. It allows and provides an incentive for a company to offer a consistent product or some predictable quality. For instance, whenever you buy a beverage labeled "Coca-Cola," you assume from the name on the can that it will taste a certain way, and that it will taste just like the last Coke you drank. Although, as legal scholar Rosemary Coombe notes, trademarks do nothing to guarantee a product's quality or consistency. The social value of trademarks is minimal. Their commercial and proprietary value is enormous.

Trade secret law, which is extralegislative in origin and nature, is a powerful part of "intellectual property." It has few limitations. An idea's perceived value is the only basis for a trade secret. The secret maker declares something a secret, so it is. Examples of subjects of trade secrets include chemicals, complex (and not necessarily "new" or "nonobvious") manufacturing processes, lists of customers or potential clients, "source code" for computer programs, and corporate policies. There are two "standards" for trade secret legal protection: "secrecy" and "competitive advantage." In other words, a trade secret ceases to be a trade secret once the secret gets out by legal means or was easy to ascertain in the first place. And, if the company fails to realize any real benefit from protecting a trade secret, then distributing the information in question would not make the distributor legally liable. Trade secrets theoretically can last forever. They are essentially the payoff for not patenting or copyrighting expressions, information, or processes. Once patented, a process or formula would be highly protected, but only for twenty years. Trade secrets, if properly enforced, can be powerful and valuable commercial tools. The best example of a successfully protected trade secret is the recipe for Coca-Cola. If the company had patented it, the formula long ago would have lapsed into the public domain. By keeping the information unprotected, Coca-Cola retains complete control for as long as it wants. Trade secrets are violated through larceny, spying, or bribery. Unlike federal patent and copyright laws, trade secret laws are extended and enforced through the common law.

Copyright, on the other hand, was intended to protect literary, artistic, musical, and computer-generated works for a limited period of time. This grant of a limited monopoly against republication is supposed to provide enough of a reward to encourage creativity. Black's Law Dictionary defines copyright as "the right of literary property as recognized and sanctioned by positive law." The law, in the British and American traditions, is based on the concept that an "author" can create a distinct "work" by instilling his or her effort and skill to render it "original." Originality is a fundamental principle of copyright. It implies that the author or artist created the work through his or her own skill, labor, and judgment.

COPYRIGHT DEFINED

American copyright emanates from the U.S. Constitution, which directs Congress to create a federal law that provides an incentive to create and distribute new works. The law grants an exclusive right to copy, sell, and perform a work of original authorship that has been fixed in a tangible medium. The monopoly lasts for a limited time and is restricted by several provisions that allow for good faith use by private citizens, journalists, students, and scholars. 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 called "intellectual property." Although they have different philosophical foundations and histories, copyright has become bound in practice to such areas of the law as trademark regulation, patent law, unfair competition law, and trade secrets.

Copyright is more than one right. It is a "bundle" of rights that includes 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 in case others infringe on any of these rights. Control of these rights can be transferred--or "licensed"--via contract with another party. For instance, a novelist owns the copyright for an unpublished manuscript, but must sign a contract that transfers some elements of that bundle of rights to a book publisher before the book can reach stores. The novelist might retain the "derivative works" portion of that bundle and later negotiate a contract to transfer that right to a motion picture studio. Part of the problem with understanding the nature of copyright is that the word right is embedded in it. When Americans read the word right, the adjective inalienable tends to jump in front of it. However, copyrights would be more accurately described as "copyprivileges." According to American habits of political thought, rights preceded the state; privileges emanate from the state. Copyright is a "deal" that the American people, through its Congress, made with the writers and publishers of books. Authors and publishers would get a limited monopoly for a short period of time, and the public would get access to those protected works and free use of the facts, data, and ideas within them.

THE ROLE OF COPYRIGHT

The framers of the U.S. Constitution instructed Congress to develop a statute that would grant an incentive for authors and scientists to create and explore. 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. 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. A monopoly price on books was considered a "tax" on the public. It was in the best interest of the early republic to limit this tax to the amount that would be sufficient to provide an incentive, but no more and for no longer than that. 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 recent trends run counter to the original purpose of American copyright.

James Madison, who introduced the copyright and patent clause to the Constitutional Convention, argued in The Federalist 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. 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. Information could be deemed reliable only if it were subject to public debate. Ideas could be judged beneficial only if they had stood the tests of discourse and experience.

When President George Washington declared his support for the Copyright Act of 1790, he proclaimed that copyright would stabilize and enrich American 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." In other words, Washington believed that only through free and easy access to information could the public educate itself to be strong enough to resist tyranny and maintain a state that did not exceed its charges. Copyright encouraged learning, so it would benefit the republic, Washington reasoned.

Thomas Jefferson--author, architect, slave owner, landowner, and the most important American interpreter of John Locke--had no problems with the laws of the land protecting private property. Yet he expressed some serious misgivings about copyrights. 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."

The following summer, as Congress was sifting through the proposals that would form 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." Jefferson lost this battle, as he did many battles before 1800.

Significantly, the founders, whether enamored of the virtuous potential of copyright as Washington was, enchanted by the machinery of incentive as Madison was, or alarmed by the threat of concentrated power as Jefferson was, did not argue for copyrights or patents as "property." Copyright was a matter of policy, of a bargain among the state, its authors, and its citizens. 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 elucidated the flaw in the political economy 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 petroleum or computer operating systems). But 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 negative externalities, they were more than a century away. Even in the early twentieth 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.

THE SCOPE OF COPYRIGHT

An author can claim a copyright on many categories of creative expression, including literary works, audiovisual productions, computer software, graphic designs, musical arrangements, architectural plans, and sound recordings. According to the Copyright Act of 1976, a work is protected in all media and for all possible derivative uses as soon as it is fixed in a tangible medium of expression. This means that as soon as a writer types a story on a computer or typewriter, the work carries the protection of copyright law. Authors need not register the work with the Copyright Office of the Library of Congress unless they plan to pursue legal action against someone for violating the copyright.

The law specifically protects the "expression," but not the facts or ideas that underlie the expression. If one person writes a song that expresses the idea that world peace is desirable, that songwriter cannot prevent others from writing later songs, plays, or novels that use, criticize, or champion the same idea. However, subsequent songwriters should choose different lyrics, chord structures, and arrangements to ensure they do not trample on the original songwriter's copyright. In another example--one that corresponds to a case that reached the U.S. Supreme Court in 1991--it is clear that copyright does not protect "information." One company produced a telephone directory for an area. A second company used that list of names, addresses, and phone numbers, alphabetized by surname, to produce a second and competing directory. The first company sued, claiming copyright infringement. However, the Supreme Court ruled that the 1976 statute and a century of case law clearly stated that copyright protects only original works of authorship, not data. Alphabetization did not count as an "original" method of arrangement. There is a strong philosophical and policy argument for leaving facts, data, and ideas unprotected. The framers of the Constitution realized that for a democracy to function properly, citizens should have easy access to information and should be able to debate and criticize without fear of lawsuits.

For the same reason, the framers insisted that Congress be able to grant copyrights for a limited time only. They asserted that after authors had profited for a reasonable amount of time, their works should belong to the public and contribute to the richness of the culture and politics of the nation. For more than 120 years, American authors could enjoy copyright protection for mere 14-year terms, or, after 1831, 28-year terms which were renewable for another 14 years. From 1909 through 1978, the term was extended to 28 years, renewable for another 28 years. All works created since 1978 fell under the 1976 revision, which set the term as the life of the author plus 50 years, to benefit the author's kin. Most European nations in 2001 grant copyrights for 70 years past the death of the author, and the U.S. Congress in 1998 extended U.S. copyright to match the European term by passing the "Sonny Bono Copyright Term Extension Act."

Since 1891, the United States has signed a series of treaties that grant reciprocal copyright protection throughout the world, with few exceptions. The 1891 treaty with the United Kingdom protected American authors throughout the English-reading world, and protected British authors within the United States as well. Before this reciprocal treaty, British books sold at a much lower price in the United States than American-written books did, but British authors saw no return from the pirated editions. British authors felt stiffed, and American books could not compete with cheaper British works. Leveling the playing field benefited both groups.

But recent efforts to standardize copyright protection around the globe have been more complicated. Developing nations with weak currencies have spawned thriving black markets for pirated American films, compact discs, and computer programs. In an economy in which a popular American music compact disc might cost a consumer a week's wages, pirated versions offer an affordable choice at a fraction of the price. The U.S. government--on behalf of its software, music, and film industries--has been pressuring developing nations to enforce international treaties that protect copyrights. Meanwhile, European nations and media companies have been urging the U.S. government to abandon many of its copyright principles in favor of maximum protection for authors and producers. European nations have consistently granted a higher level of protection to authors and artists than American laws have. Most European copyright traditions lack the notion that copyright embodies a balance of interests that include the public as well as creators.

Continues...

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Excerpted from Copyrights and Copywrongs by Siva Vaidhyanathan Copyright © 2003 by Siva Vaidhyanathan. Excerpted by permission.
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