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Both novice and experienced teachers of writing will learn from the contributors' practical suggestions about how to fashion unique assignments, teach about proper attribution, and increase students' involvement in their own writing. This is an anthology for anyone interested in how scholars and students can navigate the sea of intellectual information that characterizes the digital/information age.
A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it? How does the consumer benefit from that scenario? The answer is, there is no benefit. -Jack Valenti
The copyright law on the books is a large aggregation of specific statutory provisions; it goes on and on for pages and pages. When most people talk about copyright, though, they don't mean the long complicated statute codified in title 17 of the U.S. Code. Most people's idea of copyright law takes the form of a collection of principles and norms. They understand that those principles are expressed, if sometimes imperfectly, in the statutory language and the case law interpreting it, but they tend to believe that the underlying principles are what count. It is, thus, unsurprising that the rhetoric used in copyright litigation and copyright lobbying is more often drawn from the principles than the provisions.
One can greatly overstate the influence thatunderlying principles can exercise over the enactment and interpretation of the nitty-gritty provisions of substantive law. In the ongoing negotiations among industry representatives, normative arguments about the nature of copyright show up as rhetorical flourishes, but, typically, change nobody's mind. Still, normative understandings of copyright exercise some constraints on the actual legal provisions that the lobbyists can come up with, agree on, convince Congress to pass, and persuade outsiders to comply with. The ways we have of thinking about copyright law can at least make some changes more difficult to achieve than others.
Lawyers, lobbyists, and scholars in a host of disciplines have reexamined and reformulated copyright principles over the past generation, in ways that have expanded copyright's scope and blinded many of us to the dangers that arise from protecting too much, too expansively for too long. That transformation has facilitated the expansion of copyright protection and the narrowing of copyright limitations and exceptions.
At the turn of the century, when Congress first embraced the copyright conference model that was to trouble us for the rest of the century, the predominant metaphor for copyright was the notion of a quid pro quo. The public granted authors limited exclusive rights (and only if the authors fulfilled a variety of formal conditions) in return for the immediate public dissemination of the work and the eventual dedication of the work in its entirety to the public domain.
As the United States got less hung up on formal prerequisites, that model evolved to a view of copyright as a bargain in which the public granted limited exclusive rights to authors as a means to advance the public interest. This model was about compensation: it focused on copyright as a way to permit authors to make enough money from the works they created in order to encourage them to create the works and make them available to the public. That view of the law persisted until fairly recently.
If you read books, articles, legal briefs, and congressional testimony about copyright written by scholars and lawyers and judges fifty years ago, you find widespread agreement that copyright protection afforded only shallow and exception-ridden control over protected works. Forty, thirty, even twenty years ago, it was an article of faith that the nature of copyright required that it offer only circumscribed, porous protection to works of authorship. The balance between protection and the material that copyright left unprotected was thought to be the central animating principle of the law. Copyright was a bargain between the public and the author, whereby the public bribed the author to create new works in return for limited commercial control over the new expression the author brought to her works. The public's payoff was that, beyond the borders of the authors' defined exclusive rights, it was entitled to enjoy, consume, learn from, and reuse the works. Even the bounded copyright rights would expire after a limited term, then set at fifty-six years.
A corollary of the limited protection model was that copyright gave owners control only over particular uses of their works. The copyright owner had exclusive rights to duplicate the work. Publishing and public performance were within the copyright owner's control. But copyright never gave owners any control over reading, or private performance, or resale of a copy legitimately owned, or learning from and talking about and writing about a work, because those were all part of what the public gained from its bargain. Thus, the fact that copyright protection lasted for a very long time (far longer than the protection offered by patents); the fact that copyright protection has never required a government examination for originality, creativity, or merit; and the fact that copyright protects works that have very little of any of them was defended as harmless: because copyright never took from the public any of the raw material it might need to use to create new works of authorship, the dangers arising from overprotection ranged from modest to trivial.
There was nearly universal agreement on these points through the mid- 1970s. Copyright was seen as designed to be full of holes. The balance underlying that view of the copyright system treated the interests of owners of particular works (and often those owners were not the actual authors) as potentially in tension with the interests of the general public, including the authors of the future; the theory of the system was to adjust that balance so that each of the two sides got at least as much as it needed. In economic terms, neither the author nor the public was entitled to appropriate the entire surplus generated by a new work of authorship. Rather, they shared the proceeds, each entitled to claim that portion of them that would best encourage the promiscuous creation of still newer works of authorship.
If you're dissatisfied with the way the spoils are getting divided, one approach is to change the rhetoric. When you conceptualize the law as a balance between copyright owners and the public, you set up a particular dichotomy-some would argue, a false dichotomy-that constrains the choices you are likely to make. If copyright law is a bargain between authors and the public, then we might ask what the public is getting from the bargain. If copyright law is about a balance between owners' control of the exploitation of their works and the robust health of the public domain, one might ask whether the system strikes the appropriate balance. You can see how, at least in some quarters, this talk about bargains and balance might make trouble. Beginning in the late 1970s and early 1980s, advocates of copyright owners began to come up with different descriptions of the nature of copyright, with an eye to enabling copyright owners to capture a greater share of the value embodied in copyright-protected works.
In the last thirty years, the idea of a bargain has gradually been replaced by a model drawn from the economic analysis of law, which characterizes copyright as a system of incentives. Today, this is the standard economic model of copyright law, whereby copyright provides an economic incentive for the creation and distribution of original works of authorship. The model derives a lot of its power from its simplicity: it posits a direct relationship between the extent of copyright protection and the amount of authorship produced and distributed-any increase in the scope or subject matter or duration of copyright will cause an increase in authorship; any reduction will cause a reduction.
The economic analysis model focuses on the effect greater or lesser copyright rights might have on incentives to create and exploit new works. It doesn't bother about stuff like balance or bargains except as they might affect the incentive structure for creating and exploiting new works. To justify copyright limitations, like fair use, under this model, you need to argue that authors and publishers need them in order to create new works of authorship, rather than, say, because that's part of the public's share of the copyright bargain. The model is not rooted in compensation, and so it doesn't ask how broad a copyright would be appropriate or fair; instead it inquires whether broader, longer, or stronger copyright protection would be likely to lead to the production of more works of authorship.
The weakness in this model is that more and stronger and longer copyright protection will always, at the margin, cause more authors to create more works-that's how this sort of linear model operates. If we forget that the model is just a useful thought tool, and persuade ourselves that it straightforwardly describes the real world, then we're trapped in a construct in which there's no good reason why copyrights shouldn't cover everything and last forever.
Lately, that's what seems to have happened. Copyright legislation has recently been a one-way ratchet, and it's hard to argue that that's bad within the confines of the conventional way of thinking about copyright. In the past several years we've seen a further evolution. Copyright today is less about incentives or compensation than it is about control. What ended up persuading lawmakers to adopt that model was the conversion of copyright into a trade issue: The content industries, copyright owners argued, were among the few in which the United States had a favorable balance of trade. Instead of focusing on American citizens who engaged in unlicensed uses of copyrighted works (many of them legal under U.S. law), they drew Congress's attention to people and businesses in other countries who engaged in similar uses. The United States should make it a top priority, they argued, to beef up domestic copyright law at home, and thus ensure that people in other countries paid for any use of copyrighted works abroad. U.S. copyright law does not apply beyond U.S. borders, but supporters of expanded copyright protection argued that by enacting stronger copyright laws, Congress would set a good example for our trading partners, who could then be persuaded to do the same. Proponents of enhanced protection changed the story of copyright from a story about authors and the public collaborating on a bargain to promote the progress of learning, into a story about Americans trying to protect their property from foreigners trying to steal it.
That story sold. It offered an illusion that, simply by increasing the scope and strength and duration of U.S. copyright protection, Congress could generate new wealth for America without detriment or even inconvenience to any Americans. That recasting of the copyright story persuaded Congress to "improve" copyright protection and cut back on limitations and exceptions.
The upshot of the change in the way we think about copyright is that the dominant metaphor is no longer that of a bargain between authors and the public. We talk now of copyright as property that the owner is entitled to control-to sell to the public (or refuse to sell) on whatever terms the owner chooses. Copyright has been transformed into the right of a property owner to protect what is rightfully hers. (That allows us to skip right past the question of what it is, exactly, that ought to be rightfully hers.) And the current metaphor is reflected both in recent copyright amendments now on the books and in the debate over what those laws mean and whether they go too far.
One example of this trend is the piecemeal repeal of the so-called first-sale doctrine, which historically permitted the purchaser of a copy of a copyrighted work to sell, loan, lease, or display the copy without the copyright owner's permission, and is the reason why public libraries, video rental stores, and art galleries are not illegal. The first sale doctrine enhanced public access to copyrighted works that some were unable to purchase. Because the first sale doctrine applies only to copies of a copyrighted work, it became increasingly irrelevant in a world in which vast numbers of works were disseminated to the public through media such as television and radio, which involved no transfer of copies. Copyright owners who did distribute copies of their works, however, lobbied for the first sale doctrine's repeal. Congress yielded to the entreaties of the recording industry to limit the first sale doctrine as it applied to records, cassette tapes, and compact discs in 1984, and enacted an amendment that made commercial record rental (but not loan or resale) illegal. After the computer software industry's attempts to evade the operation of the first sale doctrine-by claiming that their distribution of software products involved licenses rather than sales-received an unenthusiastic reception in court, Congress partially repealed the first sale doctrine as it applied to computer programs. Bills to repeal the first sale doctrine for audio/visual works were introduced in Congress, but never accumulated enough support to be enacted. The actual bites these laws took out of the first sale doctrine were small ones, but in the process, the principle that the doctrine represents has been diminished.
If we no longer insist that people who own legitimate copies of works be permitted to do what they please with them, that presents an opportunity to attack a huge realm of unauthorized but not illegal use. If copyright owners can impose conditions on the act of gaining access, and back those conditions up with either technological devices, or legal prohibitions, or both, then copyright owners can license access to and use of their works on a continuing basis. Technological fences, such as passwords or encryption, offer some measure of control, and enhanced opportunities to extract value from the use of a work. The owner of the copyright in money management software, for example, could design the software to require purchasers of copies to authorize a small credit card charge each time they sought to run the program. The owner of the copyright in recorded music could release the recording in a scrambled format, and rent access to descramblers by the day. Technological controls, though, are vulnerable to technological evasion, which is where the part about legal controls comes in.
When copyright owners demanded the legal tools to restrict owners of legitimate copies of works from gaining access to them, Congress was receptive. Copyright owner interests argued that, in a digital age, anyone with access to their works could commit massive violations of their copyrights with a single keystroke by transmitting unauthorized copies all over the Internet. In order for their rights to mean anything, copyright owners insisted, they were entitled to have control over access to their works-not merely initial access, but continuing control over every subsequent act of gaining access to the content of a work. Thus, to protect their property rights, the law needed to be amended to prohibit individuals from gaining unauthorized access to copyrighted works.
Augmenting copyright law with legally enforceable access control could completely annul the first sale doctrine. More fundamentally, enforceable access control has the potential to redesign the copyright landscape completely. The hallmark of legal rights is that they can be carefully calibrated. Copyright law can give authors control over the initial distribution of a copy of a work, without permitting the author to exercise downstream control over who gets to see it. Copyright law can give authors control over the use of the words and pictures in their books without giving them rights to restrict the ideas and facts those words and pictures express. It can give them the ability to collect money for the preface and notes they add to a collection of Shakespeare's plays without allowing them to assert any rights in the text of those plays. It can permit them to control reproductions of their works without giving them the power to restrict consumption of their works. Leaving eye-tracks on a page has never been deemed to be copyright infringement.
Excerpted from Originality, Imitation, And Plagiarism Copyright © 2008 by University of Michigan . Excerpted by permission.
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