Value of the Public Domain
The Purpose of Copyright
Lydia Pallas Loren
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The Purpose of Copyright
by Lydia Pallas Loren
Associate Professor of Law, Northwestern School of Law of Lewis & Clark College
Open Spaces Quarterly, February 7, 2000
The newspaper you read this morning, the television show you watched last night, the movie you are going to see this weekend, the computer software you use to prepare your letters or send your email, the music you listen to in the car on your way to work: they are all copyrighted. Copyright permeates our lives and yet, despite its impact on our lives, relatively few people, including lawyers, have sufficient knowledge or understanding of what copyright is. And far too many people, including lawyers, have major misconceptions concerning copyright. These misconceptions are causing a dangerous shift in copyright protection, a shift that threatens the advancement of knowledge and learning in this country. This shift that we are experiencing in copyright law reflects a move away from viewing copyright as a monopoly that the public is willing to tolerate in order to encourage innovation and creation of new works to viewing copyright as a significant asset to this country's economy. The most recent example of this shift is the new Digital Millennium Copyright Act, sign by the President on October 28, 1998.
Understanding the root cause and the dangers of this shift requires exposing the most fundamental and most common misconception concerning the underlying purpose of the monopoly granted by our copyright law. The primary purpose of copyright is not, as many people believe, to protect authors against those who would steal the fruits of their labor. However, this misconception, repeated so often that it has become accepted among the public as true, poses serious dangers to the core purpose that copyright law is designed to serve.
The core purpose of copyright law is not difficult to find; it is stated expressly in the Constitution. Article I, section 8, clause 8 of the United States Constitution provides that Congress shall have the 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."
This clause is the constitutional basis for the Copyright Act and also the Patent Act. It is the only clause in the grant of powers to Congress that has a stated purpose. Section 8 of Article I gives Congress the power to take such actions as declare war, coin money, raise and support Armies, and provide and maintain a navy. Yet none of these other grants say for what purpose the power is to be exercised. The copyright clause, in contrast, is very specific about its purpose. The exclusive rights that are granted to authors are "to promote the Progress of Science and useful Arts." To fully appreciate this clause, one must understand "science" in its eighteenth century meaning. At the time of the writing of the Constitution "science" denoted, broadly, knowledge and learning. So the core purpose of copyright law, as expressly stated in the Constitution is: to promote the progress of knowledge and learning.
Why did the founding fathers feel the need to state the purpose of copyright and patent, expressly, when none of the other enumerated powers has an express purpose stated? One probable reason lies in the history of the monopoly of the copyright.
A Quick Trip Back in History
When the printing press was introduced into England in 1476, the need for protection of printed works was inevitable. The probable genesis of copyright law was the crown's grant of a letters patent, the printing patent, giving one entity a monopoly on the printing of certain works. Of course, a fee for that monopoly was paid to the crown, thus making the letters patent a source of revenue for the crown.
If the crown could grant these patents, the guild of booksellers, called the Stationers' Company, found that they could agree among themselves to allow a monopoly on works. The members of the Stationers' Company were almost all of the printers in England; if they agreed to respect one another's claims to particular works it was a de facto monopoly. Thus, the idea of a "copyright" started out as a member of the guild registering the title of the manuscript or "copy" with the guild. Registering a copy with the guild gave that printer the exclusive right in the copy. Thus copyright as first used was a noun - the exclusive right in the copy, whereas today many think of copyright more as a verb - the exclusive right to copy.
A bookseller's registration of the copy with the guild gave the bookseller the exclusive right to print and vend the work as a matter of private law, agreed to by members of the guild. The problem with private law, however, is that it can only be enforced among those who have agreed to it. The bookseller's private law copyright was no exception. It was enforceable only among the members of the Stationers' Company. Because of this limitation, the booksellers often sought public affirmation or codification of their private law.
In 1557, the desires of the booksellers and the desires of the crown coincided. The crown perceived the need to gain greater control over "the dangerous possibilities of the printed word" and so granted a royal charter to the Stationers' Company that limited most printing to only members of the company. This charter also empowered the company to search out and destroy "unlawful" books, which gave the guild the public enforcement mechanism for its private law. If a nonmember was printing a work that had been registered with the company by a member, the nonmember could now be stopped. It also meant that if a work which was disagreeable to the crown was being published, it too could be stopped. This arrangement provided the crown with added policemen to enforce its goal to control printed works. Censorship was born.
The power of censorship and press control through the Stationers' Company copyright lasted for over 150 years. Finally, in the early 1700s parliament refused to continue to support the monopoly that the stationers had enjoyed for centuries and the power of censorship that the crown had enjoyed along with it.
Copyright in the United States
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. They therefore expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.
With the stated goal firmly fixed in the Constitution, the task of accomplishing that goal was given to Congress. The means for achieving that goal are also stated in the Constitution. The promotion of the progress of knowledge and learning was to be accomplished by "securing for limited times to Authors .... the exclusive Right to their ... Writings." The monopoly of the copyright would be tolerated, but only as a means to an end. The Constitution adopts a Field of Dreams approach to the creation of works of authorship - the idea that "if you protect it, they will come." By establishing this marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas. As the Supreme Court has recognized: "The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."
In fulfilling the constitutionally mandated goal of copyright law, Congress has had to ask, as one early legislative report did, two questions: "First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public?" As Judge Walker of the Second Circuit recently summarized: "The copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation." The founding fathers wanted copyright to be a mechanism by which our democracy would grow and flourish - a way in which our storehouse of knowledge is stocked.
The Dark Side of Copyright Today
Modern-day copyright harbors a dark side. The misunderstanding held by many who believe that the primary purpose of copyright law is to protect authors against those who would pilfer the author's work threatens to upset the delicate equilibrium in copyright law. This misunderstanding obviously works to the benefit of the content owning industries, such as the publishing industry, the music and motion picture industries, and the computer software industry. This fundamental misunderstanding is perpetuated by the stern FBI warnings at the beginning of video tapes, by overly broad assertions of the rights in the copyright notices, and by the general lack of public discourse about the balance required in copyright law if copyright is to fulfill its constitutionally mandated goal of promoting knowledge and learning.
This dark side, this pervasive misconception, is turning copyright into what our founding fathers tried to guard against - a tool for censorship and monopolistic oppression. This may sound extreme to some, but consider the beginnings of copyright in this country. The first Copyright Act in the United States granted only the exclusive right only to print, publish, and vend a copyrighted work, and it lasted for only fourteen years, with the possibility of a second fourteen-year term. No exclusive rights to perform the work or to create an adaptation of the work were granted, only the right to print, publish, and vend for, at most, twenty-eight years.
Under current copyright law, not only do copyright owners have the right to publish and distribute the work, but copyright owners also have the right to control the public performance of a work, to control the making of adaptations of the work, and to control the reproduction of the work independent of what is done with that new copy. And, as a result of the Copyright Term Extension Act passed in October, 1998, now the basic term of copyright lasts for the life of the author plus seventy years. This new term is a far cry from the original maximum term of twenty-eight years, and results in a much larger monopoly and a much longer time that the public must wait for any given work to enter the public domain.
Congress also has created additional criminal sanctions for copyright infringement with the passage in December 1997 of the No Electronic Theft or "NET" Act. Under this new legislation, an individual who is engaging in willful infringement can be held criminally liable even if that person is not engaging in the infringement for profit or commercial advantage. For the previous century a profit motive had always been the touchstone of criminal infringement. Now, if, over the course of any 180-day period, someone willfully infringes copyright by reproducing or distributing one or more copies of one or more works which have a retail value over $1000, they can be found criminally liable.
Most recently, in October 1998, the President signed the Digital Millennium Copyright Act. Among other additions to the Copyright Act, the Digital Millennium Copyright Act provides both civil and criminal legal sanctions for the circumvention of technological measures employed by copyright owners to control access to their works. Except in narrow and specifically prescribed circumstances, a violation of federal law occurs regardless of why such circumvention is undertaken. This legislation seriously impedes the access to copyrighted works and the non-copyrighted elements of those works, thereby threatening the ultimate aim of copyright, the promotion of the progress of knowledge and learning. The Digital Millennium Copyright Act also permits copyright owners to force internet service providers to remove material from the internet and the world wide web when the copyright owner believes the material is infringing.
The Importance of Balance in Copyright Law
The ever-expanding scope of rights granted to copyright owners and lengthy duration of this statutory monopoly leads necessarily to an added importance of the rights granted to users of copyrighted works during the term of copyright if copyright law is to remain consistent with its constitutionally mandated goal. While the rights granted to copyright owners are broad, those rights are expressly made subject to rights of the users of copyrighted works which are detailed in 14 separate sections of the Copyright Act.
The most important of the rights of users is that of fair use. Yet fair use is the least specifically defined and least understood of users' rights. The Copyright Act provides that certain kinds of uses of copyrighted works, called fair uses, are not an infringement of copyright, despite the fact that the use may involve copying, adapting, performing, or displaying the copyrighted work. If a particular type of an activity is a fair use, then the copyright owner of the work has no right to demand that the use first be authorized by the copyright owner or to demand the payment of a fee for engaging in that type of use. The Act lists four non-exclusive factors for courts to consider in determining whether any particular use is a fair use and thus not an infringement of copyright. (The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.) A court is required to examine these factors in adjudicating an assertion of infringement by the copyright owner on the one hand and the assertion of fair use by the alleged infringer on the other.
Of the four factors to be considered in a fair use analysis, two concern money, and, in the fair use analysis of most courts, the two non-monetary factors are often not that relevant to the outcome of the case. But this focus on money, coupled with the general misconception that copyright's primary purpose is to protect authors against those who would pilfer their work, threatens further detriment to achieving the constitutionally mandated goal of copyright. If the use at issue is something for which the copyright owner desires to charge a fee and is able to show the court a simple and efficient means of paying the fee, the copyright owner can often defeat an assertion of fair use. This results in a situation that permits the copyright owner to narrow the rights of fair use by providing a licensing scheme for the types of uses that should not require permission from the copyright owner. If copyright is to continue to be the engine of the progress of knowledge and learning in this country, Congress and the courts should not permit the right of fair use to be limited in this manner.
An argument in favor of more rights for users of copyrighted works and correspondingly fewer rights for copyright owners, often is countered by the copyright owning industries with an argument based on an economic analysis of copyright law. The argument goes like this: the greater the monopoly you permit, the greater are the financial rewards and therefore the greater the incentive to create. Thus, with broader monopoly rights, greater numbers of works are created and disseminated resulting in greater knowledge. To this there are, at least, three responses.
First, the conclusion that a greater numbers of works will be created when there are greater monopolies fails to account for the negative implications of broad monopolies on creative expression. When the scope of the copyright monopoly becomes too great, the creation of new works is, itself, hampered. After all, each creator of a new work builds in some way on the works of the past. With overly broad monopolies, new works that build upon old are not created, creativity is stifled, and thus the net value to society is lessened. We have, what Judge Walker referred to a "monopolistic stagnation."
Related to this first response is another concerning the conclusion that greater monopolies will result in greater levels of creativity. Creative individuals produce new works for a variety of reasons. The kinds of increases in monopoly rights of copyright owners empirically have not been shown to increase the production of new works. It seems unlikely that a creative individual, in determining how to spend her limited time and resources thinks, "ah, now that my copyright lasts for seventy years after my death I will invest more in creating more works." The greater scope of these monopolies instead benefits large corporate owners of significant numbers of copyrights. The majority of the copyrights are obtained by assignment from the original creators of the copyrighted works, after the works have been created. The amount paid for the assignment of the copyright depends, in part, on the projected profitability of the exploitation of the work, but it has not been shown that greater monopolies necessarily result in a net gain of new creative works.
Finally, even if greater monopolies would result in greater numbers of new works being created, the conclusion that greater knowledge will result also is flawed. When the scope of the copyright monopoly becomes too great, there are uses which would result in a net gain to society, but the benefits of those uses are dispersed among all members of society. Because of this dispersion of benefit, it is extremely difficult for the full value of that particular use to be internalized in any bargained-for exchange between the copyright owner and the would be user of the copyrighted work. If the scope of the copyright owner's monopoly is too broad, then those beneficial uses will not occur. The kinds of uses which have those disperse external benefits are the uses that, if permitted, would in fact further the goal of copyright, to promote the progress of knowledge and learning.
Copyright interpreted not with a focus on the ultimate aim of the progress of knowledge and learning, but instead with a focus on the monetary rights of copyright owners, results in uses that would be a net gain to society not taking place. The recent paradigm shift reflects a short term view of the copyright monopoly. If the monopolies granted to copyright owners are larger, then obviously the content owning industry can generate more revenue. This increase in revenue results in a larger gross national product, a smaller trade deficit, and greater employment. However, the threat of monopolistic stagnation looms very real and the ability of the content owning industry to charge monopolistic prices increases as competitive works are cabined in by broader monopolies granted to everything from literature and motion pictures to computer software.
Copyright and Censorship
Copyright interpreted in light of the fundamental misconception of copyright and a focus on monetary issues also poses a serious threat of censorship, private censorship, enforced by our federal courts through assertions of copyright infringement and enforced by internet service providers who will remove material from cyberspace to appease a copyright owner and maintain a statutory exemption from copyright infringement liability. To bring this theoretical discussion down to concrete examples, the stories of two cases, one litigated and one not litigated, are illuminating.
The first is the story of the litigated case concerning a parody version of Roy Orbison's song "Oh, Pretty Woman" recorded and distributed by the rap group 2 Live Crew. Before recording its parody, 2 Live Crew sought authorization to use the song from the copyright owners of Pretty Woman, but their request was rejected. 2 Live Crew went ahead and recorded their parody anyway and, as a result, found themselves sued for copyright infringement. 2 Live Crew asserted the defense of fair use and the district court agreed and dismissed the lawsuit. The district court held that the parodic nature of 2 Live Crew's song was meant as commentary and criticism of the original, and thus was a fair use and not an infringement of the copyright. 2 Live Crew was not as fortunate in front of the court of appeals, which reversed the finding of fair use, finding that the harm to the copyright owner's market for the copyrighted work outweighed any parodic purpose that might be found in 2 Live Crew's song. 2 Live Crew, however, had the financial wherewithal to file a petition for certiarori with the Supreme Court, and fortunately for 2 Live Crew the Supreme Court was willing to review their case.
In its opinion, the Supreme Court emphasized that parody can provide social benefit by shedding light on an earlier work, and in the process, creating a new one. The Supreme Court recognized that "2 Live Crew's song 'was clearly intended to ridicule the white-bred original' and 'reminds us that sexual congress with nameless streetwalkers is not necessarily without its consequences. The singers . . . have the same thing on their minds as did the lonely man with the nasal voice, but there is no hint of wine and roses.'" Another way to understand the Court's ruling is that the Court determined that commentary and criticism in our society has disperse external benefits that must be taken into account when determining fair use. The value to society of permitting people to comment on other people's work through parody has general benefit in society that is spread among all people. That aspect of the value of parody cannot be captured by the creator of the parody to assist in paying a license fee to the copyright owner in order to obtain permission to use the work that is being parodied. The general value of permitting parody is a disperse external benefit that cannot be internalized in any bargained-for exchange.
Someone aware of this case prior to reading this article, unless extremely knowledgeable in this area, would probably think the Supreme Court ruled 2 Live Crew's parody constituted fair use. While the Supreme Court did reverse the court of appeals ruling that 2 Live Crew's song was infringement, the Supreme Court did not rule that the parody was fair use. The Court remanded for further proceedings. And, on remand, the district court was directed to consider the possible market harm for the non-parody rap versions of Pretty Woman that might be licensed by the copyright owner. There were no proceedings on remand; rather, the case settled with 2 Live Crew entering into a license with the copyright owners of the song for future sales of their parody.
While the Supreme Court in the 2 Live Crew case repeatedly warned against overemphasizing monetary issues in the context of a fair use analysis, lower courts have continued to focus on harm not only to the market for the original, but also on harm to markets for other uses of the work that the copyright owner might be interested in licensing. These courts focus on protecting the copyright owners in various, yet to be exploited markets. These courts are focusing on the misconception of copyright - that it is intended to protect authors from those who would pilfer their works.
2 Live Crew was fortunate. The group had the resources to fight all the way to the Supreme Court that repeatedly emphasized the importance of the promotion of the progress of science and the useful arts as the ultimate aim of copyright. But, in the end, even for 2 Live Crew's parody, a license from the copyright owner was the result. The need for a license, of course, grants to the copyright owner the power to deny that license which is the power to censor certain kinds of speech.
If doubts remain about the validity of the argument that copyright is increasingly being used as a tool of censorship dangerously threatening to impede rather than promote knowledge and learning, a second story should be considered. This story provides an example of a loss to the general storehouse of knowledge, sought to be stocked, not locked, by copyright.
David Stowe, a professor in the Department of American Thought and Language at Michigan State University, sought to show the conflicted cultural politics of big band jazz in the 1940's. Specifically, he wanted to show the sexism and racism that was pervasive in the big band culture of that time through the use of various cartoons that had appeared in Down Beat, a jazz monthly magazine. Down Beat normally grants permission for use of excerpts from its magazines and doesn't even charge a fee. However, in Professor Stowe's case, upon reviewing the content of the material, the magazine declined to grant permission, at any price. The reason? The drawings made the magazine "look bad." Unlike 2 Live Crew, for Professor Stowe the risk of going ahead and using that material and having to litigate his rights, with the risk also of being found to be an infringer, were too high. Society lost out on an enhanced scholarly work because a copyright owner was able to censor Professor Stowe's work.
Stories like those of Professor Stowe abound in academic circles. The amorphous application of the four fair use factors and their unbalanced emphasis on money, given that the pervasive misconception of copyright's purpose is shared by some judges, makes reliance on the doctrine of fair use unsavory to those who we would most like to see use it - scholars writing works to benefit the general public storehouse of knowledge. The risk of a suit are high, the costs of litigation enormous, and the risk of being found to be an infringer not negligible. All of this leads to a power of censorship in the hands of copyright owners.
This power of censorship at the hands of copyright owners has recently entered the realm of digital technology, and again the copyright owners have been given a very large stick with which to convince others to assist them in censoring potentially critical works. Under the recent Digital Millennium Copyright Act, copyright owners are given a very effective tool for censoring speech in cyberspace. Copyright owners can, in effect, force internet service providers to remove material from the internet and the world wide web posted by anyone simply by sending the internet service provider that is storing the material a written notice asserting a good faith belief that the material is infringing. If the internet service provider fails to expeditiously remove or disable access to the claimed infringing material, the internet service provider itself can become liable for any infringement that might be found. Clearly internet service providers will err on the side of removing any material claimed to be infringing. But this removal occurs without an independent judgement of whether infringement is in fact occurring. The only judgement is that of the copyright owner. While a counter notification to the service provider from the person who posted the alleged infringing material requires the service provider to replace the disputed material fourteen days later, the copyright owner can stop the reposting merely by filing a court action within those 14 days. Adjudication is not required to keep the material out of the public's reach.
The significance of the ability to censor speech in cyberspace is extremely important. Cyberspace empowers individuals to reach millions of others with their messages without having to rely on expensive and often content-selective publishing entities. Yet in this potentially equalizing forum we now have legal rules in place that permit copyright owners to halt speech merely by asserting a claim of copyright infringement.
The Future of Copyright
I am not advocating an elimination of copyright protection. The protection granted to copyright owners is essential in providing the economic incentive for the creation of works. But in determining the scope of the monopoly rights granted to copyright owners, given the extreme length of the monopoly, we must not lose sight of the true purpose of copyright - to promote the progress of knowledge and learning - and we must all realize that too broad a monopoly will impede rather than promote that progress on which this country was founded.
Initially the base of this country's economy was land; there was, after all, so much of it. Then, the base of the economy became manufacturing, the industrial age. Now, we have begun what is referred to as the information age. The way information-based products are protected is through intellectual property, including copyright. The economic importance of copyright has led to additional rights for copyright owners, longer terms of copyright protection, and legal protection for the technological locks put on works in digital media.
With each request for an expansion of the copyright monopoly, whether an expansion in scope or in length, the question must be asked: will the significant cost to the public of the increased monopoly be outweighed by the additional works that will be created and disseminated as a result of a greater incentive provided by that increase in the scope or duration of the copyright monopoly? In this equation the disperse benefits generally of a greater informed citizenry achieved through limits on the copyright monopoly must be factored in.
The economic importance of copyright will only continue to grow and the contours of the rights of copyright owners and users will continue to change with much debate about the direction that change should take. In all of this debate, however, we should not let a fundamental misconception of the primary purpose of copyright law in this country shape our rules to the detriment of the true constitutional aim of the limited statutory monopoly of the copyright: to promote the progress of knowledge and learning.