Sunday, August 23, 2009

Copyright scorecard--what have we gotten in exchange for giving up our freedom?

Over the past 50 years, the copyright monopolists have gotten almost everything they asked for in expansions of copyright:

1) The copyright act of 1976, which greatly expanded U.S. copyright's scope and duration both.
2) The elimination of the renewal requirement in the early 1990s.
3) A levy on all blank digital audio tapes.
4) An open-ended anti-bootlegging provision forbidding trade in unauthorized recordings of public musical and dramatic performances.
5) The Copyright Term Extension Act of 1998, which extended pre-1978 copyright from 75 years to a whopping 95 years from publication.
6) The Digital Millennium Copyright Act of 1998, which added additional barriers, in the form of its "device" and "circumvention" provisions, to the public's use of digital works.

For this great give-away to the robber-barons, the public has gotten very little in exchange:

1) The Audio Home Recording Act, with its extremely stingy wording. It does not state that the public has freedom to make home recordings, only that "no action shall be brought" against someone who does.
2) The narrow "homestyle exemption" to public performance licensing requirements.
3) As part of the Copyright Term Extension Act, some additional narrow leeway in the exemptions from public performance licensing requirements for small clubs and restaurants. The enemies of this provision, who were supporters of the term extension, have obtained, or at least rooted for, a World Trade Organization ruling against the expanded licensing exemptions, possibly as part of a back-door strategy for their repeal.
4) As part of the Digital Millennium Copyright Act, some safe-harbor provisions for internet service providers and a few technical provisions applying to software copyright.
5) Replacement of the state and common-law right of first publication (RFP) and anti-bootlegging right in phonograms with a uniform federal copyright in unpublished works. Note that there is less here than meets the eye. In particular, those who claim that this is a replacement of a "perpetual common-law copyright" with a limited copyright are not telling the truth. The common-law right was only a right of first publication, not a "common law copyright". And it was not "perpetual", merely indefinite.

Nor can it be said that we have gotten more creative works in exchange for what we have sacrificed. The duration of copyright was increased by 27% by the Copyright Term Extension Act. We should, then, have gotten 27% more new music, films, and books entirely due to the term extension alone. If the major labels and major film studios are producing a quarter again more than they were in 1997, it is not obvious. Even if they are producing more, it is not self-evident that the increase in production is due to the term extension, and the term extension alone.


Crosbie Fitch said...

I have been contending that the RFP must be the natural exclusive right recognised in the US Constitution (and constitutes what I describe as natural intellectual property).

Copyright is the privilege of a monopoly granted later, unconstitutionally - Jefferson even suggested adding such monopolies in literary works to the bill of rights.

Unfortunately, the monopoly is that which publishers most highly prize (being corporations they see no benefit in an individual's natural exclusive right).

So, yes, the bulk of argument out there is rather lacking in integrity. Both the maximalists and the reformists must adopt the same fictions.

The Archivist said...

A levy on all blank digital audio tapes. ... and a levy on blank CD-Rs marketed for music recording. These vary from country to country; see