THE PURPOSE OF COPYRIGHT LAW
This is the first in a series of videos that I will be making over the next few weeks discussing copyright law. What is the purpose of copyright law? We must turn to Article 1 Section 8 of the U.S. Constitution to find out:
http://www.law.cornell.edu/constitution/constitution.articlei.html#section8
"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;"
Note that when the Constitution was written, the word "science" was interpreted much more broadly than it is today. In the 1700's, "science" meant generalized knowledge and learning. Thus, the purpose of copyright law as spelled out by the Constitution is to promote the progress of knowledge and learning—not to enrich the creators of new works. Copyright law attempts to achieve these ends by allowing Creators to profit by granting them a monopoly over their works. Copyright law gives authors an incentive to produce more works by granting them exclusive rights in what they produce. However, this protection of the interests of the author is only the MEANS by which the ultimate ENDS of advancing knowledge is promoted. THE ULTIMATE GOAL OF COPYRIGHT LAW IS NOT THE PROTECTION OF THE CREATOR'S INTEREST IN HER WORKS!
See Fogerty v. Fantasy, Inc.
http://www.law.cornell.edu/supct/html/92-1750.ZO.html
In Fogerty v. Fantasy, the Supreme Court approvingly cited Twentieth Century Music Corp. v. Aiken:
"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. 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."
The Court also cited Feist Publications, Inc. v. Rural Telephone Service:
"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."
The first Copyright Act (of 1790) in the United States granted only the exclusive right to print, publish, and vend a copyrighted work, and that right was granted for a maximum of 28 years.
See: http://www.earlyamerica.com/earlyamerica/firsts/copyright/
Under the current copyright law, copyright owners also have these rights, plus the right to control the public performances of their works and to control the making of adaptations of their work. And the term of that control has been extended from a maximum of 28 years to 70 years after the death of the author.
Why has copyright law been extended far expanded what was imagined by our Founding Fathers? It was expanded at the behest of major copyright-owning industries to protect their cash cows. The publishing industry argued that the greater the monopoly and the protection granted to the authors of copyrighted works, the more incentive they will have to create new works.
But this overlooks two factors:
1) Almost all creators build upon the work of others. If copyright law builds too high an obstacle to the use of previous works it will stifle creativity and prevent the creation of new works.
2) The claim that the greater the monopoly granted to the author, the more they will create is not necessarily true. Current copyright law gives the creator a monopoly on his work until 70 years after his death. Does anyone believe that Stephen King would have written fewer books if copyright law only granted creators a monopoly for 28 years?
MUST READING: The Purpose of Copyright
by Lydia Pallas Loren, Asssociate Professor of Law at Lewis & Clark College
http://www.open-spaces.com/article-v2n1-loren.php
Professor Loren writes:
"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."
Loren notes that copyright law has been perverted into a tool for censorship. She cited the case of David Stowe, a professor at Michigan State, who wanted to show how sexism and racism pervaded the big band culture of the 1940s. He wanted to show this by using various cartoons in Downbeat magazine. But the owners of Downbeat refused to grant him permission to use these cartoons at any price because it would make them look bad. Stowe did not want to bear the expense of litigation or run the risk of being found guilty of infringing, so he did not use the cartoons in his study. His academic research was not as rich or complete as it would have been had copyright law not been turned into a tool for censorship.
Censorship can occur even under the doctrine of Fair Use, as the Stowe case demonstrates because some may self-censor rather than run the risk of having to defend themselves in potentially costly legislation. But Professor Loren notes that the situation was worsened under the Digital Millenium Copyright Act. She wrote:
"The Digital Millennium Copyright Act. . . 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. "
Tags: copyright law fair use DMCA founding fathers U.S. Constitution
