At yesterday’s copyright briefing for new members and staff of the U.S House of Representatives, six aspects of copyright were discussed: the purpose of the copyright law, copyright term and extension, formalities, statutory damages, fair use and first sale—all in ninety minutes, amazing given the complexity of the topic and the fact that all of the panelists were lawyers (who have a tendency to talk at length). The panel of speakers was ably facilitated by Zach Graves from the R Street Institute (another lawyer!), and each panelist provided remarks with choice tidbits that even a “copyright know it all” like myself could savor—in part due to the fact that I needed to eat something because all of the bag lunches were gone when I arrived.
The first speaker was Mike Godwin, Innovation Policy Director for the R Street Institute, who provided remarks on the purpose of the copyright law. When looking at what we tend to call “the copyright clause” in the U.S. Constitution, Godwin suggested an alternative name—”the progress clause.”
“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…” (U.S. Constitution, Section 8, Clause 8)
It is a helpful way to think about it. Both rights holders and users of creative works progress in some way—monetarily for rights holders, of course, but also progress achieved by sharing and gaining knowledge, by enjoying books or films, by being inspired to create new original and creative works.
Jonathan Band, from the Library Copyright Alliance (LCA) discussed how the extension of the copyright term (from 14 years and one 14 year renewal to life of the author plus 70 years) hinders the creation of new works. As copyrighted works are protected for longer and longer times, more content is prevented from moving to the public domain, providing less material available to freely build on. Extending the term hinders the dissemination of existing knowledge as demonstrated by a chart of books available for purchase on Amazon.
There’s an enormous amount of content that is just not readily available for purchase because incremental extensions of the copyright term also retroactively protected materials that were bound for the public domain. Thus, publishers and other distributors are unable to re-publish these works still under protection. Alas, out of print books.
In addition, there are no longer any requirements to formally demonstrate or seek copyright protection. Because creative works are protected by copyright law at the point of fixation, even a child’s doodle is protected by copyright for life of the child plus 70 years. Lots of protected works are everywhere, and they aren’t going to the public domain any time soon.
Sherwin Siy, vice president for Legal Affairs for Public Knowledge, spoke about the statutory damages available to rights holder in a favorable court decision – $750 to $30,000 per work infringed. In a world where digital copies are made all of the time when using computing technology, an innocent infringer could easily rack up a high penalty if found guilty. Rights holders are more likely to choose statutory damages over actual damages because they don’t have to provide the evidence to demonstrate that actual money was lost due to the infringement.
Rebecca Tushnet, law professor at Georgetown University Law Center, provided examples of services and activities that would not be possible without fair use— search engines, Facebook, fan fiction (check out Homelamb), digitizing one’s CD collection, preservation, reverse engineering, and the list goes on. Tushnet called fair use a “distinctly an American creation” that supports both free markets and free speech.
Siy then spoke about first sale – the exception that enables secondary markets and library lending. First sale allows that once the library has lawfully acquired a copy of a protected work, the library can distribute it to others, furthering the free flow of information. In the digital environment, contracts and non-negotiated license agreements can circumvent library lending. A library cannot loan songs downloaded from iTunes because the license restricts use to “personal, non-commercial only.”
I almost always enjoy reading, hearing and talking about copyright, and I hope the copyright newbies packed in the standing room only meeting room in the Rayburn Building gained new understanding—there is a lot more to copyright than piracy. Copyright is a good thing. It is about progress, for all.