The Copyright Conundrum

The rules of copyright will have to change as technology like the Internet makes it easier to access and copy intellectual property.

by / June 30, 1997
Copyright has a long tradition in American and English law. Today, however, cultural, technological, political and economic changes are stretching both the definition and scope of copyright in ways that can fundamentally change its meaning and destroy traditional notions associated with the term. The potential impact of these changes for governments -- both as regulators of copyright laws and purveyors of information -- are substantial.

The rise of copyright is associated with a key advance in information technology: the development of printing presses. As detailed by Lisa Jardine in Worldly Goods, a recent history of the Renaissance, the development of the printing press brought with it a rush to publish and sell heretofore rare books available only in monasteries and a few private collections. Scholars also began translating classical works into vernacular, or developing their own commentaries on classical books, which were rushed into print by continental and English publishers.

While the development of the printing press was a technological leap over hand-printed books, the costs of production were substantial, since each page required laborious typesetting, papermaking and printing. In order to protect their investments, publishers sought a monopoly to publish certain works through national governments. Governments were also interested in controlling printing within their boundaries in order to ban heretical works. In England, the control of printed works began in earnest with a charter granted in 1557 to the Stationers' Company, which kept records of books acceptable to royal censors and granted exclusive publishing rights to certain printers.

That charter lapsed in 1695, and was replaced by the Statute of Anne in 1710. The new legislation placed time limits on copyrights, removed the requirement of censorship prior to publication and for the first time recognized the rights of authors to copyright, rather than strictly upholding the economic rights of publishers. In effect, the Statute of Anne gave authors a time-limited monopoly over their intellectual property. This limited monopoly over works helped authors receive payment for their work and provided an incentive to publishers to seek out new authors, since time limits required the identification of new works to publish.

The American colonies followed the English tradition closely. Article 1 of the Constitution authorized Congress to establish copyrights "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." The first copyright act was passed in 1790, but was targeted more at protecting American economic interests than the universal monopoly of authors, since it protected only American authors published by American publishers. It was not until 1891 -- when the economic advantages of protecting American writers and publishers in the international market outweighed the advantages of freely pirating European authors like Dickens -- did Congress enact an international copyright act.

In 1909 and again in 1976, Congress enacted copyright legislation to cover the development of new information media such as motion picture, radio, television and other technologies. The Copyright Act of 1976 brought the United States more closely in line with the Berne Convention, a copyright agreement established among European publishers in 1886, but which was resisted for a century by American media companies for economic reasons. The 1976 act also expanded authors' copyright monopolies over the length of their lives plus 50 years and codified for the first time the concept of fair use in American law.

The concept of fair use is critical both to the notion of copyright and the battles over copyright in an electronic, networked environment. In general, it seeks to balance an author's -- and by extension a publisher's -- monopoly right over a work against society's need to promote the exchange and diffusion of knowledge and foster advances in science and the arts. While fair use in American jurisprudence harks back to 1841 (Folsom vs. March), the 1976 Copyright Act attempted to establish general ground rules under which a work or portions of a work could be copied free of charge. It applied four factors by which courts should judge whether use of an author's work by others could be considered fair use:

1) the purpose and character of use, such as whether copying was for commercial or nonprofit educational reasons;

2) the nature of the copyrighted work, such as whether the work is freely available for sale or out of print, and whether it can be easily referenced without copying the whole body, as in the case of a painting;

3) the amount and substantiality used, which seeks to determine how much of the core value of the work was affected by copying; and

4) the effect of copying on the subsequent market value of the work.

In general, recent scholars and court decisions have given greatest weight to the fourth factor, the work's market value. However, even with greater weight given to market value, decisions about what constitutes fair use are by no means straightforward and come under greater pressure as our ability to copy and quickly transfer information becomes easier.

Recent rulings by the Supreme Court and others have not clarified the ground rules of fair use. This makes it difficult to set the boundaries of fair use in new technological environments like the Internet, where the purpose of use, availability, substantiality and market value of information are all subject to redefinition and interpretation depending on the user.

Intellectual property concepts like copyright, trademarks and fair use are national, rather than international, in scope. While certain notions have gained wide acceptance through such vehicles as the Berne Convention, other notions are unevenly distributed. For instance, fair use is a concept common to the United Kingdom and the United States, but not found in French and German copyright law. Similarly, moral rights (which allow an author to object to a work's distortion or mutilation) are common to the Berne Convention, but until recently, were specifically deleted from American laws.

These variations in meaning and intent of intellectual property protection have led to a concerted attempt, particularly on the part of the United States, to modify international agreements to protect the economic interests of American companies in an electronic environment. However, these attempts have had limited success at venues such as the World Intellectual Property Organization (WIPO), which met in January 1997. WIPO tabled many American recommendations for further international copyright restrictions.

A more fundamental boundary issue also remains. Copyright and other intellectual property agreements define how much and what type of information flows within a country's boundaries. Establishment on an international level of any nation's notion of what should be subject to copyright monopolies impinges on national sovereignty and runs into problems balancing between individual property (copyright) and public good.

A further complication in the debate over copyrights is what constitutes "Science and useful Arts," as enumerated in the Constitution.

While it is likely that the Founding Fathers would consider many of today's works of art, literature and science appropriate for copyright protection, some critics argue that the mass marketing of objects which derive from "useful art" takes the copyright concept too far.

For instance, while the original Mickey Mouse cartoon may be considered a work of art, at what point do derivative products lose their "transformative" aspect and become mere commodities, better protected under trademark regulations, which are less international in nature?

Similarly, what happens when a copyrighted image becomes part of the cultural lexicon? If such a transformation occurs, should the artwork be considered in the public domain and no longer subject to monopoly protection? Does continued copyright protection constitute a form of cultural censorship by the copyright holder? That might be addressed in an electronic environment -- where cultural diffusion is much quicker -- by shortening the time under which copyright protections apply.

Central to discussions of copyright in the United States are libraries and the role they play as public disseminators of information. Traditionally, libraries have been viewed as locations where citizens who cannot purchase their own copies of copyrighted works can borrow or copy them, with fair use protections. Similarly, libraries have acted as repositories for hard-to-find and limited distribution items, for which the market is not large enough for general distribution. Libraries have allowed lower income individuals to share in society's general knowledge and allowed for better distribution of information across society.

The twin developments of the Internet as a low-cost means of information dissemination and of various schemes to charge for Web-based information represent competing threats to libraries. If hard-to-find information is placed on the Web for general distribution, the role of libraries as depositories is diminished. On the other hand, if schemes are developed for online charging for information access, libraries could become no more than marketing agents for copyright holders, rather than vehicles for general cultural dissemination.

The Internet muddies the waters of the market value of information. Traditionally, the value of information was the price for which a book, record, tape, painting, or other work was sold to a limited set of customers. The price included the cost of producing, distributing and marketing the physical work, any publisher's profit, and the value of the work as intellectual property (expressed as the author's royalties) divided by the projected number of copies sold. If customers purchased a book, for instance, the price would reflect all the components of value. If they copied the book on a Xerox machine, they often paid reproduction costs and the costs for republication rights (often in excess of the original price of the book).

Electronic distribution of creative works significantly lowers the production, marketing and distribution costs while greatly expanding the potential market. Establishing fair pricing models for electronically-distributed copyrighted work will require much experimentation.

At least in the United States, the market models will have to include the concept of promoting societal good, intrinsic in fair use. In fact, some more radical proponents of fair use argue that the combination of decreased production costs coupled with an expanded market might make the marginal value of any electronically produced copy almost negligible. That may necessitate finding other ways of paying authors for their intellectual property.

Copyright and intellectual property issues in the Information Age are not likely to disappear anytime soon, notwithstanding intentions of the Clinton administration or others to the contrary. Some observers advocate separate copyright, trademark, decency or other laws for cyberspace. Others maintain the sovereign rights of individual nations or of the public good in the free flow of information, while still others maintain the rights of individual and corporate property are paramount in this arena. No party is likely to achieve all their goals, and no final resolution can be expected soon.

Terrence Maxwell, Ph.D., is executive director of the New York State Forum for Information Resource Management, and editor of the Forum's magazine, "Open Forum." Internet: . E-mail: