The United States Copyright System under Scrutiny

I. Introduction

The traditional copyright regime has fallen out of balance in the analog world and is ill-fitted for an application in the digital world. Although capable of functioning in the analog world, the copyright system, as it stands today, does not serve the purposes for which it is supposed to be useful. It does not provide the economic incentive for the expression and creation of new works. It does not serve the public purpose of enriching the “cultural commons” which is the public domain. More importantly, enacted in an age of print and heavily linked to that medium, the copyright laws are ill-equipped to achieve their supposed purposes in cyberspace and have proved harmful to the creative process and to the public domain.

II. Copyright law has fallen out of balance in the analog world

In its original form, copyright law was limited both in its scope and in its duration. The Copyright Act of 1790 only secured authors the copies of “maps, charts, and books” for a term of fourteen years, renewable for one additional term of fourteen years if the copyright holder was still alive. Within these confines, the granting of “limited” monopolies may well have achieved the purpose of spurring creative performance while ultimately allowing free access to the past cultural heritage by subsequent creators.

Copyright has not, however, remained static. Since the 1990s, Congress has enacted several pieces of legislation which have had the effect of substantially reducing the scope of the public domain through an ever increasing protection of copyright holders. In particular, the term of copyright protection has been significantly broadened by Congress so as to currently include the life of the author plus seventy years (Sony Bono Copyright Term Extension Act of 1998).

Whether such an extended term of copyright protection is necessary to further enhance the creative process is highly doubtful. The prospect of monetary reward is a motivator. However, contrary to what is commonly suggested, people – including artistic/creative people – are not mere “profit-maximizers.” They are also and increasingly “purpose-maximizers” in the sense that they truly care about mastery, personal satisfaction, and achieving a transcendent purpose. One need simply think of Wikipedia. In this case, people who have professions for which they are paid by their employers volunteer their spare time to often more challenging, technically sophisticated, and creative work on an entirely free and not-for-profit basis. Thus, if the creative process is somewhat independent and uncorrelated with the desire to maximize profits, then, one fails to understand how, as suggested by Congress, the severe contraction of the public domain resulting from a life + 70 regime is likely to be offset by an increased incentive to create new works through the prospect of increased “property’ and monetary rewards. By affording creators a level of protection that is not indispensable to the fostering of creativity, the current regime of copyright law has been blown out of proportion and unjustifiably harms the public domain.

III. Copyright law in the face of new technology and mechanisms of distribution

Copyright law was enacted in an age of print and is ill-equipped at dealing with our current digital age, i.e., one in which advances in Internet technologies allow for a broad range of creative expression and a low-cost distribution of public domain materials on a vast scale.

In order for a legal regime to be functional, it needs to strike an adequate balance between culture and law. Before the Digital Revolution, equilibrium seemed to be reached between technology, culture, and the law. Protecting the right to copy technically made sense in a cultural environment where copying and distributing works were extremely costly, time-consuming and of poor quality. With the advent of the Information Age, culture and law are not only divergent; they are truly alien from one another. On the one hand, the law affords owners the right to strictly control the copying of their works while, on the other hand, new digital tools have enabled copying and distributing at low-cost, perfect quality, and on a massive scale, thus making it hard – if not impossible – to go after the alleged infringers and enforce restrictions on copying. Attempting to apply copyright in the digitized world is the equivalent of imposing a stumbling block to creativity by thwarting that which makes the Internet so unique: its ability to invite people to collaborate in remaking and sharing the works and creations of others in ways that were inconceivable in the more static analog universe.

As pointed out by Neelie Kroes, European Commissioner Vice-President for the Digital Agenda, those that truly need to understand the need for adaptation of the copyright regulations are the content gatekeepers and intermediaries. Today’s copyright system has ended up given these intermediaries a more prominent role than the artists. They stand to form a barrier between the artists and the public which often cannot access what the creators want to offer. Applied to the digital world, copyright law does not serve its alleged purposes. It is such as to unjustifiably withhold materials and exclude others from knowledge and culture at a time when, as stated by N. Kroes, “[t]he Internet has [realized] the Renaissance dream of Giovanni Pico della Mirandola: all knowledge in one place” [and, may we add, accessible to everyone from everywhere].

The need for new business models that better fit the digital age is an undoubted fact. In reality, copyright owners themselves only rely in incidental ways on copyright to protect themselves in cyberspace and are in the process of experimenting several alternative strategies for distributing their content online (e.g., the use of Creative Common licenses, contract law, digital rights management technologies, financing through auctions, free distribution of content with profits made on complementary goods and services, etc.). As pointed out by Diane L. Zimmerman, no one yet knows which model will work best, but, whatever the end result, the emerging solution will undoubtedly owe very little to formal copyright in the digital world.

For further information on the topic, see the following links:

http://www.albanylawreview.org/articles/Zimmerman.pdf http://www.youtube.com/watch?v=dgKKPQiRRag http://www.vanderbiltlawreview.org/content/articles/2011/10/Ochoa_64_Vand_L_Rev_En_Banc_1233.pdf http://en.wikipedia.org/wiki/Copyright_Act_of_1790 http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act http://blogmywords.wordpress.com/2011/07/02/copyright-in-the-digital-world-part-i-the-challenge/ http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/619 http://www.zeropaid.com/news/91251/eu-digital-agenda-vp-need-to-sideline-content-gatekeepers/ http://www.edri.org/edrigram/number8.22/copyright-a-stumbling-block-kroes

First draft.