In the beginning the copyright was intended to prevent publishers from repressing authors. We have come full circle.

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BREAKING THE CHAINS OF COPYRIGHT: From the fetters of copyrights to the free-circulation of information

Stephanie Burel

LW 556 April 2002

ABSTRACT:

The end of the twentieth century is the clear emblem of a new ?Information Age? in which economic activity is based increasingly on information and intellectual products. New technologies, such as the internet, constitute a new market for creative works based on use of a new type of ?property?: ownership of information. A property today easily accessed: from book extracts to newspapers releases, all types of expression are included thus enabling people?s freedom of expression to be enforced at large and recognising the benefits of public access as a means to future progress. Nevertheless, this is also a crucial time for reviewing the current legal restrictions existing that limit the free-flow and re-use of information. Recently, these restrictions, in forms of copyright, have become dramatically more severe. The situation will deteriorate further, if the trends are not reversed and will take a heavy toll on technological restrictions in the first place.

I will argue that our market-orientated societies would be better off without such drastic legal measures and thus freely enjoying and benefiting from the fruits of knowledge and information, rather than accepting Copyright as the only means to control this new industry. Copyrights in the form of drastic measures are inevitably inappropriate since its enforcement is a tool for the exercise of State power, giving the excuse of securing the creators and publishers? property, rather than securing the development of knowledge and sciences through the means of an incentive for the benefit of the public.

INTRODUCTION

PART I: Historical Justification for Copyright

The development of my argumentation against the use of Copyright at our time of this new ?Information Age? starts by analysing the rationale behind its creation to demonstrate that although legislators claimed that Copyright was primarily necessary for the public?s sake by the means of a reward to the author, it was in fact created by publishers for the fruits of Copyright economic benefit1. Therefore, using the argument of an authors natural right 2of reward to extend Copyright today collapses and the controversies of the concept itself makes us lose our confidence in Copyright?s ability to control today?s new technologies.

The Crown, at the Heart of Copyright?s Foundation

Contemporary copyright laws are the result of a long evolutionary process that originated with the invention of the printing press. The printing press allowed the multiples copies of written work to be produced on a mass scale with a minimum time and effort. As a new technology that increased the rate of production of copies and generated profits, the printing press had a great impact on society, affecting not only the public but also authors and rulers. In the case of the public, it might be deceptive to state that the printing press, in itself secured public literacy, as people are always in need of a reason or a motive to read, and religion offered that motive. Nevertheless, the printing press may take the credit for terminating a monopoly or knowledge. This was exercised in the name of religion by the priests of Ancient Egypt and continued to be exercised by the clergy in Europe until medieval times. In the case of authors, the printing press provided a degree of independence. With the increased interest in reading among the middle class, authors could, to a certain extent, write what they desire rather than what aristocrats wanted to read. Amongst rulers the printing press was perceived as a threat as it provided the means of spreading ideas and philosophies that might undermine their authority. Rulers, therefore, tries to impose a Draconian control over the use of the printing press, which took the form of strict censorship.

Although professional authors played an economic role in the bookmaking process in the 16th Century, they had no status before the law: the printers paid authors for their manuscripts and in return received exclusive rights to them. Thus authors only benefited from professional compensation and standing through the bookmaking process and could only be assured that their work would not be pirated or misrepresented in the market. However, if Copyright does not originate from authors themselves, it emerged with the creation of the Stationer?s Company, a guild of printers who had the exclusive rights of and unlimited monopoly over the production of books which would then had to be approved by the Crown, the confiscation of unsanctioned books and the duplication of books on the basis of a record publication, known as a register. This led to the first enunciation of the term copyright in 17013. In other words, the creation of Copyright was a ?sweet deal? for publishers since they had the exclusivity-monopoly power to print and distribute specific works: the functional foundation of copyright. Furthermore, the operation of the Stationer?s Company show two fundamental principles of original English Copyright law:

some revealed natural right of authors

It granted a monopoly to publishers who could set a price for books without considering market pressure, yet it had no dimension of property to them

In other words, Copyright originally worked in the interests of an ?autocratic? and absolutist ruler who wished to maintain control over a potentially threatening information and a guild of publishers which in return for monopolistic rights enforced censorship.

In 1662, Parliament passed the Printing/Licensing Act, by which the Secretary of State?s Office became responsible for pre-publication censorship. To prevent any changes from being made after the licensing of the book a copy was required to be deposited with the licensor upon application for a licence. The Act did not overlook the interests of the Stationers? Company and retained the requirement of registration on the Stationers? register as a prerequisite for publication. It was initially to last for three years, was renewed several times before it was allowed to expire in 1679. It was revived in 1685, and was to be renewed again in 1694, but the House of Commons did not sanction the renewal. As a result, the Company?s power to restrain printing ceased.

RECOGNITION OF AUTHORSHIP or LITERARY PROPERTY

The Straw Man

In 1710, authors were finally legally recognised through the Statute of Anne which emerged when The ?Battle of the Books? took place during the first three quarters of the 18th century, as independent publishers, in sympathy with the ?Society for the Encouragement of Learning?, challenged copyright holders by producing unauthorised editions of popular English literature. The non-renewal of the Licensing Act led to the spread of pirate copies of books, especially in the provinces, which weakened the position of the London publishers who constituted the vast majority of the Stationers? Company. As soon as it was realised that Parliament was not sympathetic to their case, the Stationers changed their strategy and in 1707 petitioned Parliament to protect Authorship and ?literary property?. Publishers argued that the interests of both the public and authors were harmed by the lack of price stability:

?An Act for the Encouragement of Learning, by Vesting the Copies of printed Books in the Authors or Purchasers, of such Copies, during the Time therein mentioned.?4

In other words, publishers appealed to the interests of authors to renew their monopoly protection. Their stated aim was to protect the creator of the work, in reality, they were aware that any property right that might be recognised for authors would eventually be theirs through assignment.

Two levels of copyright were put in place. The first was issued in the name of the authors for all books published after the act took effect with a term of protection of 14 years, renewable for another 14 years, in order to promote the encouragement of learning and as an incentive to produce more books and therefore, anyone was virtually eligible to hold copyright. The second level of copyright was allowed to the Stationer?s Company to have their rights reinforced to previously published works to a non renewable 21 years. The Act was thus the first codification of the ?public domain?5 based on a collection of works old enough to be considered outside the scope of the law and thus under control of the public and the culture at large. It gave legal expression to the idea that the social value of disseminating information and culture was great enough to justify limiting the property interests of publishers. Indeed, it did recognise the publishers? need for protection, however it destroyed the monopoly of the Stationers Company:

?Printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their family?? Preamble of the Statute of Anne

However, not long after the Act was passed, the Stationers continued to charge exorbitant prices for classics of English literature and editions of the Bible to which they owned the copyright. The Act was thus another proof of the system?s ?hypocrisy? towards authors who were said to be its main beneficiary and were finally confronted to only another regulation of the practice of printing and selling books, not writing them, and a recognition of the public interest in the process. The codification of authorship was merely an appeal to a ?straw man?. The publisher is the real player in the legal and commercial game. Mainly, the Statute of Anne was an elaborate attempt to regulate publishers, a way to balance the interests of the book industry with the concerns that monopolies were growing too powerful in England, in vain. In this context, I would say that money or economic reward to publishers, and power to the State, made the practice which had honestly, nothing to do with the aim of the Act?s wording of protecting authors in the first place.

In sum, looking at the historical background of Copyright in the UK, it seems that the concept was born out of publishers? desire to benefit from literature?s increasing popularity at that time with the impact, on society, of new technology enabling a clever saving-labour device and thus did not emerge from a concern for authors? rights. They are not natural property rights which took a definite form as the result of the invention of the printing press. Concepts of market and private property clearly shaped the way Copyright was extended and used, and perhaps to the detriment of the public which should have been and should still be the primary beneficiary of Copyright through a well distributed and controlled information. Copyrights are needed as an incentive to produce something valuable that otherwise would be a public good, which would thus be supposedly under-produced on the free-market.

The American Way

Looking at the development of Copyright in the UK was fundamental to understand the concepts? origin since England was its place of birth. However, I found it interesting to briefly look at the way Copyright evolved in the United States since it emerged as a consequence of its developments in the UK but then had many differences as well. The United States has, today, a fundamental role in dealing with Copyright in the ?Information Age?, since it has the lead in our market-orientated world. The USA has had an interesting approach and rationale, behind their application of Copyright, which I shall consider to confirm that Copyright do derive from a privilege system but where the judiciary primarily aimed at a balance between public good and private reward.

In reaction to the USA?s increasing piracy between publishers and lack of incentives for authors to create original work, Noah Webster6 fought to get each state to pass a copyright act that would protect his work as both an author and a publisher and finally succeeded in January 1983 when the Connecticut legislature passed the first American copyright statute entitled ?Act for the Encouragement of Literature and Genius?. Like in the UK, any author resident in the USA control over the printing, publishing and selling of a work for a term of fourteen years in return for ?furnishing the Public with Sufficient Editions? so that an author could not benefit from the protection of the law while restricting access to his work. Such a balance between public good and private reward served as the germinal idea of American copyright. As it has been seen, the introduction of the author into the law of copyright occurred in the first decade of the eighteenth century, and culminated in the Statute of Anne. However, reluctant to the dangerous monopoly licensing gave both the state and the favoured publishers, James Madison and Noah Webster set about establishing the working principles of American copyright just after the Revolution.

The most important and explicit phrase emerging from the Convention became Article 1, Section 8: Congress shall have the power to ?promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries?. In other words, Copyright are meant to benefit the public first and foremost through the incentive principle that Copyright allows enough monopoly to ?promote? further creative works but only for limited times.

Conclusion

During the eighteenth and nineteenth centuries, British authors organised to protect their financial interest and place in society. They called for a valorisation of their profession. They recognised that they controlled a valuable financial and cultural commodity in a thriving empire that based its imperialistic motivations on the superiority of its culture. They lobbied for copyright laws to protect their financial interest.

In 1834, the US Supreme Court dealt a blow to the natural law mystification of the author by ruling that a copyright is a privileged monopoly, and that it should be limited to allow competitive printing to disseminate knowledge cheaply. The case Wheaton v. Peters7 arose from a dispute between two reporters for the United States Supreme Court. Henry Wheaton had for many years compiled the reports of the Court. His successor, Richard Peters, decided to supplement the continuing reports with a series of ?condensed reports? that included decisions that had been published by Wheaton years earlier. Wheaton argued that Peters had infringed his copyright both through the copyright statute and through common law. The court declined to rule on the common law question, so Wheaton appealed . Justice McLean declared that the United States recognised no common law notion of copyright, and argued that a perpetual monopoly would not be in the interest of the public.

We have thus observed that copyright is constituted by ?two camps?, publishers and authors on one side, the public, on the other, each with its own interests. Publishers, at the roots of copyright?s foundation, and authors, in demand for protection for its financial and political reward for their creative work considered as private property. The public benefits from copyright for its procedures of selecting the proper information and knowledge allowed to be used and worked on for future developments.

I would argue that one can appreciate both sides needs, but today with the rapidity of technological advancement where knowledge and information can be into the public?s hand so easily and so cheaply, it should be allowed. However, if copyrights have been extended, reinforced to the point that the concepts of freedom and democracy are challenged, it is because the whole concept of ?creative works? seen as private property and publishers and authors? favourite political tool to get protection, collapses altogether.

Lets turn to an analysis of the concept of private property in copyright to understand that it in fact it is more publishers? toy rather than a way of benefiting society over all.

PART II: THE PROBLEMS OF COPYRIGHT

Trespass For Words?

Copyright ? the legal claim of ownership over a particular arrangement of symbols ? is a complicated issue because the property being claimed is intangible. It has no mass, no shape, no colour. For the property claimed is not the specific instance of an idea, not a specific book or pamphlet, but the idea itself and all present or possible instances of its expression. Can ideas be property? What are the characteristics of property?

Benjamin Tucker addressed this question in fundamental terms. He asked why the concept of property originated in the first place and expressed the fact that property arose as a means of solving conflicts caused by scarcity. Since all goods are scarce, there is competition for their use. Since the same chair cannot be used twice, in the same manner, at the same time by two individuals, it was necessary to determine who should get the chair. Property resolved this problem. The owner of the chair determined its use.

?It it were possible, and if it had always been possible , for an unlimited number of individuals to use to an unlimited extent and in an unlimited number of places the same concrete things at the same time, there would never have been any such thing as the institution of property?8

Since the same idea or pattern can be used by an unlimited extent in unlimited locations he concluded that copyright ran counter to the very purpose of property itself which was to ascertain the correct allocation of a scarce good.

Copyright also contradicts essential characteristics of property, one such characteristic being transferability. Property has to be alienable: you must be able to dispossess yourself of it. James L. Walker commented

?The giver or seller parts with property in conveying it. This characteristic distinguishes property from skill and information?9

When you buy the skill and information of a doctor who gives you a check up, for example, you don?t acquire a form or title, as you would acquire title to a car from a car dealer, because the doctor is unable to alienate the information from himself. He cannot transfer it to you: he can only share it. It was this point that lead Thomas Jefferson to reject ideas as property, drawing an analogy between ideas and candles. Just as a man could light his taper from a candle without diminishing the original flame, so too could he acquire an idea without diminishing the original one.

?If nature has made any one thing less susceptible than all others of exclusive property, it is an?idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it?10

When a poet reads or sells poetry without a contract, when he throws his ideas and patterns into the public realm, listeners receive information, not property. For the publicised poems to be property they must be transferable, alienable. Yet, as J. B. Robinson said:

?What is an idea? Is it made of wood, iron, or stone? The idea is nothing objective, that is to say, the idea is not part of the product; it is part of the producer?.11

In other words, if the poet claims ownership of the patterns in his listener?s head, this reduces to a form of slavery since the ownership claim is over an aspect of the listener?s body. Such a claim is comparable to owning the blood in someone else?s arm. Although you can buy blood, that purchase is contractual and is not a natural right. Thus another reason that title to a poem is not transferable, meaning the arrangement of the alphabet that constitutes all such potential poems, is because it is intangible. Those who try to claim property rights in something that is intangible are trying to bring together two mutually exclusive things. When a poet reads his work, he throws the poetry into the public realm and crosses the line between private and public ideas. Everyone owns an idea in his own mind and no one has any right to that specific instance of the idea. And if that specific instance is the only instance that exists, that idea is protected by his right of self-ownership or the right of inviolability of a person.

Furthermore, I do not believe copyright protects the just profits of an author. George Bernard Shaw contended:

?Copyright is the cry of men who are not satisfied with being paid for their work once, but insists upon being paid twice, thrice and a dozen of times over?12

I believe free market copyright would temper the immense profits that can be made from writing because these profits are not so much ?just? rewards as they are the product of state monopoly. I do not believe the absence of state privilege will destroy literature. Most of the world?s great authors, Shakespeare, for example, wrote without copyright. As for the possible destruction of the publishing industry, Tucker, a journalist and a publisher explained:

?Why did two competing editions of the Kreuzer Sonata (a book he published) appear on the market before mine had had the field two months. Simply because money was pouring into my pockets with a rapidity that nearly took my breath away. And after my rivals took the field, it poured in faster than ever.?13

A writer seems eager to maximise its profits and not so eager to claim ownership over what is in one mind. My attitude towards writers who throw their products into the streets and yet wish to have an invisible thread of ownership attached to each instance of it, is simply this: if you want your ideas to yourself, keep them to yourself.

Relief from copyright and time for freedom

Creating artificial scarcity is obviously unreasonable. The current system of Intellectual Property rights tries to enforce artificial barriers upon the free-flow and use of information, thus creating scarcity where it is most damaging to all humanity and where a rich bounty of wealth could exist instead. Such barriers can only be upheld by a rigorous legal system, under application of draconian enforcement measures. We all know of the difficulty of preventing the free flow of information, and we have all heard the cries for help from mighty publishing empires, alleging that pirates are supposedly stealing large chunks of ?their rightfully deserved? revenues. The difficulty of enforcing these rights show how unnatural and artificial they are.

The most obvious argument against upholding such barriers is that transfer of information cannot be called theft, as it is so often loudly proclaimed. If someone copies a piece of information or idea that I hold, then I have not lost it. I still have it, I am able to derive the same utility from it, and in addition, somebody else is able to now benefit from it too. As Chafee famously remarked:

??the world goes ahead because each of us builds on the work of our predecessors?A dwarf standing on the shoulders of a giant can see farther than the giant himself?14

As the cost of copying is so low and still going down, it would be foolish to prohibit the obvious ease of information transfer. It is essentially suicidal to establish barriers here, instead of utilising the great technological capabilities to the fullest extent. We heard of the requirement that ?spoilers? be built into Digital Audio Tape (DAT) machines. This is just perverse. The cost of copying is so low, that the dispersal of intellectual products can be considered to be very close to free, and creating artificial scarcity here is a very bad idea.

Note that the creation of intellectual products does of course carry a cost, which is often significant. Ways to recuperate such an investment will be addressed later. However, once an information has been created, the widest possible use should be encouraged, not prohibited. Every intellectual product that reaches only half its potential audience has been half wasted.

As a side remark, one can observe that artificial scarcity has often been created by vested interest groups before, on other contexts. This does not make it any better of course. The business of setting up arbitrary, inconveniencing, and artificial barriers is an activity that invites many parasites, and many governments have been rather good at such things. It has happened more than once in history, that a city-state was founded right as a strategic bottle-neck, such as naturally destined river-crossing and has set up an enforced system to collect a bridge toll, without which humanity arguably would have been better off. Control of import and export, and slapping toll on goods transferred over national borders, is another favourite activity of governments, no doubt justifiable by various ?political pseudo? reasons.

Something that has not happened yet but has been proposed occasionally, is that programmers ought to be licensed to be able to practice their trade. Their product is of such importance that it cannot be left into the hands of hobbyists. Just think of the safety implications and the horrible accidents that could happen due to software malfunctioning in a flight control system or nuclear power plant! That the possibility of forcibly restricting programming activities to only a government-licensed elite is not entirely absurd, is demonstrated by the fact that at least two job categories already require such licenses, namely the medical and law professions. It might well be possible to recruit many vocal proponents who will argue how the higher salaries available for this elite will induce more people to become qualified and licensed programmers, thus benefiting society enormously. As we see from this still hypothetical and absurd example, by creating artificial scarcity where none would be necessary, more harm can be done than good.

Is Copyright dying?

A limping Copyright

Throughout this analysis, I have expressed my fear of having today a system based on drastic rules, mastering the distribution of information. One current policy concern is this: digitalisation makes it technically possible to keep tabs on a number of things that in an analogue world were difficult and expensive to identify: -the authorship of every piece of information; the user gaining access to that information; and a means of charging users for and preventing them from using information that they do not pay. The ?information? in question potentially includes a lot of what we now think as cultural provisions ? music, literature, films, television programmes, visual art. The change that this could bring about is that materials that users previously had free can now be charged for. However, copyright law embodies within its doctrines the trade-off between the protection of authors and publishers and the rights of citizens to freedom of information and freedom of expression. The latter is being secured by exceptions and limitations to copyright, such as freedom to quote, parody, and cite for criticism. They are collectively known as fair dealing in the UK and fair use in the USA. These freedoms may now be lost as authors could charge for each use and thus block use. We could have a free-information world where freedom of speech and scientific, literary etc developments could be promoted thanks to ?access? and to a new type of market based on alternatives to copyright laws for regulating information industries: competition rules on ownership and market shares may be more effective and direct instruments of control. Property rights are necessary for trade to take place but their value is established by market forces. The market is the chief arbiter of private costs and benefits. Copyright laws and markets have adapted to huge technical changes, which have taken place over three centuries, with the same principles more or less intact; however, technical changes frequently redistributes benefits, pecuniary and non-pecuniary (freedom of information, access to information etc) between market players ? producers of ?old? technology? goods and services, producers of ?new? technology goods and services and consumers. The questions asked with every new technological revolution are the extent to which it could radically change markets, trigger off social change and require a different paradigm of laws and legal economic institutions. Policy-makers know more about the present than the future and their information on the effects of new changes of the market, as is well known from the economics of potential ?winners and losers?. Economic costs and benefits, however, may be greatest in total to large numbers of ?small? gainers/losers, such as consumers, who do not organise and lobby.

Governments have worked, instead of promoting freedom of information for the purpose of development, to protect special interest groups such as publishers or big companies, following the ?private property? rationale and therefore putting the public at large on hold or even just invisible. The use of Copyright has thus worked against the whole rationale behind Copyright: benefits to the general public. It used principles such as ?private property? as excuses for more protection and finally, providing an incentive. But is this really true?

One key problem is the wide-spread perception that governments should proactively do ?good? and ?useful things to benefit society. This is very popular, and politicians try to always cast whatever they happen to be doing in this light. So it has been argued that governments should pursue policies which foster the economic strength and competitiveness of their nation. This is usually accomplished by enacting fairly arbitrary decisions on which activities to encourage and which to prohibit, instead of just having faith that a free market economy will flourish on its own without government control. Unfortunately, almost all government interventions have undesired side-effects, which are often difficult to foresee, and often end up being worse than the ?problem? that was supposed to be fixed in the first place.

Regarding Copyright, the usual justification for promoting this system is that companies supposedly need a specially protected time to recuperate their investment15. Thus, with this system, companies ought to have an incentive to create more than they would otherwise.

As copyrights protection involve such severe restriction of public freedom, they are only justifiable if it can be conclusively proven that instantiating such drastic measures does more good than harm. Otherwise, even if the effect turns out to be just neutral and not damaging, one might as well live without the bureaucracy. The proof that this legislation is beneficial to the general public has not yet been provided. It is certainly quite difficult to perform such an analysis as we have no experimental control available (technology-intense society without any such restrictions).

They do exist, however, vocal companies and their lawyers, which proclaim that copyrights are absolutely essential for their business and it thus proves that Copyright has essentially become a market-orientated tool through the establishment of property rights by copyright law enabling trade to take place. Copyright does something else too: it determines the life of the asset by the duration of copyright protection, 50 or 70 years, depending on the work. Clearly, the longer the duration, the greater the value of the copyright asset. The intention of protecting the economic interest of the author or performer by a longer-lasting copyright is precisely what has enabled the formation of large corporations with considerable market power. Ironically, the unintended consequence is that authors have to bargain with more powerful firms than they would have to were copyrights weaker and of shorter duration. Thus, copyrights are a double-edged sword that are instrumental in the growth of large corporations with huge market power and bargaining power over the division of revenues that only really successful artists can assail16. Since the government?s purpose is not to serve special interest group, it ought to evaluate whether all of the public will be better off on the whole, not just certain industries or companies.

A common claim advanced to promote ?Intellectual Property Rights? is the necessity to encourage creativity. This is also given as the justification in the constitution of the USA. Quite possibly, once upon a time, this might have made sense, in a time when technological progress was much slower and might have needed stimulation. However, nowadays, progress is so rapid that it does not need further encouragement by such restrictive measures. On the contrary, now the really negative side-effects are kicking in, with the effect of slowing down innovation and progress. As modern technologies are so densely interlocked and mutually co-dependent, it is now often the case that progress in entire fields can be blocked by crucially important copyrights. This is especially true with regards to the principle of ?fair use? in the States which may definitely ?die? from copyright extensions. Publishers realised that by forcing people to use specially designated software to read e-books, they can gain unprecedented power, they can compel readers to pay, and identify themselves, every time they read a book! That is the publisher?s dream and they prevailed upon the US government to enact the Digital Millennium Copyright Act 1998. The law gives them total legal power over almost anything a reader might do with an e-book. Even reading it without authorisation is a crime!

There is one organisation, the League for Programming Freedom (LPF) which advocates abolishing software patents and over-broad extension of copyrights to interfaces. These legal developments are endangering the freedom of programmers to write the best programs they know how, entangling them in weird legal restrictions instead.

Encouraging specific outcomes, such as promoting economic strength and thereby installing incentives to increase creativity through Copyright is very prone to backfiring. Manipulating the economy is especially problematic as nobody has a clue nor the necessary data to demonstrate clearly what the effects of such measures will be, and whether they will be beneficial to the public, all things considered. The issue of fostering a healthy economy are so complex that it is quite farfetched to claim that such freedom-restrictive measures would be actually increasing wealth. On the contrary, such measures seem rather absurd and the negative side effects are very visible. Instead, the real job of the government should be to merely provide a minimalist framework of justice, within which the economy can unfold freely17. Nothing more is needed. Technological progress is such a lucrative topic to pursue, it will develop on its own, unrestricted. Creative new ways to make money are and will be invented again, every time when entirely new technologies have changed the landscape, and have displaced old and outdated technologies and business models. As we have seen, the current Copyright system is very unjust and unfair, directing interfering with real property rights. If the governments want to do something beneficial it should remove this injustice completely. However, because such a reasonable action cannot be expected to occur automatically in a government driven by special interest lobbying, this needs the action and support of the public, to bring about the change for a better system.

BIBLIOGRAPHY:

EDITED BOOKS

- Z. Chafee, Reflections on the Law of Copyright , (Columbian Law Review 503: 1945),

Makeen Fouad Makeen, Copyrights in a Global Information Society: The Scope of Copyright Protection Under International US, UK, and French Law (The Hague-London-Boston: Kluwer Law International, Volume 5: 2001)

Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press,1968)

David Saunders, Authorship and Copyright, (London: Routledge, 1992)

Ruth Towse, Creativity, Incentive and Reward: An Economic Analysis of Copyright and Culture in the Information Age (UK: Edward Edgar Publishing Inc. 2001)

Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York and London: New York University Press: 2001)

Also see Harry Warfel, Noah Webster: Schoolmaster to America (New York: Macmillan Co., 1936.

Noah Webster, ?Origins of the Copy-right Laws?, in A Collection of Papers on Political, Literary, and Moral Subjects New York: Webster &Clark: 1843)

WEBSITES

The Atlantic Online, Life, Liberty and the Pursuit of Copyright?, Roundtable ? http://www.theatlantic/unbound/forum/copyright/intro.htm

Julio H. Cole, Would the Absene of Copyright Law Significantly Affect the Quality and Quantity of Literary Output? (Spring 2001), The Journal Of Market and Morality, Volume 4 Number 1- http://www.acton.org

David Friedman, Standards as Intellectual Property: An Economic Approach ? http://www.davidfriedman.com/Academic/Standards/Standards.html

Mike Godwin, Copywrong: why the Digital Millenium Act hurts the public interest,(July 2001) ? http://www.reasons.com

Insight on the News, Do patents and copyrights undermine private property?,(March 4, 2001) ? http://www.insightmag.com

MPAA/Copyright Press Releases: Remarks as Prepared For Delivery by Edgar Bronfman Jr. (Real Conference 2000, San Jose California, May 2, 2000) ? http://www.mpa.org

Lydia Pallas Loren, The Purpose of Copyright ? http://www.open-space.com

Richard Stallman, Reevaluating Copyright: The Public Must Prevail, (published in Oregon Law Review, Spring 1996) ? http://www.gnu.org

- Stallman, ?The GNU Manifesto?, - http://www.gnu.org/gnu/manifesto

?What is Copyleft?, - http://www.gnu.org/copyleft/copyleft.html

St Petersburg Times Online, Drawing a line on Copyright, (St Petersburg Times: August 21, 2001) ? http://www.sptimes.com

Jesse Walker, Copy Catfight: how intellectual property laws stifle popular culture (March 2000) ? http://www.reasons.com

The Washington Post Online, Copyright Craziness, (The Washington Post: August 17, 2001) ? http://www.washingtonpost.com

Stephanie Burel

April 22, 2002.

INTELLECTUAL PROPERTY LAW DISSERTATION

-LW556-

BREAKING THE CHAINS OF COPYRIGHT: From the fetters of copyrights to the free-circulation of information.

http://www.salon.com/tech/feature/1999/04/05/vinge/

Two Jefferson quotes leap to mind:

"I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

"Though [the people] may acquiesce, they cannot approve what they do not understand." --Thomas Jefferson: Opinion on Apportionment Bill, 1792. ME 3:211

A good friend of mine tells the story of how none of the companies that made ice for iceboxes at the start of the 20thcentury made the jump into producing refrigerators. Why? They confused their activity with their value. They thought they sold ice and their customers thought they were buying the ability to keep lettuce fresh and beer cold. Content producers need to think about that one. So, what follows is a listing, a directed listing, focusing on resources, Web sites, etc. that hopefully you can use to become better informed on the current and emerging state of copyright and intellectual property specifically as it relates to those principles operating in cyberspace. Lists like this are by nature incomplete and also instantly out-of-date - so please if I have excluded your favorite resource or site, just let me know. Mark Oehlert, Editor

Who do these people think they are? This is despicable and it threatens to turn us (Americans) into that which we despise most a closed, repressive society no, we won't close thought and expression down with religion we'll do it under the banner of commerce. Never mind the fact that during the period of time when these technologies were coming of age, we were enjoying the most prosperous single time period in all of American history. Now here is the real ugly truth we elected these creeps and we keep the Hollywood creeps in business by voting with our $$. If we, the consuming electorate, continue down this apathetic and lethargic way, then we will get exactly whet we deserve. FAX! WRITE! EMAIL! CALL your Senators and Reps.! Another thing if you came here looking for balanced coverage my apologies but you ain't gonna get it. You can ask Hollywood and Capital Hill about that they are one who paint all of us as crooks before we have committed a crime. Read PK Dick's story "Minority Report" or rent the video. In the story, criminals are arrested on the basis of vision by "precogs", people who can see the future. Hollywood/Capital Hill goes one better by just convicting everyone up front. We are all being sentenced to life without parole in copyright prison because we might make copies of something that may or may not be copyrighted.

Legislation The Digital Millennium Copyright Act of 1998 www.loc.gov/copyright/legislation/dmca.pdf

DIGITAL MILLENNIUM COPYRIGHT ACT This presents Congressional bills, reports, amendments and floor comments on the Digital Millennium Copyright Act (DMCA) (introduced as H.R. 2281, WIPO Copyright Treaties Implementation Act). A following section presents similar material on subsequent copyright legislation related to the DMCA. http://eon.law.harvard.edu/openlaw/DVD/dmca/Brief s filed in Eldred v. Ashcroft The case concerns the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) which, following intense lobbying by media conglomerates such as Disney and Time Warner, was enacted by Congress in 1998 and extended the term of all existing and future copyrights by twenty years. Eric Eldred, who maintains a website that gives readers free access to materials whose copyrights have expired, challenged the CTEA with the assistance of the Openlaw project of the Berkman Center. Although Eldred has lost in both the district and appellate courts, the case has been accepted for review by the Supreme Court Read a short summary of one of the amicus briefs on LawMeme: http://research.yale.edu/lawmeme/

Read all the briefs:

http://eon.law.harvard.edu/openlaw/eldredvashcroft/legal.html

Declan McCullagh's Politech's Archive on the CBDTPA http://www.politechbot.com/cgi-bin/politech.cgi?name=cbdtpa

Sen. Fritz Hollings' Consumer Broadband and Digital Television Promotion Act http://www.politechbot.com/docs/cbdtpa/ Senator Hollings' Home Page http://hollings.senate.gov/3

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Organizations Chilling Effects Clearinghouse: A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, and University of San Francisco law school clinics. Do you know your online rights? Have you received a letter asking you to remove information from a Web site or to stop engaging in an activity? Are you concerned about liability for information that someone else posted to your online forum? If so, this site is for you. http://www.chillingeffects.org/ Creative Commons: a non-profit organization founded on the notion that some people would prefer to share their creative works (and the power to copy, modify, and distribute their works) instead of exercising all of the restrictions of copyright law. http://www.creativecommons.org/ New site to help students, educators find royalty- free works From eSchool News staff and wire service reports May 20, 2002 http://www.eschoolnews.com/news/showStory.cfm?ArticleID=3727 Public Knowledge is a public-interest advocacy organization dedicated to fortifying and defending a vibrant "information commons" - the shared information resources and cultural assets that we own as a people. http://www.publicknowledge.org/ Duke Law School's Intellectual Property Program http://www.law.duke.edu/ip/ Silent Theft: Lear Center Senior Fellow David Bollier's new book tells the great untold story of our time: the staggering privatization of the American commons, including the broadcast airwaves, the Internet, and the public domain of knowledge and creativity. http://www.silenttheft.com/

www.DigitalConsumer.org You buy a CD but can't take it to the gym. The Audio Home Recording Act legalized our right to copy music for personal use -- for example, making a tape of a CD to use in a Walkman. But new copyright legislation makes it a crime to extract music from copy-protected CDs. You pay for cable but you aren't allowed to use your VCR. In the Betamax case, the Supreme Court ruled that making a copy of a TV show was a legal, non-infringing use of broadcast content. But new HDTV 4

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standards will make it illegal to copy a digital broadcast without the permission of the TV station. You buy a DVD but you can't watch it the way you want to. It seems obvious that users should have the ability to fast-forward and rewind movies as they see fit. But new copyright laws threaten that right: it is a crime to sell a DVD player that would allow a consumer to fast-forward through the ads at the beginning of a DVD! You own an electronic book, but you can't lend it to your son at college. Your right to lend a physical book is protected by the "first sale doctrine." This law states that purchasers of copyrighted works such as music or books have the right to dispose of the works in any way that they wish: they can sell them, loan them, rent them, or give them away. But new copyright laws criminalize all of those activities for digital content such as electronic books. http://www.digitalconsumer.org/ The Norman Lear Center: A multidisciplinary research and public policy center exploring implications of the convergence of entertainment, commerce, and society. http://entertainment.usc.edu/Berkeley Center for Law & Technology: to foster beneficial and ethical advancement of technology by promoting the understanding and guiding the development of intellectual property and related fields of law and policy as they intersect with business, science and technology. http://www.law.berkeley.edu/institutes/bclt/ The Consumer Project on Technology http://www.cptech.org/ The Future of Music Coalition: a not-for-profit collaboration between members of the music, technology, public policy and intellectual property law communities. The FMC seeks to educate the media, policymakers, and the public about music / technology issues, while also bringing together diverse voices in an effort to come up with creative solutions to some of the challenges in this space. The FMC also aims to identify and promote innovative business models that will help musicians and citizens to benefit from new technologies. http://www.futureofmusic.org/ The Legal Information Institute http://lii.law.cornell.edu/ the Electronic Frontier Foundation http://www.eff.org/ The Berkman Center for Internet & Society at Harvard Law School: a research program founded to explore cyberspace, share in its study, and help pioneer its development. http://cyber.law.harvard.edu/ 6

Readings The Right to Read by Richard Stallman This article appeared in the February 1997 issue of Communications of the ACM (Volume 40, Number 2). http://www.gnu.org/philosophy/right-to-read.html Google finds the hazards of the DMCA By Dave Winer Special to ZDNet March 25, 2002, 4:20 AM PT COMMENTARY--One of the hazards of the Digital Millennium Copyright Act, or DMCA, came home Thursday in a decision by the leading search engine, Google, to ban a site that's critical of the Church of Scientology. The net effect was that a search for the term Scientology yielded links only to sites controlled by the church itself. http://zdnet.com.com/2100-1107-867708.html Another Punch for Copy Protection By Declan McCullagh 12:00 p.m. March 28, 2002 PST http://www.wired.com/news/politics/0,1283,51400,00.html The DMCA Is the Toast of D.C. By Declan McCullagh 2:00 a.m. May 17, 2002 PDT WASHINGTON -- Champagne was flowing freely in room B-340 of the Rayburn House office building on Thursday afternoon as scores of politicos gathered to toast a controversial copyright law. http://www.wired.com/news/politics/0,1283,52602,00.html Time to rewrite the DMCA By Rick Boucher (Rick Boucher represents Virginia's Ninth Congressional District.) January 29, 2002, 12:00 PM PT The American public has traditionally enjoyed the ability to make convenient and incidental copies of copyrighted works without obtaining the prior consent of copyright owners. These traditional "fair use" rights are at the foundation of the receipt and use of information by the American people. Unfortunately, those rights are now under attack. http://news.com.com/2010-1078-825335.html EFF "Intellectual Property - Digital Millennium Copyright Act (DMCA)" Archive http://www.eff.org/pub/Intellectual_property/DMCA

Two depressing views on the state of information security Tue, 21 May 2002 10:54:16 -0400 (EDT) http://www.politechbot.com/p-03560.html A Bad, Sad Hollywood Ending? Open-source software could find itself locked out of a whole industry if the entertainment giants get their way on copyright protection http://www.businessweek.com/technology/content/may2002/tc20020515_8741.htm DOW, LOHNES & ALBERTSON 1255 Twenty-Third Street Washington, D.C. 20037-1194 Telephone (202) 857-2500 (202) 857-2900 A Primer on Distance Learning and Intellectual Property Issues Kenneth D. Salomon, Esquire Dow, Lohnes & Albertson Washington, D.C. http://www.teletrain.com/copyrigh.htm Anti-Copy Bill Hits D.C. By Declan McCullagh 2:00 a.m. March 22, 2002 PST http://www.wired.com/news/politics/0,1283,51245,00.html WHY NAPSTER IS THE GOOD GUY (AND THE RIAA IS NOT): Why does Napster have such a bad rap? It's the record companies that are ruining the music business, says guest columnist Steve Case. File-sharing sites are just the latest stage in the ongoing evolution of music distribution. http://clickthru.online.com/Click?q=88-ecGPQQKhbqKeSXJ-QTNajV_4U9RRMusic Industry Sues Napster-Like Firm http://www.washingtonpost.com/wp-dyn/articles/A7585-2002May24.html?referer=emailMicrosoft 'Barraging' Military: The Pentagon is pressed to drop its use of free, open-source software. Jonathan Krim http://www.washingtonpost.com/wp-dyn/articles/A60050-2002May22.html"Fair Use" Is Getting Unfair Treatment Two recent federal court rulings in Hollywood's favor could undermine consumers' historical rights to use the content they buy. MAY 14, 2002, COMMENTARY , By Stephen H. Wildstrom http://www.businessweek.com/technology/content/may2002/tc20020514_1528.htm

Lawrence Lessig: The "Dinosaurs" Are Taking Over If the media giants have their way, the Net freedom fighter says, content will be rigidly controlled and innovation stifled MAY 13, 2002, SPECIAL REPORT -- THE FUTURE OF E-BUSINESS http://www.businessweek.com/magazine/content/02_19/b3782610.htm Copyrights -- or Mothballs? Congress' continual extension of the protection period -- under publishers' tenacious lobbying -- has all but ended fair use MARCH 4, 2002, PERSPECTIVE By Heather Green http://businessweek.com/technology/content/mar2002/tc2002034_6498.htm A "Speed Bump" vs. Music Copying Master cryptographer -- and code cracker -- Edward Felten says technology isn't the answer to digital copyright violations JANUARY 9, 2002, NEWSMAKER Q&A http://www.businessweek.com/bwdaily/dnflash/jan2002/nf2002019_7170.html Ted Waitt: Defender of downloads By Charles Cooper Special to ZDNet News May 29, 2002, 8:00 AM PT If he finds himself dining at Spago anytime soon, Gateway CEO Ted Waitt isn't likely to receive any bear hugs from the Hollywood moguls who favor this perennial Los Angeles hot spot. http://zdnet.com.com/2100-1103-927533.html But who are the real pirates? Alex Cox, Monday May 27, 2002, The Guardian http://media.guardian.co.uk/mediaguardian/story/0,7558,722669,00.html On May 21, 2002, the Librarian of Congress, based upon the recommendation of the Register of Copyrights, issued an Order rejecting the Panel's determination proposing rates and terms for these licenses. In such cases, the law provides that the Librarian shall issue his final determination within 30 days of his decision to reject the Panel's proposed rates and terms. The final determination is due on June 20, 2002. http://www.copyright.gov/carp/webcasting-rates-order.html On February 20, 2002, the Copyright Arbitration Royalty Panel (CARP) reported its determination to the Librarian of Congress in the above-captioned proceeding. In accordance with 17 U.S.C. 802(f), the Librarian is given 90 days from date of delivery of a CARP report to review the determination and issue a decision setting forth the final royalty fee and terms of payment. However, if the Librarian rejects the CARP's determination, section 802(f) provides an additional 30 days for the Librarian to render his final determination. The Register of Copyrights recommends, and the Librarian agrees, that the CARP's determination must be rejected. A final decision will be issued no later than June 20, 2002. Webcast Royalty Plan Rejected By Kevin Featherly Tuesday, May 21, 2002; 12:20 PM Librarian of Congress James Billington today rejected a proposal that would force Internet radio stations to compensate musicians and labels for the songs they broadcast, a plan that many Webcasters said would drive them out of business http://www.washingtonpost.com/wp-dyn/articles/A50778-2002May21.html Media firms look to number CDs, DVDs By Matt Loney , Special to ZDNet News May 28, 2002, 8:40 AM PT Every CD or DVD disc manufactured in the European Union would have to carry a unique code if proposals by media representation groups are adopted in the EU Enforcement Directive. http://zdnet.com.com/2100-1106-923314.html Cypherpunks aim to torpedo RIP key seizure plan: Open source projects aims to frustrate key seizure scheme http://www.theregister.co.uk/content/6/25499.html10