Copyright is one of the legal theories that tends to come up most often in connection with e-books. The ease of copying digital data, coupled with laws against breaking decryption on that data, have generated a controversy that has been going on for at least twelve years now and shows no signs of stopping.
Yet there are quite a few misconceptions about copyright that tend to persist, and it’s time to try to clear some of them up. (Again.)
Copyright is a monopoly.
By which I don’t mean to say that publishing is a monopoly, though some people might still look askance at the Big Six or Agency Five with that point of view in terms of the recent Agency Pricing controversy. No, copyright itself is a monopoly—a government-granted monopoly over the publishing of certain works.
“But we own those works,” copyright holders might protest. “Of course we have a ‘monopoly’ over them!” They might find this to be obvious, in much the same way people poked fun at Amazon’s strangely-worded “capitulation” to Macmillan in the first few days after Amazon yanked Macmillan’s print titles.
But as much as people snorted at Amazon’s complaint that Macmillan had a “monopoly over their own titles,” it does have that monopoly—but only because, thanks to copyright law, the government says that Macmillan is the only one with the rights to publish those particular works, due to its agreement with the original copyright holders (the authors). Likewise, copyright holders only “own” their works because the government says they do, not from any property inherent in the works themselves.
If it weren’t for those laws, anyone could publish anything with impunity. (As US publishers did with foreign authors’ books, in the 19th century when the US didn’t recognize other nations’ copyrights.) There’s no natural law saying that only the person who wrote the words can copy them, the way that physical objects can only be in the possession of one person at a time. Anyone can copy words or pictures—unless the government steps in to say, “No you can’t.”
There is a common misconception today, especially among people who create copyrighted works, that the purpose of copyright is to protect the people who create copyrighted works. But in a terrific essay in Open Spaces Magazine, law professor Lydia Pallas Loren reminds us that the real reason that copyright was written into the US Constitution was to protect not the creators of the work, but the public as a whole.
Three hundred years earlier, copyright started out as a private monopoly—the Stationers’ Company (the guild of booksellers) got together and decided to respect each others’ rights to print certain books. In 1557, the crown granted a royal charter to the Company permitting them to destroy “unlawful” books, leading to a form of crown-sponsored censorship that lasted for 150 years.
Extremely suspicious of copyright because of the abuses that had come before, the Founding Fathers explicitly limited its scope in the Constitution. In fact, as Loren points out, copyright is the only clause in the grant of powers to Congress that has an explicitly-stated purpose: "to promote the Progress of Science and useful Arts."
But over the last couple of hundred years, the balance has shifted away from promoting science and useful arts and toward filling the coffers and enhancing the control of copyright holders. This ends up leading to a de facto form of censorship as rights-holders are able to prevent otherwise fair uses simply by having more money with which to fight would-be fair users in court.
One thing that particularly interested me in the article was the mention of the landmark fair use case, pitting 2 Live Crew against Orbison Music in the matter of their parody of “Oh Pretty Woman”. This is a pretty well-known case, and is often brought up in any discussion of parody as legal fair use.
I had always assumed the Supreme Court case had been decided in favor of 2 Live Crew, as the song was a fair use—but Loren points out that in actuality the Court remanded the case to a lower court for reconsideration, but instead Orbison Music saw which way the wind was blowing and entered into a licensing agreement with 2 Live Crew.
2 Live Crew was fortunate. The group had the resources to fight all the way to the Supreme Court that repeatedly emphasized the importance of the promotion of the progress of science and the useful arts as the ultimate aim of copyright. But, in the end, even for 2 Live Crew’s parody, a license from the copyright owner was the result. The need for a license, of course, grants to the copyright owner the power to deny that license which is the power to censor certain kinds of speech.
But others aren’t so lucky. If an author wants to use a particular quote from a song as an epigram for his book, he can still be sued by the rights holder. Even if a court would end up finding his use fair, how is he supposed to find the money to fight it out? Why would he even bother to fight it out rather than just drop it?
The article is very thorough, and Loren explains, the history of the laws, the theory behind the laws, and the harm being caused by the changes to the modern copyright system in ways that most readers can easily understand. This is the kind of article to show to someone who does not understand why copyright reform is so important—or who is not even aware of it at all.
Related: The discussion that followed Are ‘second-hand e-books’ possible?