14 October 2008

Core Intellectual Property Rights

Today, Professor Lawrence Lessig, until recently one of the Board members of the Electronic Frontiers Foundation, wrote an insightful op-ed in the Wall Street Journal entitled In Defense of Piracy.

It is a counterpoint to a story about President Bush signing the Pro-IP bill which creates an IP czar in the Executive Office of the President, stiffens penalties of copyright violations, and allows for forfeitures of copyright violations in more robust way that applies to trademark violations. Controversial provisions of the bill designed to have the government bring civil copyright prosecutions on behalf of the recording industry and big studios at government expense were dropped.

Honestly, the two positions aren't necessarily deeply at odds. While it may seem at times that the tech industry and creative class opponents of strong copyright laws are impossibly at odds with the corporate proponents of strong copyright laws, the truth is less clear cut.

A copyright is a bundle of rights. One is a prohibition against simple copies of a protected work. But, two other rights in the package are far more controversial.

Most controversial of all is the right of a copyright holder to prevent others from creating "derivative works," in other words, to make something new out of the old. This is, by far, the biggest concern of creators and tech companies. This right is what can make a copyright on software seem like a patent. It can deprive countries that want to read foreign literature in their language of an ability to have it affordably translated. It sternly regulates whole genre's of music like sample based rap and "mash ups." It applies to Harry Potter lexicons, to babies dancing with popular music in the background, and to fan fiction. It has spawned a whole industry of bad knockoffs of trademarked children's characters -- the knockoffs are bad on purpose so that they are not infringing. While there are well established constitutional protections parody and satire, despite the fact that they are clearly derivative works, constitutional law has yet to step in to defend more earnest derivative works.

Also controversial, although less so, are the "performance rights" of the copyright holder. The basic problem here is that studios and recording company insinuate their works into the popular culture in a deliberate effort to have the public adopt their works as part of the popular culture, and then want people to self-regulate, under threat of criminal penalties, if people actually do take ownership of the works foisted upon us (usually for free).

The right is aimed at making it possible to make a living as a playwright, screen writer or song writer. But, it has been applied to cases where businesses allow a television or radio to play in the background, to school talent show performances, to YouTube videos of amatuer performances, and equally absurd settings. In theory, and perhaps subject to ill defined fair use exceptions, singing your favorite pop song in the shower is a copyright violation. Even singing "Happy Birthday," which has become part of our regime of mandatory cultural rituals, is protected by copyright.

These parts of the bundle are fundamentally at odds with a modern information based society. I have also long argued that the conceptualization of intellectual property as property, rather than a right to prevent others from unjustly enriching themselves with works you create. But, these flaws are exaggerated by the extraordinary length of the copyright and the stern punishments including statutory damages and criminal punishments, for violations of the right.

When I was born, a copyright lasted just 56 years, applied only to published or registered works, and had to be renewed half way through the term to retain value. Now, every work, published or unpublished is protected for essentially a full lifetime after the author dies. Almost no new works have entered the public domain since the copyright laws were amended in 1976.

This is despite the fact that the vast majority of copyright protected works have significant commercial value for only a relatively short period of time. What percentage of record sales, periodical sales, movie profits, software company profits, or book sales come from works that are still in copyright that were published before 1952? Certainly, there are a handful of enduring classics that do still bring in money, Disney's Mickey Mouse foremost amongt them. But, the lion's share of wealth in copyright based profits come from works created after 2002, not 1952.

Even when old copyrighted works continue to generate profits, for example, regional and community theaters pay royalties on South Pacific every year, the price of the works and the volume of the works sold typically decline greatly over time.

A regime where core intellectual property rights are protected strongly, while collateral intellectual property rights, like the performance right and the derviative works right, are protected much more weakly, if at all, would go a long way towards making our country more of an economic powerhouse and bringing our intellectual property laws more into accord with common sense.

Footnote. Wikipedia explains the current schedule copyright expirations:

Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. § 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.

Copyrightable works created before 1978 that had not entered the public domain in 1978 received protection for the 17 U.S.C. § 302 term above with the exception that those copyrights would not expire before 2003. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Act (January 1, 1978) this requirement was removed and these works received protection despite having not been published or registered. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive these works, if published before 2003, will not have their protection expire until 2048.

All copyrightable works published in the United States before 1923 are in the public domain; works created before 1978 but not published until recently may be protected until 2047. For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated in 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. No additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.

Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no duration limit. The Sound Recording Amendment of 1972 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Sonny Bono Copyright Term Extension Act to the same date in 2067. As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.

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