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Copyright to Public Domain: A Battle Cry

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I am declaring war on copyright.

I declare war not as an attorney, or as a musician and writer, but as a member of society.

The corporate interests, which hold the majority of copyrights in our country, have distorted copyright beyond all constitutional recognition, and replaced it over the years with something that does little to “promote the progress of science and useful arts.

When the public domain is filled with diverse works, our society as a whole benefits. When there is an absence of input, we suffer as a culture and risk irrelevance.  As a result of the modern climate regarding copyright, this is exactly what is happening to our culture.  The very concept of copyright has become distorted over the course of modern history by a narrow interest with little desire to contribute to the cultural pool. This is contrary to the plain meaning of the Constitution's copyright clause.

Because the reality of modern copyright is so far beyond the scope of the Constitutional framers' original intent, I believe that the only way to recapture the creative arts for the benefit of society is for artists and writers to voluntarily give up their exclusive rights long enough to put the advocates of ever expanding property rights in intellectual works in an uncompetitive position.

Tall order.

Copyright is not a property right.

It just isn’t. By some interpretations of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” an argument could be made that this is, in fact, a time-limited property right, but copyright is a bundle of different rights, and as such, is something altogether different.

First, a brief history lesson:

Just after the United States Constitution was ratified, the First Congress got to work on enacting its missives.  In 1790, Congress passed the cleverly titled: “Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies.” This act gave authors exclusive rights to their work (mostly regarding printing and publishing) for fourteen years, with the option to renew that term for another fourteen years.

The point of this limited monopoly was to encourage authors and scientists to do what they did, by offering the promise of an exclusive financial carrot if they came up with something worth buying.  In 1831, Congress extended the term to 28 years, with a fourteen-year extension.  The next big expansion of authors' rights came in 1909, when Congress extended the categories of protected works to all works of authorship, (except choreography, but that’s a different article), and made the term 28 years with a 28-year renewal. If you check out my source for this history, you will see an interesting quote from the congressional record addressing just what they were wrestling with at the time.

In 1976, the "Copyright Act of 1976" was passed which gave us the modern concept of copyright. “Secure for a limited time,” was reinterpreted to mean the life of the author plus 50 years, or 75 years in the case of a work made for hire. In 1992, Congress again restructured copyright to make the renewal of a copyright term automatic. Works that were about to expire, suddenly received a 67-year bump (in the case of corporate owned copyrights) that automatically triggered if the work was in its first term in 1978.  This  means that affected works will not become part of our cultural canon until Sunday, January 1, 2045. That’s a long time to go before we have a public domain again, eh?

So, what exactly are the rights contained in Copyright? Section 106 of the Copyright Act has the answer. An author has the exclusive right to:

Reproduce the work, prepare derivative works, distribute copies of the work, to publicly perform the work (where applicable), or to perform the work publicly by “means of a digital audio transmission” [obviously what the constitutional framers were thinking of when they wrote this clause].

These are not property rights. They have a property connotation inasmuch as the author can divide, sell, or give them away; but property denotes ownership, and the very concept of “for a limited time” frustrates this concept. The right to information, the property right of culture, rests with the public. Congress has the power to lease that right to the original authors of these works, for a limited time, and only to promote the progress of science and the useful arts. The author never has a property right in his or her work, but instead has the exclusive right to use that property for a limited time. This makes the right more properly a contract right.  The author contracts with society, agreeing to create original works, in consideration for the right to profit from them exclusively for a limited time. 

This concept has been changed over the years as powerful interests have reformed the concept of copyright to something that may be indistinguishable from a property right, and  Congress may yet make these rights perpetual.  Nonetheless, copyright is still not a property right.

What’s the big deal?

The big deal is that even with this rapid expansion of exclusive rights to the detriment of the public domain, there have been safeguards carved out by the law. Fair use and time shifting are two such safeguards.  Now, even these are under attack.  The Internet has had a huge impact on the reassertion of the public desire to have an open culture.

As such, the concept of fair use has become more troublesome for copyright holders, since it is now possible to make a flawless digital copy of an original work that is indistinguishable from the original work.

As has been frequently reported in connection with peer-to-peer file sharing, the major copyright owners have taken an aggressive approach to the expansion of their rights. Successful lobbying succeeded in causing the Digital Millennium Copyright Act (DMCA) to get passed, and a public “us vs. them” campaign has repainted anyone who treads on the rights of a copyright holder as a criminal. For the first time in our history, violating the sanctity of copyright has become a criminal matter.  (See 17 U.S.C. § 506, 18 U.S.C. § 2319).

Ladies and gentlemen, enter Reefer Madness.

Two anecdotal examples of corporate copyright holders’ reaction to the difficulty in policing copyright are the High Definition Multimedia Interface (HDMI) cable, and the recent story concerning Creative Labs, succumbing to industry pressure and removing the ability to record FM radio from their MP3 players’ feature set (mind you, they’re not even doing this with future models, but actually crippling the feature in already purchased players via an update).

The very idea of the public domain is under attack, and copyright has gone from being a temporary monopoly to encourage creation, to a perpetual property right with corporate interest holding exclusive control of our society’s most valuable assets.

What to do…

We live in an era where decentralized networks allowing users to exchange files and information are being shut down because users can utilize these networks to exchange copyrighted files. Think about it — the idea that such a network might exist for the purpose of exchanging data in the public domain is not a relevant enough argument to sway our courts. Who can blame them, there is almost no public domain!

It is doubtful that enough people would be able to get together and overwhelm the lobbying and persuasive power of interests like Disney and Time Warner.  Likewise, the protection of personal use in trading of digital music is all but a lost cause, and fair use has been dealt critical blow after blow.

Organizations like the Electronic Frontier Foundation (EFF), are working hard to change the way we look at these issues, and alternative licensing as pioneered by the open source movement, and the GNU general public license, have worked to refine the way author’s release content. There is nobility left in leaving a creative offering at the feet of our culture.

That’s where we authors come in, and why this is a call to arms. As I see it, the only way of combating a copyright system run so far off the rails is to make the system unprofitable.  This can be accomplished by flooding the market with alternatively licensed works that reinforce the public domain. Many authors think that the current copyright system protects their interests.  However, not only are the major copyright holders fiercely defensive of their exclusive rights, but they step beyond their defensible positions by trying to control the means of distribution as well.  This absolutely adversely affects the "little guy" trying to get his or her work out into the stream.

To this end, I’ve set up an experiment for myself. I’m releasing a boatload of my songs into the stream for other artists to re-record, modify, or for listeners to enjoy and share. Like forcing myself to put a little money away with every paycheck, I keep the songs I know that I’m absolutely going to use on a project, and send the rest out into the world. I’m also going to start doing this with written works, although as a blogger, I already give most of my writing away. 

I may go into more depth on the technical aspects of how I'm releasing these works, but the short answer is The Internet Archive and various peer-to-peer networks. 

It is a controversial solution to the problem. As authors, we all want to create that one work that will put our kids through college and let us retire early.  Unfortunately the balance between society and authors has grown too skewed against society.  It is difficult to imagine a modern world in which fair use of works and a reasonable monopoly for authors can co-exist.  All social change requires sacrifice, and no less so, the quiet struggles for the ways we define ourselves as a society; our cultural identity. Until that balance returns, I am declaring war on copyright.

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About Khidr

  • http://www.booklinker.blogspot.com Deano

    I highly recommend checking out Creative Commons for an interesting new take on copyrights that permits license holders to allow some “degrees of usage” of their intellectual property.

    I also heartily recommend Lawrence Lessig’s excellent book “Free Culture”.

  • http://www.interscription.com Rich Frankel

    Deano, I totally agree on both counts (note the amazon book at the top!)Lessig is all but a holy man in this field, and much of my music goes out under a CC license. I’m actually glad you brought this up, because I think the nuts and bolts of what Creative Commons is doing, is very on target, but unfortunately would’ve resulted in an epic uber essay. I might make it the subject of my next article, since this one gives author’s the why, but very little of the how.

    Cheers.

  • Bliffle

    I agree. Flagrant abuse of copyright and patent by monopolistic renegade corporations works to the detriment of orginal authors and the general public alike.