GET AWAY FROM MY INTELLECTUAL PROPERTY, or Copyright in Perspective

Despite its sanctified place in the U.S. Constitution— acknowledged even in advance of the elementary rights of freedom of speech, religion, press and assembly— the institution of copyright continues to be a work-in-progress. In the most straightforward terms, copyright refers to the granting by a government of the exclusive right to reproduce a specific expression of an idea— an expression in text, music, film or any number of other continually expanding forms of expression. To truly understand why a copyright is granted, and how it works, it must be seen through an ever-changing set of historical circumstances determined as much by evolving technology as by shifting political allegiances and expanding financial interests. To underscore this point, one need only look to an early chapter of copyright as a legal construction in renaissance England. Here, due to the rapid emergence of the printing press, a primitive copyright law was designed in 1662 to protect the interests of certain printers and booksellers enabling a monopoly on printed materials. While in 1710 a subsequent law favored the authors of the printed work, allowing them the exclusive right to copy and disseminate their work for a fourteen-year term. The logic of this 1710 statute would in turn inspire the writers of the U.S. constitution to include copyright provision in their document, principally as an incentive to bolster the integrity of scientists, artists and inventors—key participants in the development of a young nation. What quickly becomes clear even through this early history is that copyright is actually not so much a universal freedom, but rather a sophisticated means of governmental regulation used to protect a discrete, albeit ever-changing, set of interests.

Figure Title (optional) some historical challenges to copyright. "To deal with the monk-copyist, we need no intellectual property right because physical control of the copyright is enough. To deal with the Gutenberg Press, we need the Statute of Anne (1710). To deal with the Internet, we need the Digital Millenium Copyright Act, the No Electronic Theft, the Sono Bono Term Extension Act, and perhaps even the Collections of Information Antipiracy Act." (from ‘The Second Enclosure Movement and the Construction of the Public Domain’, James Boyle) (in chronology left to right) Copyright law continues to be framed as a means of control and a protection of interests, but the questions of whose interests are being protected have become increasingly complicated. “In a networked society, copying is not only easy, it is the sine qua non of transmission, storage, caching, and, some would claim, even reading. …… Intellectual Property is now in and on the desktop and is implicated in routine creative, communicative and just plain consumptive acts that each of us performs every day. The reach of the rights has been expanded at the same moment that their practical effect has been transformed.” (from ‘The Second Enclosure Movement and the Construction of the Public Domain’, James Boyle) But not unlike the situation in seventeenth century England where a copyright law engendered a monopoly on printed materials, defense of copyright continues to pit private interests— largely financial— against those of the general public. Add to this a rapid growth in the technologies of easy information transfer— think “digital” — and copyright quickly becomes both a battle cry and an object of intense scrutiny. For unlike patent and trademark, its close neighbors in the realm of intellectual property, copyright refers specifically to the representation of an idea, not the idea itself. In this sense, copyright is deeply entangled with the constitutional freedom of expression, leading to further confusion. For example, what happens when one form of expression actually undermines another form of expression? To cite one current dilemma, certain expressions in text, namely computer source code used to write computer software—despite being likely candidates for freedom of expression protection—might actually facilitate the copying of other items protected by copyright. Does freedom of expression apply to the software? Or is current copyright law unduly restrictive? To answer these questions and countless others surrounding copyright, is to participate in an ongoing debate that sees no immediate resolution. A selection of court cases which have tested the boundaries of copyright law and spurred its continued debate: Register.com v. Verio New York Times v. Tasini Greenberg v. National Geographic Society A+M Records v. Napster, Inc. Baker v. Selden Religious Technology Center v. Netcom Encyclopedia Britannica v. Crooks and many, many more