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Copyright Law Module 2 of 3: The History and Future of U.S. Copyright Law

Module by: Ashley Allen. E-mail the author

Summary: This series of three modules (see bottom of page for links to modules 1 and 3) is intended to provide an overview of U.S. Copyright Law, both as it is written in law and as it functions in the courts. The evolution of copyright law in response to new technologies, the specifics of U.S. Copyright Law, and significant copyright court cases are all discussed. This second module focuses on the history of U.S. Copyright Law, highlighting the motivations that have structured copyright law over time and changes in the law which have significantly affected both its scope and content.

Introduction

Copyright law wasn't always as interesting as it is today. In fact, prior to the 1960s (and maybe even the 1990s), being an intellectual property lawyer was probably about as exciting as watching paint dry. But with the emergence of new technologies (broadcasting, sound recording, TiVO, and...of course...the internet), copyright law has grown increasingly dynamic and complex. Sixty years ago, anyone who wasn't an artist herself could reasonably ask “What does copyright have to do with me?” Today, copyright law affects millions of individuals, even those who are not creating copyrighted material themselves.

This module explores the history and future of copyright law. We'll begin by looking at the reasons that copyright law emerged in the first place, then we'll briefly discuss early changes in U.S. copyright law. We then turn to a more detailed discussion of the directions in which U.S. copyright law has been moving recently and to potential future issues surrounding copyright “in the digital age.” Our discussion will highlight the considerations—political, economic, and technological—that have fueled the evolution of copyright, as well as the implications these changes have for the future of copyright law.

Early History of Copyright

The Printing Press and England's First "Copyright" Law

Prior to Johannes Gutenberg's invention of the printing press in 1440, copying mansucripts was a painstaking task requiring weeks--sometimes months--of labor. As such, the task was traditionally left to monks, and few people considered it worth their time to copy manuscripts for mass distrubution. However, with the development of Gutenburg's revolutionary machine, copying became much less time-intensive, and making multiple copies of a work was no harder than making one.

In a political move, England enacted its first official "copyright" in 1556. In an effort to control printing of "heretical or sedicious material" [source] which might undermine the authority of the crown, Mary I awarded the Stationers' Company (a printer's guild) the exclusive right to print manuscripts. In return for the economic success she guaranteed the Stationers' Company, she exercised substantial control over what was and was not allowed to be printed. Until the law’s expiration in 1694, the Stationers’ Company held complete control over both the publishing and sale of printed works, establishing a publishing monopoly of sorts. The most significant thing to note about this "copyright law" is that it bears little resemblance to most copyright law today. Mary I granted exclusive rights to printers , not to the creators of the works being printed.

The Statute of Anne, 1710

The Statute of Anne was established by England’s Parliament in 1710. In a shift away from the former publishing monopoly of the past, the Statute of Anne granted authors fourteen years of exclusive rights to their work (accompanied by the option of another fourteen years under the renewal policy.) To obtain these rights, authors were required to complete a series of registrations, notices, and deposits.

The full title of the statute is worth noting: "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned."[source] The idea that copyright is intended to foster creative development and “encourage learning” has been at the heart of U.S. Copyright Law since its inception.

The United States Consitution and the Copyright Act of 1790

Congressional power to enact copyright legislation is granted in Article 1, Section 8, Clause 8 of the U.S. Constitution, which states

"The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [source]

As with the Statute of Anne, the justification for copyright law in the United States is rooted in utilitarian considerations. The goal of promoting "the progress of Science and useful Arts" is worth keeping in mind as we discuss the evolution of copyright law.

Questions to Consider:

Do you agree with the utiltarian rationale for the establishment of copyright law? Is protecting the "right" of a creator to exercise control over her work an important function of copyright law? Does such a right exist?

The United States passed its first federal copyright legislation in 1790. Drawing upon the policies that comprised England’s Statute of Anne, the Copyright Act of 1790 allowed authors fourteen years of exclusive rights to their work with the option for renewal for another 14 years. This act also required registration and notification of copyright to secure copyright protection and was eventually amended to cover emerging forms of media, particularly art.

U.S. Copyright Law in the 20th Century

Copyright Act of 1909

The Copyright Act of 1909 extended the duration of copyright protection to 28 years, with the option to renew for another twenty-eight. Most significantly, it "broadened the scope of categories protected to include all works of authorship" [source] rather than just complete manuscripts.

Copyright Act of 1976

The Copyright Act of 1976 forms the basis of modern U.S. copyright law. It extended copyright protection to cover "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." [source]

This act was the first to explicitly codify the "fair use" doctrine, and it did away with the requirements that a work be published and registered before qualifying for copyright protection. In addition, it extended the term of copyright protection to fifty years after the creator's death and codified the "exclusive rights" enjoyed by copyright holders.

Berne Convention

In 1988, the U.S. joined the Berne Convention, an international copyright agreement developed in 1886. Becoming a party to the convention required the elimination of the notice requirement, meaning that works produced after March 1, 1989 are not required to contain notice of their copyright in order to be protected. The loosening of formal registrations in the Copyright Act of 1976 was likely done in anticipation of becoming party to the Berne Convention, which requires a minimum of formalities surrounding copyright law.

Changing Technologies, Changing Laws: U.S. Copyright Law in the 20th and 21st Centuries

note:

Much of this section is based on the "Digital Copyright Law" section of "Intellectual Property in the New Technological Age."

The evolution of copyright law is fueled by the advent of new technologies. With the emergence of MP3s, filesharing, DVDs, and TiVo, U.S. copyright law has been transformed from an arcane body of legislation that interested few outside the field of intellectual property law to an arena of central concern for legal experts and everyday citizens alone. In 1980, U.S. copyright law was amended to explicitly include computer programs as copyrightable works. Other methods of adapting to new technology have been substantially less orthodox. Legislation such as the 1992 Audio Home Recording Rights Act, the 1997 No Electronic Theft (NET) Act, and the 1998 Digital Millenium Copyright Act, enacted largely to combat piracy of audio and video files, prohibits the development of technologies for the purpose of circumvention and increases the scope and severity of criminal penalties for piracy. Present-day copyright disputes pit music lovers against the music industry, film buffs against the MPAA, and online service providers against "content industries" ( Merges ) Nearly everyone is involved in the fray. Thus, what was once a realm of law relevant chiefly to artists and writers has become a political and cultural battle in which millions have a stake.

Audio Home Recording Rights Act, 1992

The Audio Home Recording Rights Act was established in response to the development of DAT and DCC (minidisc) technologies, which enable users to create lossless copies of audio CDs that can then be recopied and distributed. Powerful music industry and artist interest lobbies spurred the passage of the AHRA, which “prohibits the importation, manufacture, and distribution of any digital audio recording service that does not incorporate technological contraints...that block second-genaration digital copying” ( Merges ). The AHRA thus established the “personal use” standard, whereby an individual may legally make a personal copy of purchased copyrighted material but may not make additional copies for the purpose of distribution. The AHRA marked a significant shift >in the direction of U.S. copyright law. For the first time, copyright law actively placed restrictions on technology for the purposes of copyright protection.

No Electronic Theft (NET) Act, 1997

In the Supreme Court case United States v. LaMacchia , the court ruled that David LaMacchia, who operated a 'computer bulletin board' containing copyrighted content, could not be charged with criminal copyright infringement since he did not infringe copyright for commmercial purposes. For a long time, limiting criminal copyright infringement to instances of commercial use worked well. Prior to the explosion of the internet, few people chose to engage in the kind of mass distribution LaMacchia did unless for monetary gain; such an undertaking was time-consuming and labor-intensive. But the advent of new technologies facilitated the copying process, and people could engage in mass distribution “just because” with little cost of their time or energy.

Recognizing this fundamental shift in the nature of copyright violation, Congress passed the NET Act in 1997. The NET Act made the unauthorized distribution of copyrighted material a federal crime, whether or not that distribution resulted in (or was intended to result in) financial gain for the distributor. Because such distribution is now considered criminal activity, the U.S. Department of Justice was able to enlist “cybercrime units” ( Merges ) to conduct raids on well-known pirates.

Digital Millennium Copyright Act, 1998

The most well-known portions of the Digital Millennium Copyright Act (DMCA) are its anticircumvention prohibitions. The DMCA places strict limits on circumventing copyright protection measures such as encryption on DVDs, which was established as part of the DVD standard by a consortium of movie studios and DVD player manufacturers. There has been a great deal of opposition to this act. Opponents argue that it violates their right to fair use, since it inhibits using exerpts or screeenshots from films. Many are of the opinion that the DMCA is nothing more than a thinly veiled attempt at ensuring what are essentially monopolies in relevant industries and argue that, for any technology one wants to protect, one can claim that its circumvention violates the DMCA.

Title II of the DMCA "creates a safe harbor for online service providers" [source] by exempting them from copyright liability if they follow stipulated guidelines, including adopting a policy of terminating service to subscribers who routinely violate copyright law and removing or blocking access to content containing unauthorized use of copyrighted material upon notification of its existence.

Questions to Consider:

Recall the original utilitarian justification for copyright law, the idea that copyright protection fosters scientific and artistic development by giving creators incentive to create. Does the DMCA promote this aim? Why or why not?

Sources

Merges, Robert P., Peter S. Mennell, and Mark A. Lemley. Intellectual Property in the New Technological Age. 3rd Edition. Aspen Publishers, 2003.

Text of The Statute of Anne

U.S. Copyright Law (Title 17)

Text of The Digital Millennium Copyright Act

Text of No Electronic Theft Act

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