January 11, 2011
My Turn by Christopher Weaver

Christopher Weaver is a Faculty Advisor to the C3 Consortium and teaches in the Comparative Media Studies Program at MIT. He founded Bethesda Softworks in 1985 and was the Chief Engineer to the Congressional Subcommittee on Communications from 1980-1984. As both an IP creator as well as advisory government regulator, he brings a unique perspective to the topic of copyright and "fair use".

Chris and I had an e-mail string going recently regarding the recent C3 Research Memo on "piracy" and the future of television.

At some point in our e-mail exchange, Chris recommended I go back into the C3 vault and fish out this article, entitled "My Turn," that he contributed to the C3 newsletter in 2006 and includes a quote from a similar C3 piece by Prof. William Uricchio. In the piece, Chris provides an overview of the centrality of copyright protection in the concept of creativity and invention as a "central part of the social wealth that the Founders envisioned would supply incentive and vibrancy to the fledgling colonies whereby intellectual property development created by a special few would ultimately be owned by all."

My Turn by Christopher Weaver

If Castaneda said that, "those who do not read history are doomed to repeat it," then Professor William Urrichio's reference (in a 2006 MIT C3 Consortium newsletter article) to the Statute of Anne and its influence on the first US copyright statute of 1790 is critical to understanding what has flowed from that time:


"The motives behind the document generally considered to be the cornerstone of our notion of copyright, England's 1710 Statute of Anne, appear in its title: 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. The encouragement of learning ... such high-mindedness was not the exclusive prevue of the British. Some 80 years later, America's first federal copyright regulation, the Copyright Act of 1790, also pointed to "the encouragement of learning" as its stated goal. Given the centrality of learning to the very existence of copyright, it seems strange that we have today reached a situation where copyright is an active barrier to the educational mission, and more than ironic that media education in particular is hamstrung by legal complexities and media producers' fears.

Both the originating British and American legislation also share another characteristic: term of copyright protection. In an era when it would take a Boston-based author more than a week to get a manuscript to a New York-based publisher, and when book circulation was accordingly slow, the Copyright Act of 1790 limited the term of protection to fourteen years (most of it, one assumes travel time), renewable for an additional fourteen (the 1710 British statute afforded slightly more protection with an original twenty one years of coverage, renewable for fourteen). Not altogether logically, now that the physical trip can be done in a few hours or less, and information transfer can take place instantly, we have dramatically expanded, not reduced as one might expect, the term of protection. There's something about a name, and the Sonny Bono Copyright Term Extension Act of 1998 says it all. This act, otherwise known as the Copyright Extension Act, stretched the steadily accruing copyright term to the life of the author plus 70 years for post-1978 works. In the case of a work for hire, the term can be as long as120 years from the date of creation. And the pressure is on for continued extension. Referring to the constitutional prohibition of perpetual copyright, Jack Valenti famously stated his goal as 'forever less one day.'

The extension of the classical notion of copyright -- from at best a small portion of the author's life to ever-longer periods of afterlife coverage -- runs roughly in tandem with the growing political and economic strength of the media industry. And it falls in tandem as well with a more general mid-19th century shift in media application from predominantly informational (scholarly and fictional literature, charts, maps) to entertainment (popular literature, photography, music, film). Lurking in this change as well is the shift from the printed word, which seems to have a fairly well established set of citation and reprinting protocols, to image and sound, which seem still to have eluded our conceptual grasp. Copyright precedent is clear enough when using citations or verbatim sections of books for our classes and scholarly writing, but try to include a film clip or even a frame enlargement from a film, and the threat of litigation is immediate. When it comes to media beyond the printed word, conformance with the four point "fair use" defense seems to make little difference. Digital media have added further twists, with legal battles over the ownership of programming languages (unthinkable with ordinary language), sound sampling, and even once legally allowed provisions for home copies. And they complicate our notions of what's really being protected (in moving from a 35mm film to an ultra-low resolution copy on Second Life, should information degradation play a role in what is actually being copyrighted?)."


It is important not only from the standpoint of copyright holders but copyright grantors, because that is where I believe we in the United States lose sight of the original intentions of the Founding Fathers.


So important was the concept of authorship and invention, that in the very first Article of the US Constitution we find clear language stating:

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.[1]

It is clear the Founders considered the issue of invention and authorship so important that they wrote this clause into the Constitution just after the establishment of the postal system and prior to addressing a regional judicial system. The whole concept of creativity and invention was a central part of the social wealth that the Founders envisioned would supply incentive and vibrancy to the fledgling colonies whereby intellectual property development created by a special few would ultimately be owned by all. This creative development was to be fostered by the public "loaning" certain rights to Inventors and Authors for a limited period of time so as to provide those Inventors a means of capitalizing upon (and profiting from) their creations—recognizing that all the while the underlying principle behind this temporary grant of license was that the true purpose of the system was to provide a means whereby invention was promoted so as to ultimately revert to the "common good" in a reasonably short period of time. In all the years from the late 18th century to the present, it is important to understand that in the United States "we the People" have been the ones from whom these numerous "carve out" rights have consistently been taken. Once viewed in the light of public ownership and not corporate entitlement the social experiment of purposely limited protection of invention and creative development takes on a very different dimension.

Public information policy has even more importance in an age when information is moved through bits and not atoms. Until recently, it was assumed that one could buy an author's copywritten work, discuss it, perform it, trade it, loan it, reference it, donate it or resell it. There was previously assumed to be an underlying tension between the rights of the public weighed against the limited rights of the author. That underlying assumption is now being challenged with an attempt to value (read control) an author's rights far in excess of the general public. For copyright holders to hijack public policy to the point of de facto control over their works would be the ultimate myopia on the part of our government. As recently as thirty years ago, it was accepted that copyright was imperfect and provided only limited controls over protected works. Special interests have created protected positions for themselves at the expense of the general public and the inherent tension between the public good and author's rights promises to spiral out of control if there is not a serious reexamination of public need versus corporate want. As powerful and compelling as the promise of the internet and related digital media are, what are the ramifications to freedom of access and thought when this same technology makes possible a type of monitoring that can restrict, track and report just as easily as allow freedom of access? With digital technology, copyright holders can truly control access to their work. But with recent congressional legislation such as the DMCA[2] and the CTEA[3], as well as the European EUCD[4], where does an author's ability to control access on virtually every level benefit the public and promote the progress of science and useful arts? Digital technology has allowed individuals a power they never possessed before (such as being able to print or record one's own copy of a work), even as it has provided a technical means for IP owners to argue enforcement of ever more invasive (read unlimited) rights. The dynamic that has worked in some measure for over one hundred forty years has to change to reestablish a new balance—one that works for authors but must also be palatable to an increasingly confused public. How can one be expected to obey laws they do not believe or cannot understand?

These are heady issues that have no easy answers. There is an ongoing battle being waged by special interests who want to profit from works long after what would appear was contemplated by the Founders. There are independent groups of legal scholars who have taken a stand to try and maintain the balance as well as free speech advocates such as the EFF[5] and groups responsible for overseeing international IP.[6] But unless a serious dialog is started not between warring copyright attorneys but the general public and their representative government(s) we, the People, stand to lose something crucial to what the Founders assumed was a basic right. The stakes are that high.

1 - USC, I, §8, cl.8

2 - Digital Millennium Copyright Act

3 - European Union Copyright Directive

4 - Electronic Frontier Foundation

5 - World Intellectual Property Organization (WIPO)