Copyright laws “under constant assault”, according to Rep. Berman

In the news today, we see that the backers of strong copyright laws have formed a lobby group called “The Copyright Alliance” and has the Recording Industry Association of America, the Association of American Publishers, the Motion Picture Association of America, Microsoft, Viacom and Walt Disney as members. No surprises there, these are all
well known supporters of strong copyright laws.

What I find disturbing, is the comment made by Rep. Howard Berman (D-Calif. Chair of the
House IP subcommittee) that there is a need to combat “the constant assaults on copyright law”.

Let’s see, in 1710, the Statute of Anne created a copyright applied to registered books for a period of 21 years. This is due to the fact that the authors of books intended for publication were often not getting anything. The Statute of Anne has as its very first line the reason that copyright was created: “for the encouragement of learning”, and
“for the encouragement of learned men to compose and write useful books”. You see? This
is a very important point, the purpose of copyright was not to protect “intellectual property” because there wasn’t even such a concept at the time. The purpose of the copyright was to give authors an incentive to create books.

The founding fathers considered this a good idea and in the Constitution gave Congress the right to likewise create a copyright law, which they did in 1790, again allowing authors to register their books and enjoy a 14 year copyright period, renewable for a second 14 year term. Did you catch that? Again only registered books, but they split the term into two, with the second half being optional. That way, many books went to the public domain 7 years earlier than under the Statute of Anne, but if a book was still profitable the author could have the copyright for an extra 7 years. This is a great compromise, moving more works into the public domain more quickly, while giving authors an even greater incentive.

After that the copyright laws continue to evolve, but I am sorry to say that it is almost entirely in the direction giving more and more power to the author and nothing to the public in return. In 1831 the initial term was extended to 28 years. In 1909 the second term was extended to 28 years, bringing the total to 56 years. Then in 1976, the copyright became good for the life of the author plus 50 years. At this point there is no longer even a pretext that copyrights are about incentive to authors; it is clearly about protecting future profits. This marks the shift away from a “limited right” towards “ownership” in my opinion. However, this also marks the point of the codification of “fair use”; that copyright does not give the author control of the ideas expressed nor prevent free discussion of the copyrighted work.

Then in 1988, the United States became a signatory of the Berne convention, which removed the requirement that the work be registered or at least marked as copyrighted. In one fell swoop, the vast majority of works went from being in the public domain to being copyrighted for a hundred years or more. So, in a short 200 years, we went from a small designated set of works being restricted for 14 or 28 years, to all works automatically restricted for up to 150 years or so.

Wait, it gets worse. The Bono act added another 20 years and the DMCA made it a crime to
figure out ways to get around copy protection or even tell anybody about ways to do so.

So, Mr. Berman, we can see that the copyright laws are clearly in need of your protection. All attempts to rationalize these laws (such as allowing works that nobody cares about at all to go into the public domain earlier) have been thwarted thanks to the efforts of public servants such as you.

As a side note, if we consider the founding fathers as authors of the Constitution, under the current laws the copyright of the Constitution would not have run out until 1906. Astounding!


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