History of Copyright - MLA2011 Presentation

History of Copyright

Nick Lavely

Reference Librarian

Metro State.

Copyright is an agreement - the creator can have all the proceeds from her creation for a while, but society want free access after that.

The Past:

Plautus - 1st person to insist on being payed for using his work.

1710 - British Statute of Anne - very similar to a lot of current copyright law.

Each American Colony came up with their own copyright law. This was a very important issue to the colonies. There is, in fact, a copyright clause in the Constitution: “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.”

1790

With the first congress came the first copyright law. Closely modeled on the British Statute of Ann.

• Covered maps, charts, and books.
• No prior materials were covered – created a public domain.
• Term was 14 years - renewable once for another 14 years.
• Requirement for a depository copy held by the Library of Congress.

1831

• Widows and children could renew.
• Term grew to 28 years, renewable once for 14 years.

1870

• Expanded author’s rights to include translations & dramatic adaptations.
• Included photographs - the hot new technology.

1906 - 1907

• Congress debated perpetual copyright. Mark Twain was a big fan.

1909 – New copyright law.

• Introduced corporate authorship and works-for-hire copyright.
• Term 28 years renewable once for another 28 years.

The Corporate Authorship and Works-for-Hire clause gave publishers (like newspapers) and production companies (like movie studios) the ability to own the rights of everything that was created under the auspices of their companies. It took away the automatic right for the creator to own what they created, which had previously been assumed by copyright law. All studios took advantage of this. D. W. Griffiths used employment contracts to force creators to sign away rights. It corporatized creativity.

“Authorship could not be considered mystical or romantic after 1909. It was simply a construct of convenience, malleable by contract.” (‘Copyrights and copywrongs: the rise of intellectual property and how it threatens creativity’ by Siva Vaidhyanathan, 2003, p. 102.)

1912

• Amended to include motion pictures.

1952

• Amended to include lectures, sermons and performance of nondramatic literary works.

1971

• Amended to include sound recordings.

New technology = new copyright law.

In this period congress would keep expanding copyright for 3 years when necessary so nothing was entering the public domain. This is messy; it creates a lot of orphan works, questions as to what was actually renewed, who has right to claim, etc. Hard for creators to keep up with.

1976 – New copyright law.

• Included any media known or unknown
• Established Fair Use and the 5 Rights of Copyright Holders
• Established library archive rights.
• Registration not required
• Term: life + 50 years, 75 years for works made for hire.

The 5 Rights of Copyright Holders are:

• To reproduce
• To prepare derivative works
• To distribute - sell, rent, lease or lend
• To perform publicly
• To display publicly

4 factor test of Fair Use from Section 107 of the Copyright Act:

• Purpose and character of the use – how creative? Fictional or Factual?
• Nature of the copyrighted work
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole
• Effect of the use upon the potential market for or value of the copyrighted work.

Fair use is determined by case law not public law (law made by the legislature and signed by the president).

Offers restricted rights for copying, distribution, book to movie - make own version

It’s all right to consume media - borrow from library.

Fair use can encompass commentary, parody, limited educational use. It’s nebulous.

Library archiving - Single copy (not digital) for purpose of law

The default is - copyright on. Fair Use switches the paradigm.

Arguments to extend copyright:

• 56 year term is not long enough for an author and their dependents to gain the economic benefits.
• Life expectancy has increased.
• Growth in media has made older media more popular.
• The public already pays for public domain materials.
• Renewal process is time consuming.

1988 - Sonny Bono copyright extension.

• Steamboat Willie (earliest Mickey Mouse cartoon) was about to come out of copyright.
• Copyright holders – with Disney in the forefront, got copyright extended by 20 years.

Nothing new will pass into public domain until 2019.

The copyright agreement is out of balance.

Now

1998 - DMCA

• Signed by President Clinton.
• Works side by side with copyright.
• Limitation against reverse engineering & defeating DRM.
• Anti-circumvention rules.
• Fair use is not a defense.
• Term: ?

Library archiving - Section 108 update - 3 copies, digital; can copy the work if original format becomes obsolete.

What’s obsolete? 8-track is not an obsolete format, nor are LPs - as long as you can find something to play it on, it’s not obsolete.

Basically the DMCA means perpetual copyright as long as a lock exists.

Chilling effects:

• On research, publication, and journalism.
• On legitimate and/or fair use.
• On competition and reverse engineering.

Copyright/DMCA being used as a sword. People are using the DMCA to force removal of unfavorable comments. It’s easy to subvert fair use.

“It appears that the copyright laws are being used as part of a massive collection scheme and not to promote useful arts.” Judge Bernard Zimmerman

Medical Justice is a company that does medical forms. One of the forms you fill out at your doctor’s office might be one of their forms saying that if you review your doctor online, you give up your copyright on the review.

Current academia cases:

• Cambridge U Press v. Patton - Publishers are suing Georgia State University due to the amount and accessibility of content on eReserve system.
• Ambrose Video Publishing vs. University of California - Publishers are suing UCLA for copying a DVD and streaming it to students.
• Authors’ Guild et al vs. Hathi Trust - AG is suing a consortium of universities for sharing digital copies of their works, even though there’s lots of security in place to make sure there’s no access to the full text.

EBooks

• Overdrive, HarperCollins and the 26 loan cap.

There’s a loss of control at all levels. Licensing agreements are also used to subvert copyright laws and rights.

The current use of copyright is locking down our culture.

GoogleBooks (GB) is a fair use case.

• GB changes the paradigm and provides non-linear access by searching the whole card catalog – indeed the whole collection - for a term simultaneously. Highly transformative and does not supplant the need for the original.
• GB is basically creating an index, it is not creative.
• GB requires entire book to be scanned, but the database is secure and only a small portion is shown if copyright is an issue. It’s similar to a quotation. Snippets are not likely to effect purchasing. No need to prove absolute zero damage. Publishers have seen financial gains on GB.

The GB Settlement:

• Will give Google a de facto monopoly
• Setup is similar to ASCAP or BMI without the government controls
• What about library access? Licensing? Orphan works? $150 million immediately? No government oversight? It doesn’t address a lot of questions.
• It was settled out of court.

Afterword

American judgments are way out of proportion to the crimes:

• Sony BMG v. Tenenbaum (student) - He was sued for $675,000 for pirating 31 songs.
• Capitol vs. Thomas - as high as 1.92 mil for 24 songs. This is still in court – decision coming down.

Sweden – someone paid 30 dollars for pirating 24 songs. Much more reasonable.

7 things Google isn’t censoring.

Millions of people have a direct stake in copyright law.

48 hrs of video are uploaded to YouTube every minute.

Since 1909, copyright law has encouraged lawyers for publishers, record labels, motion picture studios and distributors to write law that has benefited them.

ACTA - Anti-Counterfeiting Trade Agreement:

• Taking DMCA global.
• Removing safe harbor exceptions unless ISPs enforce three strikes policy.
• Notice and takedowns.
• Mandatory prohibitions on breaking DRM, even for fair use purposes.
• Brings in the government to enforcement private rights – which is ridiculous.

The agreement was passed on 9/30/11 without ratification, going through the Senate, or going to the people.

Wikileaks ha shown how the US has influenced copyright in other countries.

The UK wants to extend copyright for 20 years – The Beatles’ copyrights are ending soon.

It’s all being settled out of court. Nothing is going to court.

--Melissa @ Central