Is Copyright Achieving Its Purpose?
Copyright is not generally seen as a major political issue. It is rare to hear politicians speak about it, and it is certainly not a major aspect of their campaigns. The Democratic Party does not mention it at all in their platform (Democratic Party Platform Committee), and the Republican platform contains only one passing mention in reference to international relations (Republican Party). However, it is an important issue that deserves more attention than it currently receives – the current laws are far too strict and have many negative effects. Copyright laws should be amended to loosen restrictions and shorten terms.
First, copyright restrictions should be loosened because they place an undue burden on the freedom of the public. Copyright must limit freedom to some extent to achieve its legitimate aims, but current copyright laws make many more restrictions than is necessary. Many of these restrictions influence everyday life, even in situations that do not seem to involve copyright at all.
Works not covered by copyright, referred to as being in the public domain, bring many benefits to the public. For example, the nonprofit Project Gutenberg publishes e-book editions of over 70,000 books at no cost to the public. The vast majority of their collection consists of “older works for which US copyright has expired” (Project Gutenberg, home page). Another project which uses public-domain works in a way that is beneficial to the public is LibriVox. This organization publishes audio versions of public-domain books read by volunteers, also at no cost (LibriVox). Although it is clear that free access to books is useful, some may question whether it is necessary for works to be free of copyright in order to bring these benefits. Why is it necessary to download books online when it is possible to check them out from a library for free? An essay on Project Gutenberg’s Web site explains why. Public-domain or freely-licensed works give the public rights to use the work beyond simply reading the work. Receiving a copy of a work under full copyright restrictions at no cost gives the recipient no rights except permission to read privately. In contrast, a person with a copy of a public-domain or freely-licensed work is allowed to copy, distribute, modify, or otherwise adapt the work (Project Gutenberg, “No Cost, or Free?”). (A freely-licensed work is one that is under copyright, but has been released by the copyright holder with a license that grants permission to distribute and modify the work with few or no restrictions.) If copyright terms were shorter, organizations such as Project Gutenberg and LibriVox would be able to include more recent works. Copyright terms should be shortened because long terms prevent many uses of works that benefit the public.
Another problem with modern copyright is the negative effects of so-called Digital Rights Management (DRM) software. DRM is nominally designed to prevent illegal copying and distribution of copyrighted works by restricting the methods by which the user can access the information. For example, it may allow a user to read an ebook, but not share copies of the book or take screenshots of it. However, DRM is problematic because it also limits legitimate uses. For example, a DRM program that prevents the user from copying and pasting text from an ebook in order to make it more difficult to duplicate the book illegally will also make it difficult to copy excerpts from the book for legal purposes such as commentary and criticism that are considered “fair use.” It also prevents the creation of software to access the work on computer platforms that are not otherwise compatible. More importantly, DRM may impede the development of assistive technologies for disabled people; these technologies provide functionalities such as screen readers for blind users or closed captions for deaf users. DRM is problematic because it prevents legitimate uses of copyrighted works.
DRM also restricts private property rights. For example, as explained by an article from the popular online technology magazine MakeUseOf, many smartphones contain DRM that is designed to prevent the user from replacing the operating system. On these phones, only the manufacturer has the ability to replace core parts of the system (Hoffman). While most users do not care about changing the operating system, preventing those who do from making these changes is problematic because it limits the phone owner’s rights to his or her own property. A similar, but even more important, issue relates to automobiles and other machinery. For example, as described by Emma Roth in an article for The Verge, John Deere tractors have computer systems designed to prevent certain “unauthorized” repairs; these systems are a form of DRM. Repairs must be “authorized,” not by the tractor’s owner, but by John Deere; these systems deny farmers the right to repair their own equipment. John Deere has recently signed an agreement with the American Farm Bureau Federation to allow farmers to repair tractors, but other manufacturers can still limit repairs, and there are several weaknesses in the agreement that allow John Deere to regulate the means by which repairs are performed (Roth). While this agreement is helpful to farmers, it does not change the fact that a manufacturer should not have the right to dictate what customers may and may not do with equipment they own. DRM is harmful because, in addition to preventing legitimate uses of copyrighted works, it also encumbers private property rights.
DRM is almost always relatively easy to circumvent, however, because of inherent limitations of computer science. At least part of the software must run on the user’s computer in order to be useful, and this means that a sufficiently knowledgeable user always has some way to manipulate the system. Of course, this requires in-depth knowledge of computer programming, but once one person has created a program to bypass the DRM, this developer can share his or her code to allow the public full access to the work. Although this does make infringement easier, it also enables legitimate uses such as using speech synthesis software to read a book out loud for a blind person, accessing the work on an otherwise incompatible device, or replacing a smartphone’s operating system. Because it can virtually always be bypassed, DRM is ineffective, but not, on its own, necessarily harmful to legitimate users. It is usually merely an annoyance, both to infringers and legitimate users. The problem arises because the Digital Millennium Copyright Act, the main current US copyright law, makes it illegal to circumvent DRM without the permission of the copyright holder for any reason, unless the circumvention is included in an exemption granted by the Library of Congress (United States Code, title 17, sec. 1201). (Most other countries have similar laws.) This is the case even when the goal is to make an otherwise noninfringing use of the work. Banning DRM circumvention does not make any previously legal yet harmful activities illegal, while it does make otherwise legal and beneficial uses illegal. Actions such as distributing copies of the work would be copyright infringement regardless of whether or not DRM circumvention were illegal, and the ban on circumvention also prohibits uses which are otherwise legal. Some beneficial uses, such as accessibility tools for disabled users, are covered by exemptions, but others, such as accessing works on incompatible devices or repairing vehicles, are not. Copyright laws should be amended to remove the prohibition on DRM circumvention.
Although current copyright laws significantly restrict the freedom of the public, one could argue that this does necessarily mean they need to be changed. If authors have a right to control the use of their works, then copyright is working as intended. However; this is not the case; today’s copyright laws contradict the constitutional purpose of copyright. The federal government’s authority to enact copyright laws is established by the Copyright and Patent Clause of the Constitution, which grants Congress the power “[t]o 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” (Constitution of the United States, art. 1, sec. 3, cl. 8). In the 1834 case Wheaton v. Peters, the Supreme Court ruled that the Copyright Clause authorizes Congress to create a new right, not to “protect… an acknowledged legal right.” The court pointed out that the word “secure” is applied equally to authors, who hold copyrights, and to inventors, who hold patents. They further note that “it has never been pretended by anyone either in this country or in England that an inventor has a perpetual right at common law to sell the thing invented.” (English law is relevant because the US Federal government and all states except Louisiana accept English court rulings prior to 1776 as precedent if they are not contradicted by newer American laws; this is referred to as common law.) Thus, because the word “secure” is clearly referring to the creation of a new right in the context of inventions, the only logical conclusion is that it is also referring to the creation of a new right with regard to authors. There is a common-law right to be the first to publish one’s own writings, but this is entirely separate from copyright in published works. Thus, the common-law system does not recognize a natural right to control publications of one’s writings after the initial publication (Wheaton v. Peters).
Lawrence Lessig, a legal scholar, former constitutional law professor, and leading copyright-reform activist, makes another argument against the view of copyright as a natural right. He points out that the Constitution, in the Takings Clause of the Fifth Amendment, says that “private property [shall not] be taken for public use, without just compensation” (Constitution of the United States, amend. 5). In contrast, the Copyright Clause says that copyrights may be “secur[ed only] for limited Times”. In other words, the Constitution strictly limits the taking of physical property for public use, but it mandates the taking of copyrights and patents for public use after a limited time. Lessig argues that this shows that the Founding Fathers did not hold the view, widely promoted by advocates for strict copyright today, that copyright is legally or morally equivalent to physical property. Rather, they saw it as a fundamentally different kind of right, one which is not entitled to the same degree of protection as physical property rights (Lessig, 117-20).
Having determined that copyright is not a natural right, the next consideration is whether or not current laws further the purposes for which copyright is established. Any law should be written in a way that does not impose excessive restrictions that are not necessary to achieve its goals, but as Lawrence Lessig argues, this principle should be applied more strictly to copyright because it inherently limits the First Amendment rights to freedom of speech and of the press. Because copyright laws do limit constitutionally guaranteed freedoms, albeit for a legitimate aim, they should be held to stricter political, if not legal, scrutiny than laws which do not burden constitutionally-protected activities (Lessig, 128). As mentioned earlier, the purpose of copyright, as stated in the Constitution, is “[t]o promote the Progress of Science and useful Arts.” Similarly, the Copyright Act of 1790, the first US copyright law, states its purpose as “the encouragement of learning” (Copyright Act of 1790). Clearly, the ultimate goal of copyright is not to reward creators; this is merely a means to the true end of promoting the creation of new works. Copyright exists solely for the benefit of the general public; the benefits it brings to creators are only a means to this end.
A copyright restriction that does not provide an incentive to create new works does not further this purpose. Current copyright laws are fundamentally flawed because they are created with the primary goal of giving copyright holders control over their works, often at the expense of the public, in direct contradiction to the constitutional purpose of these laws. Derek Khanna, a fellow of the Information Society Project at Yale Law School, points out that this is in large part due to the influence of lobbyists representing large media companies such as Disney (Khanna). Of course, it benefits these companies to have copyright terms repeatedly extended and other restrictions tightened, and these large companies have a much larger political influence than start-up companies, independent content creators, and others who have much to gain from the public domain. The political influence of these large corporations has resulted in copyright laws that favor established copyright holders over everyone else, having exactly the opposite effect of the true goal of copyright.
One way in which today’s copyright laws hinder, rather than advance, “the Progress of Science and useful Arts” is by making it difficult to reuse existing works in new ones. Of course, this must be limited to some extent by any copyright law, but current laws are far too restrictive in this area. Lessig notes that the Copyright Act of 1790 helped to promote creativity by taking a loose stance toward derivative works (Lessig, 170-1). If an author wanted to reuse portions of another book in a way that did not make the new book effectively a copy of the prior work, this reuse was permitted under the 1790 Act with no license required. Allowing such reuse is consistent with the purpose of copyright; it is unlikely that the existence of a work incorporating portions of, but not replacing, another work will significantly decrease sales of the original, while allowing this type of use does promote the creation of new works. Today’s laws do not allow reuse of other works, except under limited exceptions for “fair use,” which mostly cover non-profit educational use and commentary and criticism of the work being quoted; although the fair use doctrine is important; it is quite narrow. The benefits of derivative works are recognized even by many who support strong copyright; an article in WIPO Magazine, published by the World Intellectual Property Organization, a pro-copyright agency of the United Nations, acknowledges that modern cultures have developed through “remixing” of prior cultural works, and that current copyright laws impede further remixing (Rostama). Copyright laws should be changed to allow more reuse of existing works in ways that do not affect the market for the original works.
Although a strong political case can be made against current copyright laws, moral and ethical issues are also relevant. For example, some may be concerned that making copyright less restrictive would facilitate increased plagiarism. This is not the case, because plagiarism is not the same thing as copyright infringement. Black’s Law Dictionary, the most widely-used American legal dictionary, notes that plagiarism essentially involves “passing [another’s works or ideas] off as the product of one’s own mind” (Black, 1035). The article “Is Plagiarism Illegal?” on Plagiarism.org notes that copying from a public-domain work without attribution is not copyright infringement, but is plagiarism. Likewise, long quotations from copyrighted works used with attribution are not plagiarism, but may be copyright infringement (Plagiarism.org). The essential problem with plagiarism is not that a writer uses someone else’s work, but that the writer claims to be the creator of the reused work. Unlike copyright, plagiarism is not fundamentally about copying; it is about lying, which is unethical but typically not illegal. Because plagiarism is mostly penalized academically, not legally, loosening copyright restrictions would not enable increased plagiarism.
Although there is, legally speaking, no natural right to profit from one’s creative work, some may believe that there is a moral right to do so, and oppose copyright reform on this basis. It is true that entirely abolishing copyright would interfere with such a right, if one exists, but shortening terms and loosening other restrictions would not necessarily be problematic. Terms shorter than those created under current laws could still provide ample time to earn profits from works, and restrictions such as the prohibition on DRM circumvention are certainly not necessary for this purpose. Even if one does believe there is a moral right to profit from creative works, this does not mean that copyright must be maintained in its current form.
What is the best way to promote remixing and other beneficial uses of works, while still achieving copyright’s legitimate aim of creating an economic incentive to create new works? One helpful step would be to shorten copyright terms. Under current laws, copyright lasts for seventy years after the last surviving author’s death. For works published anonymously or pseudonymously, or created for hire, the copyright expires 95 years after publication or 120 years after creation, whichever comes first (United States Code, title 17, sec. 302). (These rules apply to works created in or after 1978. Other rules apply to works created before then.) Clearly, shorter terms would be sufficient to incentivize the creation of new works. These long terms are one of the aspects of copyright law which Derek Khanna notes as being heavily influenced by lobbying by large media corporations (Khanna). Shorter terms would bring increased benefits to the public without reducing the incentive created by copyright. A term of thirty years, for example, would allow sufficient time for substantial money to be earned if the work is profitable, while also benefiting the public by having works enter the public domain sooner. Such a term would be similar to the maximum 28-year duration under the 1790 Act. Another option would be to have copyright last for the entire life of the author, but no longer. Either of these options would have various benefits and drawbacks, but either would be better than the current term lengths.
Another beneficial change would be to create a remixing exemption similar to that included by the Canadian Parliament in the 2012 Copyright Modernization Act. This allows non-commercial remixing if the source is credited, the original work is not itself a violation of copyright (or the remixer reasonably believes that it is not), and the new work “does not have a substantial adverse effect, financial or otherwise, on the exploitation… of… [or] market for [the original work], including that the new work… is not a substitute for the existing one” (Copyright Modernization Act, sec. 29.21). A similar exception in American copyright law would further the constitutional goal of copyright by facilitating the creation of new works without adversely affecting the economic incentive.
Finally, it would be beneficial to legalize circumvention of DRM. As described earlier, this would not legalize activities traditionally seen as copyright infringement, but would allow beneficial uses of works and restore the rights of owners of private physical property. Removing the ban on DRM circumvention would be an important step that could be taken toward restoring the traditional concept of copyright, as this portion of the law goes far beyond excessive restrictions on reuse of works, and regulates actions that are only distantly related to copyright in the traditional sense. As explained earlier, this change on its own would not legalize any actions that fall under the traditional scope of copyright, so even those who believe that authors should have long-term, extensive rights to their works could support this change. Legalizing the circumvention of DRM would certainly not solve all of the problems of today’s copyright system, but it would be an excellent start.
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