Time to Reform Copyright Law?

The Economist certainly seems to think so:

Parliament had given them rights, but it had set a time limit on them: 21 years for books already in print and 14 years for new ones, with an additional 14 years if the author was still alive when the first term ran out. After that, the material would enter the public domain so that anyone could reproduce it. The lawmakers intended thus to balance the incentive to create with the interest that society has in free access to knowledge and art. The Statute of Anne thus helped nurture and channel the spate of inventiveness that Enlightenment society and its successors have since enjoyed.

Over the past 50 years, however, that balance has shifted. Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the “Mickey Mouse Protection Act”. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe. Such arguments should be resisted: it is time to tip the balance back.

Ring On!

In these tight economic times (and sometimes even before), everyone's trying to milk everything for more money. The American Society of Composers, Authors, and Publishers brought a case trying to get royalties whenever a cell phone went off, on the argument that ring tones are protected works of art, and that when they ring, particularly in public, they are a "public performance" within the meaning of the Copyright Act.

They lost that argument this month. The trial court ruled that "when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly." The Electronic Frontier Foundation has more.

Copyright vs. Freedom of Expression

Cathy Young explores the tension between intellectual property and free expression in the context of the "sequel" to Cather in the Rye:

The U.S. Constitution authorizes Congress to enact copyright laws "to promote the progress of science and useful arts"; the Copyright Act of 1790 mentions "the encouragement of learning." Yet copyright law in its present form often seems to do the exact opposite. A few years ago, Margaret Mitchell's estate tried to stop the publication of a novel called The Wind Done Gone retelling Gone with the Wind through the eyes of a black slave. The grandson of James Joyce, Stephen Joyce, has used his position as administrator of the writer's estate to terrorize scholars, block the staging of a play by Joyce and readings from his work at a festival, and kill a multimedia project based on his grandfather's famous novel, Ulysses.

Borrowing is an essential part of the creation of culture. If we eliminated all derivative works, we would lose, among other things, Shakespeare's Romeo and Juliet (based on a story by an Italian writer), and Jean Rhys's acclaimed novel Wide Sargasso Sea, the story of Mr. Rochester's mad wife from Charlotte Bronte's Jane Eyre. Of course, classics have also inspired mediocre sequels or reimaginings, such as third-rate novels that continue the story of Elizabeth and Mr. Darcy from Jane Austen's Pride and Prejudice. But that's for readers to decide.

Copyright terms of protection have certainly extended, thanks in no small part to the efforts of the Mouse House, and reflects a trend toward protecting established producers of culture, effectively raising the barrier of entry into the creative space. Some of the arguments are understandable, such as a desire on the part of authors to protect their characters, much like the rationale behind the doctrine of droit d'auteur in European systems.

The question is, at what point does the protection cease to reward innovation, and ends up rewarding those who rest on their laurels?

RIAA Settles Suit Against Luddite

In an action brought against Mavis Roy for sharing music online, RIAA member Universal Music Group was forced to settle because Ms. Roy did not even have a computer at the time of the alleged infractions.

The label dropped its case after evidence provided by anti-piracy snooping firm MediaSentry was successfully challenged by the defense's expert witness Dr. Sergey Bratus. Among other key problems with the data, the defense pointed out that Roy didn't own a computer at all at the time of the supposed infringement and that it wasn't until a letter appeared that she was aware of any possible action.

Somebody is probably losing their job for this!

Google Compromises

L. Gordon Crovits writes in the Wall Street Journal that the recent compromise between Google and the book industry is the former's concession that, contra its motivating spirit, information is not always free.

Copyright is critical to provide property rights in books, music and other forms of intellectual property, contrary to those who claim that somehow everything must be free just because it's on the Web. But content owners also belatedly realize that simply suing consumers who find new, convenient ways to access content online is not as good as finding new business models to profit from customer interest that technology makes possible.

Under pressure from all sides, Congress and the U.S. Copyright Office had dithered about so-called orphan works, books whose owners or authors are hard to find. Congress toyed with a test of requiring payment after a "reasonably diligent search" for the owners.

This vague standard "would have been a classic Washington solution to the problem," Lawrence Lessig said in an interview, "meaning it would have been a nightmare." Mr. Lessig, a Stanford law professor and author of several books on copyright, says the registry is a huge breakthrough because it ends uncertainty. "Establishing who owns what is real progress," he says. "An efficient solution can be found once there is settling of property rights."

Google still claims it has the right to index content on the Web for its search engine. Exactly what snippet or excerpt goes too far for fair use in other cases remains unclear. Under the registry it will set up, the owners of the intellectual property can set prices for book downloads, have a Google algorithm set prices, or refuse access altogether.

The market solution means Google will now offer millions of books for sale, sharing the proceeds with publishers and authors. Books long out of print will be searchable and available for a fee.

This is a sharp break from Google's approach of gaining access to content such as newspaper and magazine articles simply by providing advertising-supported links, though the company warns not to read too much into this precedent of agreeing to make direct payments for content or encouraging its users to pay for content online.

This shift by Google led Peter Osnos, founder of PublicAffairs books, to wonder if the book settlement could have lessons for other owners of content. "Google has now conceded, with a very large payment, that information is not free," Mr. Osnos wrote for the Century Foundation. "This leads to an obvious, critical question: Why aren't newspapers and news magazines demanding payment for use of their stories on Google and other search engines? Why are they not getting a significant slice of the advertising revenues generated by use of their stories via Google?"

Sometimes, maybe it's best when private entities are forced to figure out ways to deal with each other.