With every new technology that facilitates the copying or dissemination of creative works—photocopiers, tape recorders, video recorders, and computers—there are people who have predicted the death of copyright. Some of today’s cyber-prophets claim that the Internet represents the end of copyright as we know it. You can’t regulate the Internet, we’re told. The Internet was designed to withstand nuclear attack, we’re told. The Internet treats censorship or regulation as a malfunction, or damage to the system, and simply routes around it. There are no boundaries in cyberspace, and no government or entity can possibly enforce property rights there. Two hundred-year-old systems of copyright and the interests they protect are obsolete.
Well, that assumes that copyright has been standing still for the last two hundred years. Yet hardly anything could be further from the truth. In the past century, copyright has changed dramatically in response to repeated technological revolutions in the way we create and replicate our literary and artistic works.
We’ll eventually get to a discussion of the Internet. But first, we’ll take a look at how copyright, throughout the twentieth century, has in fact been adapting to the new technologies. In Part One of this book, Copyright and Technology, we’ll focus upon five different technologies, and see what effect each of them has had upon the preexisting law. We’ll study (1) the book publishing industry and photocopying, (2) the music and sound recording and radio industries, (3) the movie and television industries, (4) the computer and computer software industries; and only in the fifth chapter will we be ready to deal with (5) some of the interesting challenges raised by multimedia and the Internet.
Each of the industries to some extent has followed a similar birth and growth pattern: a new technology radically alters the economics of an existing industry, while giving birth to a whole new industry. In the case of books, it was the photocopying machine. In the case of music, it was the invention of the phonograph, and later the development of radio and the inexpensive home tape recorder. In the case of drama, it was the invention of the motion picture, and later television. In the case of computers and computer programs, the new industry altered the economics of a wide range of creative works, from books and paintings to music and video. The explosive growth of the Internet likewise promises (or threatens) to alter every aspect in the creation and distribution of a wide range of works.
In each of these contexts, the law has had a range of responses to the new technologies. In some cases, the new industries have adapted pretty well on their own, without much need for judicial or legislative intervention. In other cases, it was up to the courts to resolve the basic issues by applying or adapting existing copyright principles. In some cases, Congress has had to amend the law to make the old principles fit the new technology. Whatever the vehicle for change, the result is that copyright law doesn’t look at all like it did two hundred-and-ten years ago, when Congress passed the first copyright act. As we look at the copyright industries today, it’s obvious that Thomas Jefferson never saw anything like this!
As we’ll see in Part Two, Copyright Basics, copyright has been constantly changing in other ways as well. In chapter 6, we’ll see how copyright has expanded to include not only the new technologies highlighted in Part One, but also maps and charts, paintings and sculpture, photographs, architectural works, and even boat hull designs. In chapter 7, we’ll see how the general rights of copyright have also been extended over the years, so that today copyright includes not only the right to print maps, charts, and books, but also the right to make derivative works, such as movie adaptations and translations, and to publicly perform or display the ever expanding range of copyrighted works.
In chapter 8, we’ll explore some of the significant limiting principles of copyright that help to preserve the careful balance between copyright owners and copyright users, including the principle of fair use. In chapter 9, we’ll consider some fundamental questions that have not been completely dealt with in the prior chapters: How long does copyright last? What does it take to get a copyright? Who owns the copyright? And what about other legal theories of protection?
What we’ll discover is that copyright is more important today than it’s ever been. There are several reasons I reach this conclusion. I begin with the initial premise that the fundamental principles of copyright are still sound. We still want to encourage creativity, and we still have no better way of subsidizing it than by giving economic rewards, in the form of property rights, to those who produce the works that we value. If others want to provide entertainment and information for free, or without obtaining exclusive rights in their creations, that’s all well and good; but I don’t think we want to be limited to the entertainment and information that can be supplied either by kindhearted donors or by nonprofit organizations.
I’m bolstered in my belief by the fact that many of the industries protected by copyright are in fact more successful today than at any other time in our history. The publishing industry has had its ups and downs, but has managed to adapt reasonably well to the new technological environment. The record and movie industries, despite complaints of sales lost to piracy, have generally thrived. The computer software business hardly existed twenty years ago, and now represents a substantial portion of the gross national product. These copyright-based businesses are hardly the ones we would expect to thrive if copyright were in fact obsolete.
Instead of obsolescence, copyright in the United States would seem to be in something of a renascence. Congress and the administration seem to be more sensitive to copyright interests than ever. In part, this is because of our recent realization that the United States is a net exporter of creative works, and that it’s in our best interests not only to recognize and promote copyright laws and principles, but to encourage other countries to do likewise. And copyright has become a hot international topic as well. In chapter 10, we’ll look at the United States law in the broader context of international copyright, and see how in recent years the international agenda has come to dominate the national agenda.
How To Read This Book
There are several different ways to read this book. If you’re going to read it cover to cover, I recommend that you just start with chapter one and read away. That way, you’ll first get into the technological issues, which are probably the most exciting aspects of copyright today.
If you’re a traditionalist who likes to "lay the foundation" before getting into some of the more difficult issues, you could choose to read Part Two before Part One. The book is written so that it will make sense whichever part you read first.
I’ve included lots of cross references within the book that serve as "hyperlinks" to the parts of the book that discuss other materials. For example, where basic principles are raised in the technology chapters of Part One, you are referred to the appropriate discussion in Part Two. Where new technologies are mentioned in or are relevant to the section on copyright basics, you are referred to the appropriate discussion in Part One. So, if you’re a younger reader who has been raised on interactive media, you are welcome to read the book like a "Choose Your Own Adventure" story, following the cross-references wherever they take you throughout the book.
No matter how you put it together, I hope you’ll come away from this book with an appreciation of what copyright is and how it works. Whether you’re involved in the industries or just a consumer of music and disks and radio, motion pictures and television, computers and the Internet, or books and visual art and the performing arts generally, I think you’ll find that copyright is a remarkable system that has so far served these industries well.
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