The Illustrated Story of Copyright
© 2000 by Edward Samuels

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[250]

Afterword

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Creativity Wants to Be Paid

 

 

 

Are we finished yet? I doubt it. But we should take a breather here at the beginning of the new millennium to absorb all that has happened in recent years.

 

            In presenting this history of copyright, I’ve tried to avoid playing the role of the “copyright goon” or the “copyright police.” I’m not going to tell you that you can’t copy the works of others (though I would appreciate it if you don’t make unauthorized copies of this particular book). However, you’ve probably already figured out that my general sympathy is with copyright owners and the protection of their rights, and I hope you’ve come away with some appreciation of the remarkable role that copyright has played in promoting creativity and the arts.

 

            There’s a saying on the Internet that “Information wants to be free.” I doubt that information really cares what happens to it, but if by the saying we mean that we  want information to be free, then that may be true most of the time. That’s even true under copyright, which provides that facts* are not the proper subject of copyright protection. However, creativity is a different matter. Under the principles of copyright, we  want creative works to be compensated; that’s how we pay the creators for creating their works. So, I assert, “Creativity wants to be paid.”

 

*Facts, see p. 161.

 

[250] More on the purpose of copyright.

    American copyright law has suffered for two hundred years from the absence of a clearly articulated theoretical basis. Some might see this as some sort of oversight or conspiracy. I don’t think so. I think that Congress and the courts have thereby maintained flexibility in the development of the law.
                Physicists for years debated the nature of light, whether it was made up of waves or particles. Finally, it came to be understood that light did not neatly fit into either theoretical framework, but that it evinced certain properties that could only be described by wave theory, and certain properties that could only be described by particle theory. It was neither, and it was both.  Just so, the different theories represent different ways of looking at copyright law that can be used to explain different aspects of it, but none of which is adequate to explain the whole, and none of which trumps the others.
                Although others may of course disagree, I think I detect a shift from a more regulatory framework to a more natural rights framework. Congress has in fact been aggressive in expanding copyright law throughout the past two hundred years. While the early English or American laws might have been described as a minimal, maybe even begrudging, recognition of statutory rights, the early justifications could hardly explain the broad scope of copyright today.  Current law protects sound recordings and computer programs, grants performance rights and rights to make derivative works, and even incorporates some modest moral rights protection. [251] The formalities that were for so long at the heart of American copyright law have been virtually abandoned. American law, since the Berne Convention Implementation Act, is as protective as almost any of the European laws that is said to have a moral rights basis. It should therefore now be possible to ascribe to American copyright law the broad theoretical basis that until recent years may have been premature.
                                                   -Edward Samuels.

            I’m not sure that I’d still call the American trend “less regulatory,” given the Digital Millennium Copyright Act, which is highly technical and “regulatory” (see p. 112). Nevertheless, the rights set forth in that act are in addition to traditional rights of copyright, and the other recent expansions of copyright are not consistent with a begrudging view of the purpose of copyright.

            When I first became interested in copyright over twenty-five years ago, I felt that the scales were tipped too heavily against copyright owners. Violating rights was just too easy, and enforcing rights was just too costly and time-consuming in most cases. My sense is that the copyright owners have been pretty vocal, have come to understand and appreciate their rights, and have been successful in getting support from the administration, [251] legislature, and the courts, in this country and around the world. It’s possible that the scales have tipped the other way, and that it’s the copyright owners who now have the upper hand. If in fifteen years the copyright owners again come asking for an extension of their copyrights before they expire, or another technological fix to secure their rights, I doubt I’ll be convinced that they need it. But preserve what we’ve got? Absolutely. Educate the public to understand and appreciate what a remarkable system we have? Of course.

 

             Back in 1997 when I was starting to write this book, the President’s Committee on the Arts and Humanities issued a report, entitled Creative America.  The committee was charged with “articulating the fundamental and intrinsic values of the arts and the humanities,” and describing the “cultural sector” and its contributions to American life. The report summarized “what we know about trends in private funding and earned income that contribute most of the financial support” for cultural institutions, as well as “the role of the federal government in the arts and the humanities.” It also contained recommendations for “strengthening support for the arts and the humanities in the United States.”

 

            The report quoted from Benjamin Barber, who wrote an essay commissioned by the committee, in which he maintained that “The arts and humanities are civil society’s driving engine, the key to its creativity, its diversity, its imagination and hence its spontaneousness and liberty.” The report concluded that “A society that supports the arts and the humanities is not engaging in philanthropic activity so much as it is assuring the conditions of its own flourishing.” The recommendations to promote the arts and humanities in the United States included “launching the millennium initiative,” a four-year project to encourage the arts and humanities [251] in five ways: by “educating our youth for the future,” “investing in cultural capital,” “renewing American philanthropy,” “affirming the public role,” and “expanding international cultural relations.”

 

            As I read the report, I was struck by the fact that it never once mentioned the specific system for promoting the arts that was set up by the framers of the Constitution and the first Congress—the copyright system. My student research assistant at the time, Roy Evans, suggested a title for my book in its early drafts: “Copyright: The Silent Patron of the Arts.” Although the book has gone in a different direction from that early suggestion, I believe that Roy pretty much got it right. Copyright does more to support the arts and humanities than all of the federal grants, subsidies, and private philanthropy put together, and on a much more egalitarian basis. We support the arts and humanities when we pay for the entertainment and information media we desire. And the law supports the arts when it sets up a system to assure that at least a portion of what we pay goes to the people and companies that create the works.

 

            So, this book is my contribution to the Millennium Initiative. I hope it helps to make copyright a little less silent as a patron of the arts.

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