Brief Copyright History

Discussion

Copyright, as it was originally created, tried to balance two goals: to encourage the production of valuable ideas, art and music by allowing the creators an exclusive right to their works for a reasonable period of time, and to enrich and strengthen our society by later permitting those works to become part of the public domain. Controlling, and thereby profiting, from their creations encourages more creativity by rewarding the hard work of the creators and promotes more substantial works involving sustained effort and time. Allowing the works to become part of the public domain improves society as a whole, making sure that knowledge and art reaches all levels of our society, not just those who can afford to pay. And works entering the public domain also encourage continued creativity, the artist continues to profit by continuing to create, rather than raking in endless profits from one good idea.

This has been changing gradually in the last few years, in ways that don’t seem good. Most of the changes seem aimed at works for hire, that is, usually the works and properties created for and owned by the entertainment giants, though that isn’t always obvious. And I’m not just talking about the changes that have gone into effect to try to counteract the introduction of digital media, though that is a significant part and seems to have the most severe consequences. The continued lengthening of the period of copyright, the automatic (rather than optional) extension of that period, doesn’t seem to be so much about the author or his heirs, but about the entertainment corporations who “live” much longer than a person.

There’s a good discussion of the issues involved at the Wikipedia Sonny Bono Copyright Term Extension Act entry.

Our copyright law seems more and more to be about the “needs” and desires of a very narrow segment of our society. But I have seen some interesting ideas that try to balance the needs of the entertainment industry and society at large. For example, an optional renewal that has a substantial fee. This is the way patents work. If your intellectual property continues to make money, then it would be worth paying the fee to continue getting the revenue from it. If the copyright will make less money than the fee over the period of extension, then presumably you’d let your copyright expire. Eventually, though, even the truly valuable should revert to the public.

One of the most intelligent, and thoughtful writers on copyright issues is Karen Coyle. Have a look at her site when you have a chance. For now, you can download a few of her most interesting articles from here: Home Alone, The Future of Copyright, What the Copyright Office Got Wrong.

History

1787 – U.S. Constitution
Article I, Section 8, Clause 8 says, ” the Congress shall have power … 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.”
Copyright Act of 1790
Granted American authors the right to print, re-print, or publish their work for a period of 14 years and renew for another 14.
1831 Revision of Copyright Act
The term of protection for copyrighted works was extended to an initial 28 years with an optional extension for another 14.
1870 Revision of Copyright Act
Administration of copyright moved from individual district courts to the Library of Congress. No change in the terms of protection.
1909 Revision of Copyright Act
A major revision that expanded the categores protected to include all works of authorship, and gave them an initial term of protection of 28 years, with a possible renewal for another 28.
1917 Herbert vs. Shanley Co.
A restaurant was sued for unauthorized use of a musical work. The restaurant argued this was not a copyright violation because it did not charge the customers for the performance. The Supreme Court ruled that a direct charge was not required, evidence that the music was a factor in the establishment’s profitability was sufficient.
1931 Buck vs. Jewell-La Salle Realty Co.
A hotel broadcast radio over loudspeakers into its rooms. The Supreme Court ruled that such use did constitute a public performance under the 1909 Act.
1968 Fortnightly Corp. vs. United Artists, Inc.
This case involved re-transmission of copyrighted works through cable systems. Even though the facts here were almost identical to that of the hotel case above, the Supreme Court ruled that cable systems were viewers, not broadcasters, and there could be no performance by a viewer.
1975 Twentieth Century Music Corp. vs. Aiken
George Aiken played the radio without a license via a receiver and 4 speakers in his fast food restaurant. The copyright owners of the songs claimed this was a performance and their copyright had been violated. The Supreme Court held there was no “performance” as defined in the 1909 Act, basing their decision on the small size of Aiken’s restaurant and the impact on society should all similar businesses be subject to copyright payments. This ruling essentially overturned the Jewell-LaSalle case and became an issue in drafting the 1976 Copyright Act.
1976 Revision of Copyright Act
This revision preempted all previous copyright law and extended the term of protection to the “life of the author” + 50 years, and works for hire to 75 years. For the first time, fair use and first sale doctrines were explicitly addressed and copyright was extended to unpublished works. Also, a new section was added, Section 108, that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan.

Section 107 contains some important exceptions to the exclusive rights of owners, “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, or by any other means specified, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” To determine fair use, 4 factors are to be considered: purpose and character of use, nature of copyrighted work, amount and substaniality of the portion used in relation to the whole, and the effect of the use on the potential market.

Section 110(5) attempted to address the implications of the Aiken case above and specifies under what circumstances a business does not have to use a commerical licensing service to play background music. As usual, the actual wording is open to interpretation, but court rulings have focused on these factors: equipment used must be of a type commonly found in homes (non-commercial grade equipment), no modifictions to the equipment, no hidden speakers or concealed wiring, number and quality of speakers, no direct charge for the “performance”, no further transmission (so receiver and speakers in different rooms have often been ruled non-exempt), and size of the business both physically and financially (though there is no direct wording supporting this in the law).
1990 – Circulation of Computer Software
A modification of the first sale doctrine to prohibit commercial lending of computer software. Libraries can still lend software provided the “copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright.”
1992 – Amendment to Section 304 of Title 17
Congress made the previously optional extended period of copyright protection an automatic renewal. This dramatically curtails the entry into public domain works protected by copyright before 1978.
1993 – Playboy Enterprises Inc. vs. Frena
The Florida Northern District Court found that Frena, an electronic bulletin board operator, had violated Playboy’s copyright when one of their photographs was digitized by one subscriber and downloaded by another. “Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to trial court when it fixes statutory damages, which is a remedy equitable in nature.”
1994 – Campbell vs. Acuff-Rose Music Inc.
The Supreme Court ruled that 2 Live Crew’s paraody of Roy Orbison’s song, “Pretty Woman”, was fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work are different.
1996 – Database Protection Act
A bill introduced to protect databases for 15 years from unauthorized extractions of more than an insubstantial part of the database contents. Extremely controversial legislation, with many attempts at crafting a compromise from 1999 – 2002.
1998 Fairness in Music Licensing Act
An attempt to clarify the exemption under 110(5) of the 1976 Copyright Revision. The Amendment exempts all businesses of “less than 2000 gross square feet”. Non-food service and non-drinking establishments over 2000 gross square feet are exempt only if they perform copyrighted works exclusively by audio means and have a total of “not more than 6 loudspeakers, of which not more than 4 are located in any 1 room…”. Food and drinking businesses less than 3750 gross square feet are all exempt, but over 3750 square feet are only exempt if using no more than six loudspeakers, or more than 4 audiovisual screens no greater than 55 inches diagonally. Exemptions don’t apply if the business charges a fee for listening or viewing. This is an extremely broad exemption that may be in conflict with our international copyright obligations under the Berne Convention and the TRIPS Agreement.
1998 – Sonny Bono Copyright Term Extension Act
The law extended protection from the “life of the author” + 50 years to “life of the author” + 70 years. Works for hire were extended from 75 years to 95 years. An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last 20 years as if they were in the public domain for non-commercial purposes, under certain limited conditions.
1998 – Digital Millenium Copyright Act
The most controversial provision is Section 1201, “prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work.” Another controversial title establishing database protection was omitted.
1999 – Digital Theft Deterrence and Copyright Damages Improvement Act
Increased minimum statutory damages for infringements from $500 to $750 and maximum from $20,000 to $30,000. The maximum for willful infringement increased from $100,000 to $150,000.
2002 – Consumer Broadband and Digital Television Promotion Act
The bill requires any device that can record, receive, or store copyrighted digital information comply with copy-protections encoded in digital works such as DVDs, CDs, and electronic books.
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