WHY COPYRIGHT TODAY THREATENS INTELLECTUAL FREEDOM

[George Lessard]

Date: Wed, 07 Apr 2004 01:45:53 -0500
From: Paul Nielson <p.nielson at shaw.ca>
To: cpi-ua at vcn.bc.ca
Cc: govinfo <govinfo at yorku.ca>
Subject: [CPI-UA] "THE PROGRESS OF SCIENCE AND 
USEFUL ARTS": WHY COPYRIGHT TODAY THREATENS 
INTELLECTUAL FREEDOM


<http://www.fepproject.org/policyreports/copyright2dexsum.html>http://www.fepproject.org/policyreports/copyright2dexsum.html

A Public Policy Report
The Free Expression Policy Project
a think tank on artistic and intellectual freedom

Second edition, revised and updated, © 2003      

For a copy of the report in pdf, click here .
http://www.fepproject.org/policyreports/copyright2d.pdf
For a free copy of the printed report, email heins at ncac.org

EXECUTIVE SUMMARY

Copyright - our system for protecting and 
encouraging creativity - has been described as 
"the engine of free expression." 1But copyright 
can also interfere with free speech - with the 
public's right to share, enjoy, criticize, 
parody, and build on the works of others. 
Resolving these sometimes conflicting claims 
requires policymakers, in the words of the 
Supreme Court, to strike a "difficult balance" 
between rewarding creativity through the 
copyright system and "society's competing 
interest in the free flow of ideas, information, 
and commerce." 2

A critical component of this "difficult balance" 
is the system of free-expression "safety valves" 
within copyright law. Four of these safety valves 
- the "idea/expression dichotomy," the concept of 
fair use, the so-called first-sale rule, and the 
public domain - provide necessary breathing space 
for free trade in information and ideas. The 
free-expression safety valves keep the system in 
balance and prevent the monopoly control created 
by copyright law from becoming rigid and 
repressive.

But the "difficult balance" has become lopsided 
in recent years. With the advent of electronic 
communications, and in particular the Internet, 
the media companies that make up the "copyright 
industry" have adopted techniques of "digital 
rights management," which control the accessing 
and use of creative materials in ways that are 
often inconsistent with a free and democratic 
copyright system. Two federal laws, both passed 
in 1998, have further distorted the system by 
favoring the industry at the expense of the 
public's interest in accessing, sharing, and 
transforming imaginative works.

One of these laws, the "Sonny Bono Copyright Term 
Extension Act," extended the term of copyright 
protection to nearly a century for corporations 
and even longer for many individuals and their 
heirs. It consequently delayed the time when 
cultural products will enter the public domain 
and be freely available. The other law, the 
"Digital Millennium Copyright Act" (DMCA) made it 
a crime to distribute technology that circumvents 
the industry's electronic locks on books, films, 
articles, software, or songs - even though 
circumvention itself is not always illegal, and 
even though a ban on technology strikes directly 
at scientific research.

Meanwhile, battles over online "file sharing" of 
music, movies, books, and software have created a 
crisis in the entertainment industry, alienated 
many fans, and failed to resolve the question of 
how much sharing should be allowed or whether all 
of it should be stringently prosecuted as a 
violation of copyright law.

The courts have not always been equal to the task 
of resolving these copyright conflicts. A 
constitutional challenge to the Sonny Bono law 
was rejected by the Supreme Court in 2003. The 
Court's decision ignored the law's adverse 
effects on culture, and seemed to suggest that 
Congress, by continually extending the term of 
copyright, can freeze the public domain 
indefinitely. But in the process of fighting this 
well-publicized case, many defenders of the 
public interest - archivists, libraries, and 
scholars among them - began to organize and 
advocate for changes in the copyright system that 
could help bring valuable if long-forgotten works 
into the public domain.

There have already been many lawsuits involving 
the DMCA. In one early case, the federal 
government criminally prosecuted a company that 
created a device to decrypt electronic books. 
Although a judge rejected the company's defense - 
that its circumvention device had legitimate 
(indeed, constitutionally protected) uses that 
would not infringe the copyrights on e-books - a 
jury eventually acquitted the company. But in 
another case, online journalists who distributed 
"DeCSS," a program for decrypting DVDs, were 
found to have violated the DMCA even though the 
program could be used in ways that would not 
infringe copyright. The courts even ordered the 
defendants to remove links on their Web site to 
other sites that contained the DeCSS code.

To fight online file-sharing, the music industry 
went to court to shut down Napster. New, less 
centralized systems like Grokster and KaZaA, 
however, quickly replaced Napster, and the 
industry has not so far persuaded the courts that 
these digital copying and sharing technologies 
are themselves "contributory" infringers of 
copyright. But the war against file-sharing has 
only intensified. In late 2003, the industry sued 
more than 200 individuals, including teenagers, 
for sharing music online.

Public interest groups, scholars, librarians, 
artists, computer scientists, and others in the 
growing "copyleft" movement are responding to the 
copyright crisis with projects that encourage the 
sharing of information and creative works. Some 
promote and distribute free software. Others are 
advocating for a more flexible system that would 
allow material lacking in current commercial 
value to enter the public domain sooner.

Conflicts between "strong" copyright control and 
free expression today thus occupy center stage in 
the public policy arena. The diversity and 
vitality of our culture depends on resolving 
these conflicts in a way that maximizes artistic 
and intellectual freedom.