Copyrights in the digital age
Maybe it is time to chuck the whole system and devise a
new model. I know it sounds outlandish—and being a writer I have as much
to lose as anyone—but I can’t imagine how copyrights can be protected
with the current statutes and in today’s climate.
One of the waves of change unforeseen when Brattain,
Bardeen and Schockley invented the transistor in 1947—and, in effect,
launched the digital revolution—was in the field of copyright law.
In a matter of a few years, the entire world of copyright
law has been turned upside down by technological advances. In cases this
year before the U.S. Court of Appeals and U.S. Supreme Court, fundamental
questions will be raised as to what it means to have a copyright in the
digital age.
The reasons for this are three fold.
One, the Internet enables easy, anonymous and
instantaneous transfer of works of "expression."
Second, digital technology is an incremental one. Anything
represented digitally can be sliced, diced, altered a little, altered a
lot, amplified and copied in nanoseconds. Prior to digital technology, our
means for representing the world was in an analog fashion. A song, for
example, was recorded as a whole entity and, as far as manipulation goes,
it was effectively indivisible.
Third, relatively inexpensive devices are readily
available to the public that allow them to copy and view just about
anything.
Copyright law today rests on a tripod of statutes: the
Copyright Act of 1976, the First Amendment and the Digital Millennium
Copyright Act of 1998.
The first clarifies in law what exactly a copyright is and
when it is being infringed upon. Any "work of authorship,"
including literary works, musical pieces, motion pictures and sound
recordings, is protected. The work must only be "original" and
"fixed" in a medium of expression. Facts, ideas or discoveries
in a work are not protected, only their "expression."
The moment a work is authored, it becomes protected. In
other words, you need not do anything to have your work protected for your
lifetime, plus 70 years. (You do have to register with the Copyright
Office to file an infringement suit).
What does the Copyright Act of 1976 do for you? It gives
you five rights: the right to reproduce your work, the right to modify and
create derivatives of the piece, the right to distribute it, the right to
public performance or transmission of it and the right to publicly display
it.
The First Amendment comes into play with the "fair
use" provision. The provision allows the "fair use" of a
copyrighted item in instances of news reporting, criticism, academic
scholarship, research and teaching. This is, in effect, a balance to
copyrights. "Fair use" allows the free flow of information—a
necessary condition in a democracy—without compromising the rights of
authors.
The Digital Millennium Copyright Act of 1998 prohibits the
distribution of a device that is primarily designed to get around a
digitally locked gate protecting a copyrighted work. It is analogous to
making it illegal to sell "slim jims"—the metal devices used
to get your car door open when you lock the keys in the car.
Here are a few examples of how the laws are failing to
address the issues.
Armed with the Napster website and a home computer, anyone
can download copyrighted music and pass it along. While a court attempted
to shut down the process, Napster users have already found a way around
the court’s injunction. Certainly, some musicians and record companies
are losing money to Napster, but then many musicians are getting exposure
they never would have had.
With a program posted on the Internet called DeCSS, anyone
can decrypt a DVD movie disk, view it, even copy it to a hard drive. This
process is presently being challenged in court under the Digital
Millennium Act.
It seems to me that without DeCSS available to the public,
there would be no "fair use" safety valve. The multi-media
companies, by encrypting their products, would control, in an absolute
sense, access to authored materials.
Yet another murky area is in the field of digital
photography. Say I borrow an Ansel Adams photo from a collection,
digitally scan it and then alter the scan in a software program like
Photoshop. I can change the focus, the contrast, add images to it, crop it
and add color. At what point does the image become mine and no longer
Ansel Adams’? His estate would argue that you are making a derivative of
his work, but then we start testing the notion of derivative. In a sense,
everything is derivative of everything that came before it. It seems
acceptable for artists to be "influenced by" someone, but at
what point are they derivatives? This is why the incremental nature of
digital technology is so problematic.
A copyright case pitting the New York Times against
freelance writers is presently before the U.S. Supreme Court. When
newspapers republish in databases like Nexis-Lexis who owns the freelance
articles? It may hinge on whether the paper is transmitted as a whole or
as a sequence of individual packets.
I suppose what I’m getting at is that copyright law is
out of step with technology. I do think it is somewhat important to
protect the rights of authorship, but less so than before. Or, more to the
point, it seems less and less feasible to do so. It seems impossible to
stem the flow of ideas and expression given the nature of the Internet
now.
Maybe it is time to chuck the whole system and devise a
new model. I know it sounds outlandish—and being a writer I have as much
to lose as anyone—but I can’t imagine how copyrights can be protected
with the current statutes and in today’s climate.
Certainly we can always put bigger and better digital
locks on the cookie jar of expression, ceding absolute control to
multi-media corporations. But hackers and otherwise curious people will
persist in finding ways in. One way or another expression will flow
freely. We might be better off just smashing the cookie jar and figuring
out a new way to share.
