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Opinion Column
For the week of May 2 through May 8, 2001

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.



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