Copyright Policies: Past, Present, and Future Tracy B. Mitrano Cornell University [email protected] Tracy B. Mitrano Cornell University [email protected]

Copyright Policies:Past, Present, and Future

Copyright Policies:Past, Present, and Future

Tracy B. MitranoCornell University

[email protected]

Tracy B. MitranoCornell University

[email protected]

Steven L. WoronaEDUCAUSE

[email protected]

Steven L. WoronaEDUCAUSE

[email protected]

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AgendaAgenda• The printing press, English law, the American

Constitution, and Mark Twain (Tracy)

• Advancing technology: From player pianos to the Web (Steve)

• Copyright law today vs copyright policy tomorrow (Tracy)

• Copyright’s top 5 myths (Steve)

• Discussion and Q&A (All)

• The printing press, English law, the American Constitution, and Mark Twain (Tracy)

• Advancing technology: From player pianos to the Web (Steve)

• Copyright law today vs copyright policy tomorrow (Tracy)

• Copyright’s top 5 myths (Steve)

• Discussion and Q&A (All)

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The Printing Press and the BookThe Printing Press and the Book• From monasteries to movable type

• Printing press (Western) 1436/7• Critical component of Protestant Reformation

• Rise of literacy and individual interpretation of the Bible

• (And if we believe Weber…Capitalism…)• Query: now that it is invented, how – and who – is

going to control it?• Stationer’s Company 1557

• Absolute monarchy of Tutor reign and monopoly control• De facto “copyright law” and the foundation of

“exclusive rights” – but neither “natural” nor property• Publishers as the arm of the crown

• From monasteries to movable type• Printing press (Western) 1436/7• Critical component of Protestant Reformation

• Rise of literacy and individual interpretation of the Bible

• (And if we believe Weber…Capitalism…)• Query: now that it is invented, how – and who – is

going to control it?• Stationer’s Company 1557

• Absolute monarchy of Tutor reign and monopoly control• De facto “copyright law” and the foundation of

“exclusive rights” – but neither “natural” nor property• Publishers as the arm of the crown

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Anglo-American Copyright LawAnglo-American Copyright Law• Statute of Anne 1709

• For authors first, not publishers• Following the political economic trends of modern

individualism and capitalism• Fourteen years of protection, renewable for another

fourteen• Stationer’s rights for 21 years to publish• Limits introduced concept of “public domain” and thus:

• Aided democracy by providing information for informed, deliberative citizenry

• Balance interests of incentive for authors, rights for publishers and needs of public

• Statute of Anne 1709• For authors first, not publishers

• Following the political economic trends of modern individualism and capitalism

• Fourteen years of protection, renewable for another fourteen

• Stationer’s rights for 21 years to publish• Limits introduced concept of “public domain” and thus:

• Aided democracy by providing information for informed, deliberative citizenry

• Balance interests of incentive for authors, rights for publishers and needs of public

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Anglo-American Copyright LawAnglo-American Copyright Law• Constitutional Convention

• Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain)

• Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years)

• Madison: copyright not property, but policy, balancing incentive with learning and progress.

• Article I, section 8:• Congress shall have the 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.”

• Constitutional Convention• Washington: access to information required to

maintain an informed citizenry as bulwark against tyranny (i.e. public domain)

• Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years)

• Madison: copyright not property, but policy, balancing incentive with learning and progress.

• Article I, section 8:• Congress shall have the 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.”

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Copyright Law of 1790Copyright Law of 1790• Exclusive right

• From Stationers…• Still with us…

• Fourteen years, renewable once• From Statute of Anne

• Now for individual 70 years plus life of author• Registration required

• Policy, not property• Not now, except for damages

• But nota bene the scope: books, maps…• Specific

• Not now, general: “original work in a tangible medium”

• Exclusive right• From Stationers…

• Still with us…• Fourteen years, renewable once

• From Statute of Anne• Now for individual 70 years plus life of author

• Registration required• Policy, not property

• Not now, except for damages• But nota bene the scope: books, maps…

• Specific• Not now, general: “original work in a tangible

medium”

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Through thick and thin: Mark TwainThrough thick and thin: Mark Twain• “Thin” copyright protection goes with

copyright poor and developing countries, like US in 19th century, or Asia today

• “Thick” copyright protection goes with developed, or copyright rich and developed countries like Britain in 19th century or US in 20th and today.

• Mark Twain signaled the transition by advocating for greater protection (life plus 50 years) and legitimating claim by basing copyright on “property” rights• N.B. Intellectual Property a term coined in 1967

• “Thin” copyright protection goes with copyright poor and developing countries, like US in 19th century, or Asia today

• “Thick” copyright protection goes with developed, or copyright rich and developed countries like Britain in 19th century or US in 20th and today.

• Mark Twain signaled the transition by advocating for greater protection (life plus 50 years) and legitimating claim by basing copyright on “property” rights• N.B. Intellectual Property a term coined in 1967

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Advancing TechnologyAdvancing Technology

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Advancing TechnologyAdvancing Technology

“Technology is disruptive;

Information Technology is

really disruptive.”

–Shirley Ann Jackson

“Technology is disruptive;

Information Technology is

really disruptive.”

–Shirley Ann Jackson

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Advancing TechnologyAdvancing Technology• Player pianos

• Supreme Court: Not infringement (1908)• Phonograph records

• Congress: Infringement + compulsory licensing (1909)• Radio

• Courts plus new business model (1920’s)• Broadcast TV over cable

• Supreme Court: Not infringement (1966, 1974)• Congress: Infringement + compulsory licensing (1976)

• VCR’s• 1974-1984, 5-4 Supreme Court decision

• DAT• Unique resolution: Legally limit the technology (1992)

• Tivo• Time-shift, store, play back, edit, …

• Player pianos• Supreme Court: Not infringement (1908)

• Phonograph records• Congress: Infringement + compulsory licensing (1909)

• Radio• Courts plus new business model (1920’s)

• Broadcast TV over cable• Supreme Court: Not infringement (1966, 1974)• Congress: Infringement + compulsory licensing (1976)




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Advancing TechnologyAdvancing Technology• Player pianos

• Supreme Court: Not infringement (1908)• Phonograph records

• Congress: Infringement + compulsory licensing (1909)• Radio

• Courts plus new business model (1920’s)• Broadcast TV over cable

• Supreme Court: Not infringement (1966, 1974)• Congress: Infringement + compulsory licensing (1976)




• Player pianos• Supreme Court: Not infringement (1908)

• Phonograph records• Congress: Infringement + compulsory licensing (1909)

• Radio• Courts plus new business model (1920’s)

• Broadcast TV over cable• Supreme Court: Not infringement (1966, 1974)• Congress: Infringement + compulsory licensing (1976)




““Any time you skip a commercial,Any time you skip a commercial,you’re actually stealing theyou’re actually stealing theprogramming.”programming.”

– – Jamie KelleherJamie KelleherCEO, Turner BroadcastingCEO, Turner Broadcasting

““Any time you skip a commercial,Any time you skip a commercial,you’re actually stealing theyou’re actually stealing theprogramming.”programming.”

– – Jamie KelleherJamie KelleherCEO, Turner BroadcastingCEO, Turner Broadcasting

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The Internet and the WebThe Internet and the Web• “Framing”

• In limbo• “Deep Linking”

• In limbo• Altering fonts, colors, size, …

• Waiting to surface• Blocking pop-ups

• Waiting to surface (“Any time you skip a pop-up, you’re stealing the content.”)

• P2P• On the front pages• Compare with Tivo

• “Framing”• In limbo

• “Deep Linking”• In limbo

• Altering fonts, colors, size, …• Waiting to surface

• Blocking pop-ups• Waiting to surface (“Any time you skip a pop-up,

you’re stealing the content.”)• P2P

• On the front pages• Compare with Tivo

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Technology and Copyright:Lessons and Observations

Technology and Copyright:Lessons and Observations

• It’s not just P2P• Lots of other interesting problems (still) floating around• Technology – especially, but not exclusively the Internet –

is giving consumers unprecedented power over content• Collision between “my computer/television/wiring” and

“my content”• Solutions will (continue to) be multi-dimensional

and content/technology-specific• Interpretation of existing laws• Creation of new laws• Voluntary agreements; new business models• Not all intellectual property will be (can be; has been)

treated the same

• It’s not just P2P• Lots of other interesting problems (still) floating around• Technology – especially, but not exclusively the Internet –

is giving consumers unprecedented power over content• Collision between “my computer/television/wiring” and

“my content”• Solutions will (continue to) be multi-dimensional

and content/technology-specific• Interpretation of existing laws• Creation of new laws• Voluntary agreements; new business models• Not all intellectual property will be (can be; has been)

treated the same

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1976 Law + P.C. + Networking = Conflict1976 Law + P.C. + Networking = Conflict

• Scope• Populist concept: original work tangible medium,

but very controlling in the hands of commercial interests.• Since nobody owns the Internet, i.e. its protocols,

battle over control of it revolves around ownership and control of the material transmitted on it.

• Terms• Copyright Term Extension Act of 1998• Eldred v. Ashcroft, 2003• “Perpetual copyright on the installment plan?”

• Scope• Populist concept: original work tangible medium,

but very controlling in the hands of commercial interests.• Since nobody owns the Internet, i.e. its protocols,

battle over control of it revolves around ownership and control of the material transmitted on it.

• Terms• Copyright Term Extension Act of 1998• Eldred v. Ashcroft, 2003• “Perpetual copyright on the installment plan?”

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Add DMCA and Wow!Add DMCA and Wow!• Notice and Take Down

• Subpoena power: RIAA v. Verizon• Right to read• Right to privacy• Due Process• http://www.cdt.org/copyright/

• Anti-Circumvention• DeCSS 2000• Sklyarov case• Felten• “Unintended Consequences”

• http://www.eff.org/IP/DRM/DMCA/20031003_unintended_cons.php

• Notice and Take Down• Subpoena power: RIAA v. Verizon

• Right to read• Right to privacy• Due Process• http://www.cdt.org/copyright/

• Anti-Circumvention• DeCSS 2000• Sklyarov case• Felten• “Unintended Consequences”

• http://www.eff.org/IP/DRM/DMCA/20031003_unintended_cons.php

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Current Struggles of Copyright?Current Struggles of Copyright?

• Lessig on scope and term• Populist: Broad protection for non-published

limited (5 year) for published• The Creative Commons

• http://creativecommons.org/• Samuelson (law) on anti-circumvention

• Papers: http://www.sims.berkeley.edu/~pam/papers.html

• Felten (research) on anti-circumvention• Composite• http://www.eff.org/IP/DMCA/Felten_v_RIAA/

• Lessig on scope and term• Populist: Broad protection for non-published

limited (5 year) for published• The Creative Commons

• http://creativecommons.org/• Samuelson (law) on anti-circumvention

• Papers: http://www.sims.berkeley.edu/~pam/papers.html

• Felten (research) on anti-circumvention• Composite• http://www.eff.org/IP/DMCA/Felten_v_RIAA/

http://creativecommons.org/






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Copyright’s Top 5 MythsCopyright’s Top 5 Myths

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Copyright’s Top 5 MythsCopyright’s Top 5 Myths5. Copyright infringement is the same as theft

• It’s both more and less5. Copyright infringement is the same as theft

• It’s both more and less

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• It’s both more and less4. Technology must give way to copyright

• Just the reverse has happened, as we’ve shown

5. Copyright infringement is the same as theft• It’s both more and less

4. Technology must give way to copyright• Just the reverse has happened, as we’ve shown

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• Just the reverse has happened, as we’ve shown3. Creators of intellectual property have the

absolute right to control its use• Lots of exceptions, starting with Article 1



3. Creators of intellectual property have theabsolute right to control its use

• Lots of exceptions, starting with Article 1

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2. Without full control of their works, authorswon’t publish

• See above




• Lots of exceptions, starting with Article 12. Without full control of their works, authors

won’t publish• See above

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• See above1. “You can’t compete with free”






1. “You can’t compete with free”

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• See above1. “You can’t compete with free”

• 2002 bottled water sales: US $7.8B; World $35B






1. “You can’t compete with free”• 2002 bottled water sales: US $7.8B; World $35B

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Future of CopyrightFuture of CopyrightNothing widely-sweeping is going to change

about the circumference of copyright law in the United States unless and until a critical mass of

the general public begin to understand the relationship between copyright law and

democracy. And the only way to understand that relationship is to know something of its

history, particularly its meaning to the founding fathers and their vision of the United States as

not only a place of vibrant, competitive creativity but of an informed, educated

citizenry forever battling the hydra of tyranny.

Nothing widely-sweeping is going to change about the circumference of copyright law in the United States unless and until a critical mass of

the general public begin to understand the relationship between copyright law and

democracy. And the only way to understand that relationship is to know something of its

history, particularly its meaning to the founding fathers and their vision of the United States as

not only a place of vibrant, competitive creativity but of an informed, educated

citizenry forever battling the hydra of tyranny.

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DiscussionDiscussion

Documents

Copyright Policies: Past, Present, and Future Tracy B. Mitrano Cornell University [email protected] Tracy B. Mitrano Cornell University [email protected]