16 Pages Posted: 11 Nov 2002
Date Written: October 18, 2002
Over the last several years, copyrighted works have come to account for a healthy portion of our GNP, and an even more substantial share of U.S. exports. Nonetheless, copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.
Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators and interpreters - authors and performers - albeit often initial copyright owners, tend to vanish from polemical view), have eyed enhanced prospects for global earnings in an increasingly international copyright market. Accordingly, they have urged and obtained ever more protective legislation, that extends the term of copyright and interferes with the development and dissemination of consumer-friendly copying technologies.
Greed, of course, runs both ways. Consumers, for their part, have exhibited an increasing rapacity in acquiring and "sharing" unauthorized copies of music, and more recently, motion pictures. Copyright owners' attempts to tame technology notwithstanding, at least some of the general public senses as illegitimate any law, or more particularly, any enforcement that gets in the way of what people can do with their own equipment in their own homes (or dorm rooms). Worse, they would decry this enforcement as a threat to the Constitutional goal of promotion of the Progress of Science, and thus a threat to the public interest.
In this formulation, the "public interest" is doing a lot of work, not all of it persuasive. The "public interest" does not mean the personal interest of members of the public in getting works of authorship without paying for them. This is as much a perversion of the Constitutional copyright clause as is the anthropomorphically nonsensical, but infinitely self-serving, adage "Information wants to be free." But neither is every legal protective measure that a copyright owner urges in the name of authors' Constitutional interest in "securing . . . the exclusive Right to their . . . Writings" a guarantor of the Progress of Science. In fact, the "public interest" in a balanced copyright system that provides meaningful incentives to first authors, while allowing second authors room to build on their predecessors' endeavors, as well as reasonable leeway for autonomous consumer enjoyment, has come in for considerable battering by both copyright owners and users.
This Essay does not attempt a comprehensive review of recent U.S. copyright legislation and caselaw. Instead, it offers an analytical framework that will allow me to be both informative and opinionated. I propose first to expose some examples of the kind of copyright owner overreaching that has correctly given copyright a bad name. I then will argue that not all the bad publicity is deserved. Rather, much of the last years' legislation and caselaw, instead of overreaching, appropriately reaches out to address new problems prompted by new technologies, so as to strike a happier balance between copyright owner, intermediary, and end-user interests (or greeds). This in turn will permit our legal system to continue to afford a hospitable environment for the creation and dissemination of works of authorship, to the ultimate enrichment of the public.
Suggested Citation: Suggested Citation
Ginsburg, Jane C., Essay - How Copyright Got a Bad Name For Itself (October 18, 2002). Columbia Journal of Law and the Arts, Vol. 26, No. 1, 2002. Available at SSRN: https://ssrn.com/abstract=342182 or http://dx.doi.org/10.2139/ssrn.342182
By Peter Menell