The tagline of this site is “understanding the copyright wars.” The reasons for so much debate surrounding this subject are many, but the why of the copyright wars might be boiled down like this:
The onslaught of the new technology, combined with the introduction into the international copyright system of countries with different needs and with conflicting economic and political concepts, leaves the future of copyright very much in question.
More interesting, though, is the level of rancor surrounding the debates about that future:
Like any other law, copyright is a pragmatic response to certain felt needs of society and, like any other law, must change in scope and direction as these needs change. But changing any law is never an easy matter, and the case of copyright is made much more difficult by the religious fervor and theological arguments thrown at each other by the contending parties. The personal anger, the emotion, the presentation of viewpoints in stark black-and-white terms, are quite different in degree and character from what one might find in disputes over, say, admiralty or insurance law.
It is easy to make fun of the kind of confrontation I am talking about, where the mere mention of a word like “monopoly” or “property” will cause chairs to be pushed back from tables, faces to redden, breathing to shorten and bitter words to be exchanged.
Most interesting? These words were written in 1974, by the late Barbara Ringer. A copy of her essay, The Demonology of Copyright, is available at the Copyright Office’s website, and it is highly recommended reading.
The Engine of Free Expression
One of the themes Ringer explores is how copyright emerged at a time when democracy was replacing more repressive forms of government in the western world. It’s true that copyright law has its genesis in early printing monopolies, and the privileges granted to publishers went hand in hand with government control over what could be published. But Ringer notes that by the 18th century, a fundamental shift had occurred in England:
As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under commonlaw principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles: recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.
This wasn’t an isolated occurrence:
It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom. The Rights of Man in both cases certainly included the Rights of the Author, and the French word for copyright, “le droit d’auteur,” reflects this philosophical approach literally.
With this theme in mind, Ringer turns to other topics, including the sharp debates over the words used in the copyright context, like “monopoly” and “property.” Next, she takes a look at the goals of copyright, and reminds readers that these goals don’t dissipate in the face of rapid technological changes:
I believe it is society’s duty to go as far as it can possibly go in nurturing the atmosphere in which authors and other creative artists can flourish. I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.
If you change photocopies and jukeboxes to their modern day equivalents, then the arguments alluded to here are the same ones heard today. The challenges facing creators in the digital era, it seems to me, are much the same as the challenges they faced four decades ago when Ringer wrote those words (though the scope of the challenge is larger).
Ringer concludes with a strong endorsement of ensuring the continuing vitality of creator’s rights. Though the words are nearly forty years old, the sentiment remains true:
If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.