Issue #69
Last Update October 31, 2010
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Business and Technology Digital Freedom by David Katz July 24, 2008 The copyright system is broken, according to the panelists at the Digital Music Forum East - 2008. Originally intended to promote innovation by giving the author of copyrighted material a short-term monopoly on its sale in exchange for allowing the public to make fair use of the content, this Constitutional procedure has been modified over the years until it stands as an impediment to innovation and the public's right to use the material it has purchased. Several developments have contributed to this situation: absurd lengthening of the copyright period, digital rights management technology, and the draconian terms of the DMCA, the Digital Millenium Copyright Act, passed in 1998 and currently up for modification to make penalties for infringement harsher.
Originally, copyrights were granted for a period of 19 years; currently, due to the "Disney Act", which was passed when the copyright on Mickey Mouse was about to expire, the period has been extended. (The formula for determining copyright length is rather complicated: For works created on or after January 1, 1978: copyright lasts for life of author plus 70 years; for pre-1978 works still protected by their original or renewed copyright,: the total length of their copyright is extended to 95 years from the date the copyright was originally secured; for works for hire, anonymous and pseudonymous works, copyright lasts for 95 years from the year of first publication or 120 years from the year of creation, whichever expires first; for works created but not published or registered before January 1, 1978: the copyright lasts for the life of the author plus 70 years (but in no case to expire before 12/31/2002). Note that the above does not apply to certain classes of works (such as motion pictures, etc.). For joint works of authorship, the term is measured by the life of the longest-lived author.)
The public used to be allowed to make copies of copyrighted material for personal use, and to access copyrighted material in libraries and schools. Now, digitally protected materials can't be copied or shared, even between devices owned by the purchaser of the copyrighted material, and any attempt to defeat digital protection to accomplish even a legal use of the material is a felony.
Even those industries that rely on copyright are beginning to acknowledge that the current structure is impeding business. In some cases, it's hard to know who holds what rights to a creative work; in other cases, the fear of copyright suits discourages works that make fair use of copyrighted material: in yet other cases, a common carrier, like an ISP or peer to peer network, may shy away from disseminating items that a copyright holder may want to control, whether legitimately or not.
Customers are annoyed, sales are inhibited, and there is little evidence that draconian legal or technological means are fulfilling the prime purpose of the copyright clause of the Constitution: that is, the promotion and encouragement of works of inspiration, scholarship and invention. Except for corporate interests like Disney, there is broad agreement on four major principles of copyright: shorter copyright periods, common technological protection standards, limitations on what kinds of things can be copyrighted, and portability of content.
Establishing a fair copyright period is difficult, and a distinction must be made between a copyright held by an individual and one held by a corporation. It is natural for an author or composer to feel that he should be able to derive benefit from his creation for his lifetime, and for a period after his death so that income will continue to flow to his family. A corporation, though, is immortal, so some limitation to copyright period must be set arbitrarily. Surely two generations are enough to allow a corporation to recoup its development expenses and earn a substantial profit before the copyrighted work passes into the public domain.
The issues of technological standards for protection of copyrighted works and portability of content are closely linked.
New York Stringer is published by NYStringer.com. For all communications, contact David Katz, Editor and Publisher, at david@nystringer.com