Why Open Content Matters
From the passage of the first copyright legislation in Congress (1790) until the passage of the Chace Act almost exactly one century later (1891), the US enjoyed what may well have been the optimum copyright regime for democratic political deliberation and all of its positive consequences, including rapid social and economic development.
Mandated by the US Constitution (Article 1, Section 8), US copyright law gives copyright holders the right to duplicate, distribute and perform works that are "fixed in a tangible means of expression"; however, the protection applies only to the expression of the underlying facts and ideas, not to the facts and ideas themselves. In Folsom v. Marsh (9 F. Cas. 342 [C.C.D.Mass. 1841, No. 4,901]), Justice Story introduced the British doctrine of fair use, which holds that the state must indeed endeavor to secure for authors the enjoyment of their copyrights but not to the extent that doing so places "manacles upon science" (Lord Ellenborough, quoted in Loren 1997).
The fair use doctrine establishes guidelines--complex and situationally dependent ones, to be sure--that permit authors to appropriate the expression found in copyrighted works without seeking permission or paying royalty fees, so long as the appropriation is done for the purposes of analysis, commentary or parody. But the US system went much further than this. As originally formulated, US copyright law would also have delivered the entire copyrighted work--facts, ideas and expression--to the public for such purposes after a maximum copyright period of only 28 years. After copyrights expire, works become part of the public domain. This principle has been decisively affirmed by the US Supreme Court: "The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors" (my emphasis; Stewart v. Abend, 495 US 207, 228 ). What is more, no copyright protection was given to any work published by foreign authors, and some argue the original US copyright law actually encouraged US citizens to pirate foreign works. To justify this policy, Alexander Hamilton pointed to the need to foster infant American industries. Protection for foreign copyrights was not recognized in the US until the passage of the Chace Act in 1891 (Post 1998). In sum, the democratic aims of copyright as envisioned in the US Constitution, "promoting the progress of science and the useful arts", were obtained, during the first 100 years of the US republic, not only by guaranteeing authors a period of protection for their writings, but also by withdrawing this protection after a "limited time" and by permitting no protection whatsoever for foreign authors. Central to the Constitutional conception of copyright, in short, is a flourishing public domain in which authors can readily appropriate the expression of other authors.
What is the public domain, and why is it so important to the growth and development of a democratic civil society? Yochai Benkler, a law professor at New York University, defines the public domain in these terms: "Information is "in the public domain" to the extent that no person has a right to exclude anyone else from using the specified information in a particular way. In other words, information is in the public domain if all users are equally privileged to use it" (Benkler 1999). This is an exceptionally important definition because it highlights the importance of the public domain for political speech: If one is making use of a public domain document, one is free from the restraint that must necessarily accompany the "fair use" of a copyrighted document; as the courts have repeatedly stressed, just what constitutes "fair use" is impossible to define a priori and rests, ultimately, on a court's judgment. Ensuring the eventual passage of copyrighted material into the public domain provides the only sure way that future writers can fearlessly appropriate works of expression, recombine and reformulate them in new and compelling ways and make the resulting reformulation available to the public.
If an expansive and permissive definition of fair use and the rapid flow of information into the public domain are vital to a thriving civil society, the US is in serious trouble. Driven by lavish donations from lobbyists representing wealthy copyright holders and media corporations, the US Congress has passed a series of laws (including the notorious Digital Millennium Copyright Act of 1998) that not only restrict or eliminate fair use insofar as digital media are involved, but also criminalize any attempt to circumvent copyright management systems (even if no infringing duplication takes place!) and extend the duration of copyright to the point of near-perpetuity (with extensions, more than 150 years). The most recent example of such legislation is the Copyright Term Extension Act (CTEA) that extends existing copyrights for 20 more years so that cartoon figures such as Mickey Mouse will remain protected. One result of CTEA is that no copyrighted works will enter the public domain for an entire generation. (For an excellent overview of the transformation of copyright into something approaching real property, see the excellent legal review by Fisher 1999, which is available on-line.) Other laws at the state level, such as UCITA, would give the force of law to "click-here" license agreements for digitized written works. One such license, the one you agree to when you use Adobe's Glassbook Reader, reportedly forbids licensees from reading the work aloud!
There's more legislation on the way. For several years, the US has been mulling over various versions of a database protection bill (for an overview, see Band 1999; for an update, see Yu 2001). The bill's impetus is the US Supreme Court's surprising decision in Feist vs. Rural Telephone (499 US 340 ), in which the Court refused to recognize that a telephone book, despite the undeniable cost and labor required to assemble it, contains a form of expression of sufficient creativity or originality to merit copyright protection. The decision cast into doubt whether digitized databases, such as collections of full-text newspaper articles, could be protected by copyright in the absence of some sort of creative organization. But the whole point of a relational database system is to avoid organizing the material a priori so that users can retrieve material in the most efficient manner possible. Feist implies that databases cannot be protected at all--which is why database vendors are so keen on claiming new forms of protection for their products. Another reason lies in the need to bring US law into conformity with the World Intellectual Property Organization (WIPO) treaty, which calls for special forms of protection for databases. What's generally omitted in discussions of WIPO, however, is the fact that US database and software vendors played a significant role in shaping the WIPO documents.
If database vendors succeed in their lobbying efforts, for-profit vendors of newspaper articles and scientific journals may be able to lock up not only the expression found in these articles, but even the facts and scientific findings contained in them; a major impetus for this legislation is to restore the principle, abandoned in Feist, that the "sweat of one's brow" is worth something after all. Access to such databases could be controlled by means of copyright management systems (CMS), the circumvention of which is already a criminal act subject to penalties in excess of those used in cases of second-degree murder in most US states. To be sure, market economics may demand that database vendors do not impose strong access constraints on users of archival materials. But the point is simply this: They could. What is more, they can do so on the basis of whatever whim happens to occur to them at the moment. This is a point best appreciated by noting the long, expensive struggle waged by the AFL-CIO and other labor unions to gain access to business databases offered by Dialog Information Systems, Inc. Union researchers could of course access the same material by visiting a university library, but the inefficiency of non-computerized research techniques prevents them from competing effectively with their corporate counterparts, such that the playing field is no longer level.
In sum, the public domain is essentially dead, fair use has been constrained to the point of irrelevance, and digitized information is increasingly locked up in systems protected by Draconian anti-circumvention penalties. For now, you can still go to the library to access much of the digitized information for free, but you'll sacrifice the efficiency gained from using computerized search tools. And when print media finally disappear, it's anyone's guess whether anything from today's public libraries will survive in their present form.
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