second of three linked forums, we will examine notions of copyright
and ownership as they are evolving in the market place, among
corporations, producers, and artists, and will speculate on
the broader cultural implications of the new forms of creativity
but also of control latent in digital technologies.
Forum examined Who Owns Research
and Teaching? The final event in the series on Wednesday,
Nov. 6, will consider Copyright
the author of The
Cultural Life of Intellectual Properties: Authorship, Appropriation
and the Law (Duke University Press, 1998) and numerous
articles on legal theory, cultural anthropology and cultural studies.
She is a visiting scholar in the MIT Comparative Media Studies
program and a fellow of the Berkman Center on Internet and Society
at Harvard University.
Lloyd is the Martin Luther King Visiting Professor at MIT
and is the executive director of the Civil
Rights Forum on Communications Policy where he works with
leaders in the civil rights and public interest community to
influence federal, state, and local communications policy. He
worked on communications and arts policy in the Clinton Administration,
co-founded the Civil Rights Telecommunications Forum in 1997,
served as national coordinator of the People for Better TV campaign,
and chaired the board of directors of the Independent Television
W. Curtiss Priest directs the Center
for Information, Technology & Society.
is an edited summary, not a verbatim transcript.]
LLOYD observed that the Federal
Communications Commission is currently examining the
"broadcast flag" question - whether broadcasters
should be permitted to "flag" or imprint their
signals so as to make them difficult to copy, or at least
to reduce the quality of copies. The FCC is taking comment
on this issue from the public; and Lloyd encouraged interested
parties to express their opinions.
then provided a brief history of copyright law in America.
The U. S. was the second nation in the world to introduce
copyright law; its rules were modeled on those first introduced
by the British Parliament, under the  Statute of
copyright law provided limited protection to authors; it was
intended primarily to protect publishers and those who used
the books effectively owned by the publishers. The U.S. took
a somewhat different approach. The Constitution reads: "The
Congress shall have power to promote the progress of science
and useful arts by securing for limited times to authors and
inventors the exclusive rights to their respective writings
Act of 1790 protected authors' works for 14 years and permitted
an extension of copyright for another 14 years. The framers,
said Lloyd, aimed for a balance between public good-what the
public had access to and could use-and the authors' and creators'
right to profit from their work.
major revision of copyright law was enacted in 1909, at the
urging of President Theodore Roosevelt. It extended copyright
protection from "14 plus 14" years to "28 plus
28": a total protected period of 56 years.
surrounding this act is instructive, Lloyd said, for it explicitly
acknowledged the need to balance the "protection of the
composer" (to profit from his music) with the "protection
of the public." This debate also recognized the danger
of "oppressive monopolies" which might base their
claims on "the very rights granted to the composer with
the purpose of protecting his interest." The 1909 extension
of copyright occurred in an era marked by public debate about
the dangers of monopolies, and this context is important to
our understanding the origins and evolution of copyright.
U.S. copyright law was expanded to cover new technologies, including
radio, television and others. The revisions also addressed the
question of "fair use," adding exemptions to copyright
protections intended to help protect libraries and educational
institutions. The period of copyright protection was also expanded
to 50 years beyond the life of the author. In 1998, Congress
added an additional 20 years to all existing copyrights.
history reveals, the original, sharply delimited period of protection
offered by the copyright law has gradually been expanded-from
the original upper limit of 28 years, to 56 years, to the current
astonishingly long period - 70 years beyond the life of an individual
author; 95 years for corporations owning copyrights.
balance the framers had in mind has been lost," Lloyd said.
Many observers blame Mickey Mouse for this situation, Lloyd
joked, for the Disney corporation has been a powerful lobby
for an extension of copyright protection, presumably to allow
it to maintain control over its earliest creations, particularly
Mickey himself, whose earliest versions would have entered the
public domain in 2003 if copyright had not been extended in
have the right to interpret the word "limited" as
used in copyright legislation to mean essentially "indefinite"?
Not if we respect the original aims of copyright and the language
of the Constitution, Lloyd said. [Lawrence Lessig, professor
of Law at Stanford University and co-founder of the Creative
Commons initiative made this argument
before the Supreme Court on October 9, six days following
Lloyd's appearance at the Communications Forum.]
by reminding the audience that the issue of copyright extension
is not the only urgent question we face concerning intellectual
property. For example, should music or audio-visual materials
that are broadcast or shared on the Internet or sold over the
counter be coded to prevent copying? Should recording and playback
technologies contain features that degrade or disable duplication?
Such questions touch not only individual consumers of music
or movies but also scholars and institutions such as universities,
libraries and newspapers, for whom the right to make "fair
use" of copyrighted materials is critical.
COOMBE believes that much of the discourse on intellectual
property has been restricted by the individualist, entrepreneurial
perspectives of Western technological societies. There
are cultures whose inhabitants engage in other kinds of
"creative world-making" that also deserve protection,
she said. Too
much of current intellectual-property law protects not
creativity but investment. And a global perspective might
suggest that this framework grants too many authorial
rights, and not enough responsibilities. This Western
framework fails to recognize the obligations that creators
in many parts of the world feel toward ancestors, future
generations, and toward the plants, animals and spirits
that share the world with humans.
exercise of intellectual property rights be reanimated and reshaped,
Coombe asked, to include such notions as creativity and social
Age of Access, Coombe explained, author Jeremy Rifkin describes
how corporations, following the principles of "lean production,"
act to divest themselves of non-intellectual forms of property.
One result is that information and power are pooling in fewer
and fewer corporate hands, to the detriment of innovation, human
health, and food security. Another important result is that
"control of intellectual property through strategic licensing"
may permit corporate actors to avoid forms of ownership that
would subject them to local accountability and social control.
By driving to become information-based, that is, industries
can escape the regulations governing ownership of other forms
U.S.-based, multinational business elites are pushing hard to
influence developing nations' laws and practices concerning
intellectual property. The rights of industrial authors threaten
to eclipse other rights: moral rights, rights of cultural self-determination,
rights of information access, and the right to pursue independent
national cultural policies.
But there are also counter pressures to those created by a corporate
framework for intellectual property.
Intellectual Property Organization [WIPO] has a new mission
to reach out to new beneficiaries, and is developing strategies
for protecting traditional work, knowledge and folklore. Under
the Convention on Biological Diversity, more than 180 nations
(the U.S. not among them) committed themselves to using intellectual
property to further biodiversity and sustainable development,
and to promote the practices of indigenous communities. Such
efforts to protect traditional knowledge may also mean protecting
the right to cultural self-determination.
those who provide "resources" considered to be in
the public domain have been at a great disadvantage compared
to those who create "authored" works. For many world
peoples, the concept of a "public domain" has justified
an ongoing impoverishment: art forms, dances, and other cultural
practices and artifacts have been utilized in texts and art-works
created by Western authors. But the cultural elements embedded
in these works have been considered "merely part of the
public domain," which has led to a sense of injury and
Coombe suggested, are also increasingly aware that biological
diversity is, in some senses, a human creation. Most "natural"
landscapes - for instance, rain forests-are at least in part
a result of human cultivation. To a degree, then, nature itself
is a product of human creativity. Such perspectives should widen
and complicate current conceptions of copyright and of creativity.
this sort of radical expansion of our notions of copyright is
potentially dangerous as well as empowering. Salient objections
have been raised by indigenous peoples themselves: By copyrighting
culture, cultural identities may be frozen, and the collective
may be reductively understood as a kind of romantic author.
But if we
wish to imagine a true "public domain," if we wish
to think seriously about a creative commons, we must consider
more than the rights of artists and creators in Western societies.
A creative public domain framed entirely by Western legal principles
would be a mistake. It should cover a wider range of activity
than those that serve the needs of Western authors, recognizing
the diversity of creativity and work across cultural traditions.
CURTISS PRIEST, respondent, broadly agreed with both
speakers. Extending the term of copyright to 70 years beyond
the life of the author, as the U.S. has recently done, will
stifle creativity, giving us a stagnant culture in which
new voices may be "drowned out by . . . prior, legally
sanctioned cultural messages." We must protect intellectual
property, he said, and yet allow for the creative fluidity
and freedom essential to a vibrant society. Even Adam Smith,
he said, recognized that profit and greed - the principles
which "guide us to prosperity" under capitalism
- are "myopic in their recognition of the wide range
of human values."
asked Coombe to clarify her notion of "responsibilities"
in the context of the rights granted by legal copyrights. Coombe
replied that despite the body of jurisprudence that conceives
rights as balanced against responsibilities, she doesn't see
an inherent dichotomy separating rights and responsibilities.
Her position is based on an international human rights framework,
which views what the U.S. calls "civil rights" as
only a narrow subset of social rights. These broader rights
might include the right of collectivities to flourish; the right
to protect one's language; and the right to engage in the public
sphere in ways still true to one's own cultural traditions.
Lloyd if he could name some politicians, aside from Massachusetts
Congressmen Edward J. Markey and Barney Frank, who consistently
bring "the non-corporate message" before Congress.
he does not think, generally speaking, politicians can be counted
on unless they know their constituents are behind them. He emphasized
Congressmen feel frustrated by public silence on issues that
interest them personally. We cannot expect Congress to "read
our minds: They have to hear from you without regard to where
that although Americans may not yet be marching in the streets
over copyright issues, large-scale protests do occur in other
parts of the world: farmers have marched in the streets in India
protesting patents, entire villages have declared themselves
patent-free zones, and thousands of people have deliberately
put knowledge into the public domain explicitly so that it could
not be sequestered. Coombe suggested that the media channels
available to Americans are, perhaps, so thoroughly "colonized"
by corporate interests that most Americans aren't aware of these
JOHNSON, MIT geosciences: I understand that the idea of
unlimited copyright is basically a U.S. idea. If the purpose
of limiting copyright is to spur creators to produce new works,
what's the point of extending it after the author's death? In
general, you don't need to pay artists and creators very much
to get them to produce work - in fact, if they don't starve
to death, that's usually all they ask.
THORBURN pointed out some important distinctions need to
be made. Protecting novelists, poets and songwriters is a different
matter from establishing copyright or patent control over DNA
or databases in the sciences or social sciences.
the framing of this question is important. Corporate lawyers
are indeed "trotting out the rhetoric of the individual
author" to use in defending their patent claims - in which,
she said, they essentially have two interests: first, protecting
their investments, and, second, guaranteeing their market share.
Yet these corporations use the entire gamut of intellectual-property
rhetoric to make their cases. Coombe suggested a clearer distinction
should be made between protection for mass-marketed, industrially
produced entertainment products, and the creative endeavors
of individual artists.
member asked for clarification of the distinction between patent
and trademark law.
Think of the nineteenth-century distinctions among art, science,
and commerce. Copyright protects literary, dramatic, and musical
arts. Patents cover science: innovations, technologies, new
compositions, chemical manufacturing. Trademark covers commerce:
vehicles for selling goods, for protecting consumers and preventing
unfair competition. The term for patents is shorter, but provides
a more absolute protection against copying or imitation. Copyright
has longer terms, but includes some exemptions. Trademarks can
last forever, but only if they continue to identify a single
producer as the source of the goods in question.
that corporations use all three categories to protect their
properties and maximize profit. When more than one form of coverage
is put into play, she said, it is called convergence. Fictional
characters are an example. They may be trademarked and copyrighted,
as well as protected under separate provisions that cover the
"publicity rights" of celebrities.
What is the definition of "fair use."
Coombe and Lloyd all contributed to the answer. Fair use
is not a right so much as a defense. It is spelled out in Section
706A of Title
17 of the U.S. Code, in the Copyright Law of 1976. It provides
protection for those who might otherwise be in violation of
copyright law. Exemptions cover derivative works, educational
institutions, and libraries, and various purposes: criticism,
commentary, parody, certain teaching purposes. Priest said that
a legal challenge against videotaping - engendered by the appearance
of the Betamax videorecorder - created a new category, "intrinsic"
fair use, which allows individuals, for instance, to record
material and play it back later. Coombe added that American
"fair use" laws have no equivalent in other jurisdictions
- e.g., in Australia, Canada or the U.K.
a specific exemption called "the teachable moment,"
which permits teachers to use protected works or segments of
a work in the classroom. However, these protections do not exist
after the moment of "spontaneity" has expired.
from the University of Massachusetts at Amherst described
a professor who made a widely-distributed video about MTV in
the early 1990s, called Dreamworlds. MTV contacted him
to assert their legal control of this material, but the professor
called his local newspaper, saying that MTV was infringing on
his free speech. MTV's complaints disappeared. He then asked
how digital technology might function as a liberating force,
eroding the ability of corporations to keep culture from the
he believed collaborative software was a potential liberating
by Susannah Mandel, CMS 2003
--photos by Nadya Direkova, CMS 2003
recording of the "Creativity/Markets/Copyright"
forum is now available. In order to listen to the archived audiocast,
you can install RealOne Player. A free download is available