Abstract

In this 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.

The first Forum examined Who Owns Research and Teaching? The final event in the series on Wednesday, Nov. 6, will consider Copyright and Culture.

Speakers

Rosemary Coombe is 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.

Mark 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 Service.

Respondent: W. Curtiss Priest directs the Center for Information, Technology & Society.

Summary

[This is an edited summary, not a verbatim transcript.]

MARK 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. Lloyd 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 [1709] Statute of Queen Anne.

The British 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 and discoveries."

The Copyright 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.

The next 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.

The debate 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.

In 1976, 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.

As this 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.

"Whatever 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 1998.

Does Congress 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.]

Lloyd concluded 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.

ROSEMARY 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.

Can the exercise of intellectual property rights be reanimated and reshaped, Coombe asked, to include such notions as creativity and social obligation?

In The 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 of property.

Moreover, 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.

The World 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.

Globally, 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 insult.

Many scientists, 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.

Of course, 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.

W. 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."

Priest then 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.

Priest asked 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.

Lloyd said 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 they stand."

Coombe added 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 events.

Discussion

BRAD 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.

DAVID 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.

Coombe said 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.

An audience member asked for clarification of the distinction between patent and trademark law.

Coombe: 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.

Coombe observed 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.

Question: What is the definition of "fair use."

Priest, 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.

Priest described 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.

An undergraduate 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 public use.

Priest said he believed collaborative software was a potential liberating force.

--compiled by Susannah Mandel, CMS 2003
--photos by Nadya Direkova, CMS 2003