Today, the concepts of copyright and intellectual property are given far more attention than they have garnered at any other point in history. The way the world works has been drastically changed, and seemingly overnight the ``Information Age'' was born. This is a world where whole sectors of the economy exist to produce, catalog, and distribute information. The rise of the computer and digital transfers have all but eliminated the costs of reproduction. Increasingly, this has led those who own intellectual property to call for Congress to grant them further protections, so that they are better able to control their assets. As such demands are considered it is crucial to examine them in the context of history, looking at not only the market today, but also the intent of the Framers' when granting Congress the ability to create such a system. When created, the copyright system was held in a balance. On the one hand were the rights of those who would create information; on the other stood the rights of the public. Today, however, this give-and-take has been shattered, with the rights of information producers managing to trump those of the public. This imbalance, if not corrected, threatens to destroy the public domain, and one of the core freedoms on which this country was built.
When discussing modern incarnations of copyright, it is important to first step back and gain context on the concept and the reasons for its necessity. Copyright is a modern concept, dating back only to the time of the printing press. Before the ability existed to mass produce a work, publishing was not even an industry. Books were only economically viable when commissioned by a rich patron. The arrival of the printing press changed all that, but even then the laws of copyright were slow to be put into place. In fact, the first such law was the British Statute of Anne, issued in 1710. It created the first limited monopoly for the authors of books, giving them the sole right to publish their works in order to allow them to survive economically (Tallmo). Similar justification is the driving force behind modern copyright.
Analysis of copyright must also include a look at its counterpart, the public domain. Though arguments over the precise definition and contents of the public domain are an ongoing topic for numerous academic writers, in general it can be understood to consist of everything outside of copyright. This includes both works that were unprotectable in the first place (for instance facts or numbers) and works that have seen their terms expire. A paper published by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) says that the public domain is a source from which authors may draw inspiration. Its contents may be used ``as raw material and a kind of "suggestion box" by fresh generations of creators'' (Buydens 37). Countless books and movies have drawn their ideas from the public domain works of Shakespeare. Virtually the entire Disney cartoon library is a product of tales found in the public domain. As a source of free material its economic impact is immeasurable. Yet, despite this, copyright exists to regulate what is and is not available for such use.
Copyright was first established in the United States via the Constitution. In Article 1, §8, Congress is given the right ``To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries'' (US Const.). Yet even this inclusion was the source of much debate. Thomas Jefferson was strongly opposed to the notion of intellectual property. He despised the notion of monopoly, and only reluctantly accepted the notion that copyright must be allowed for its economic benefits. In a letter to James Madison, he argued that the Bill of Rights should include an article limiting copyright to a unspecified number of years, but no longer. He proposed, ``Art. 9. Monopolies may be allowed to persons for their own productions in literature & their own inventions in the arts, for a term not exceeding ... years but for no longer term & no other purpose'' (Jefferson 08/28/1789). Jefferson felt that the wording as written in the text of the Constitution was too vague, and that without limitations the government would expand its powers too far.
It is important to note that copyright is not considered a natural property. Jefferson himself alluded to this in another letter to Madison, saying that monopolies such as copyright were not inherent rights. ``This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country ... and it renders the question of reimbursement a question of generosity and not of right'' (Jefferson 09/06/1789). James Boyle, a professor of law at Duke University, says that this must be kept in mind. ``That baseline - intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain - is still supposed to be our starting point'' (Boyle 39). He argues that it is from this position that the copyright debate must be fought.
The copyright provision in the Constitution provides a good example of the ``cultural bargain'' it embodies. In order for the public to agree to give up certain rights to the copyright holder, they must receive something in return, in this case the utility derived from additional knowledge entering the public domain. The provision accounts for both of these requirements. The limited monopoly granted to authors provides a period in which they are able to support themselves via sales of their work. The public's interest is satisfied via fair use rights and the limited term of the monopoly. A paper written by USC Annenberg Fellow David Bollier and published by the public domain protection group Public Knowledge lays out the principle of this exchange. ``Authors receive exclusive monopoly rights on their works for a limited period and, in return, the public receives certain rights of fair use, free access to works after the copyright term has expired and other enumerated uses that benefit the public good'' (Bollier 11). Copyright is then, in essence, a give and take. The need for balance is even recognized by the Recording Industry Association of America (RIAA), an organization committed to increasing the rights of the artists it represents. Their web page on copyright says that copyright revisions ``have been aimed at balancing the author's right to reap the benefits of his or her work, and society's ability to benefit from that same work'' (RIAA). Copyright has been changed over the years, but the RIAA's contention that the alterations have worked to provide more balance is highly questionable.
Copyright in the United States has seen many changes in both scope and duration since the first Federal law was passed in 1790. From their initial twenty-eight years, copyright terms have been extended four times. In 1831, the term became forty-two years, and then it became fifty-six years in 1909. In 1976 copyright was overhauled, and the term became the life of the author, plus fifty years. 1998 saw that fifty become seventy, bringing the law to where it now stands. These changes apply not only to works created after the extensions were passed, but retroactively to previous works as well. In addition, copyright has seen its breadth blossom since its inception. Originally copyright only applied to books, maps, and charts. Today copyright covers ``original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device'' (17 USC §102). The requirements for a work to be granted copyrighted status have also been made far less stringent. Requisites that a work even contain a copyright notice have been completely abolished.
Controversy surrounds copyright's expansion. Recently the Supreme Court decided the case of Eldred v. Ashcroft, which challenged the Constitutionality of term extensions. Though Eldred lost the case and current copyright law was affirmed, it is informative to analyze the arguments his side put forth. The lawyers for Eldred advanced several challenges, one of which questioned whether the grant of longer terms could possibly serve to advance the purpose set out in Article 1, §8. They took particular exception to the retroactive extension of terms, arguing that nothing can provide incentive for the creation of a work that already exists. As Bollier puts it, ``If copyright is intended to induce creators to create new works, the law is clearly absurd: a retroactive extension of copyright protection will not induce dead authors to produce new films, songs or literature'' (Bollier 12). An article by Lawrence Lessig, lead lawyer for the plaintiff in Eldred, states that of 10,027 books printed in the year 1930, only 174 were still in print at the time of writing. Though all would have originally had their copyright expire in 1987, term extensions have locked all of these works up until at least 2019 (Lessig ``Copyright Law''). Supreme Court Justice Breyer, in his dissent in the Eldred case, makes it clear that the copyright term must serve the bargain set out in the Constitution's Copyright Clause. Partially quoting Steward v. Abend, he writes, ``The 'reward' is a means, not an end. And that is why the copyright term is limited. It is limited so that its beneficiaries - the public - 'will not be permanently deprived of the fruits of an artist's labors''' (Breyer 4). Clearly recent extensions did not provide an incentive to those who no longer have their copyrighted materials available for purchase, and yet the retroactive nature of the extensions entailed that the public would not be able to fully appreciate their end of the exchange for additional decades. According to the UNESCO paper, these term extensions fatally damage the idea of the public domain. It says that term extensions mean that ``the community's right to make free use of a work after it has fallen into the public domain will be a theoretical possibility rather than a fact. The present duration of copyright protection often exceeds the period during which the created work is in fact usable'' (Buydens 39). The balance of copyright has been upset, with the rights of the few - copyright holders - being valued over the rights of the public. Lessig writes that ``The framers would never have allowed millions of monopolies for the benefit of just 2 percent; they would not have sacrificed the public domain to benefit a favored few'' (Lessig). In fact, James Madison, himself a proponent of copyright, argued to Thomas Jefferson that he felt confident that this sort of imbalance would never occur. He wrote,
Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many (Madison 10/17/1788).The changes to copyright law, in their valuation of the copyright holder with only very limited concern for giving corresponding rights to the public, represent exactly such a grant to the few.
Lessig, too, was concerned by Congress' abuse of power in granting terms that showed such imbalance. In Eldred he attempted to argue that by Congress having the ability to retroactively extend copyright, their powers in that area would be without bound. After the Court issued their decision against Eldred, Lessig wrote a long introspective on his web site. On it he wrote that
beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress's enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected (Lessig ``The silent five'').The Court's opinion on the case had ignored this argument, something Lessig finds it hard to comprehend. He writes, ``my frustration in reading the Court's work in this case is the failure to apply its principle, or at least explain why not'' (Lessig ``The silent five''). Congress, with unchecked ability to extend copyright, finds itself under no obligation to keep it tied to the logic that had previously dictated its terms.
Originally, the copyright term was correlated to an economic principle. It was designed to allow the author to be remunerated for their work, but not to extend arbitrarily past that time. Today, however, technology has drastically altered the principles of how long a work is economically viable. Much of the impetus for change has been the growth of the information technology (IT) sector. Computers, with their ability to amass and cross-reference enormous quantities of data, have revolutionized access to information. In 1970, Alvin Toffler wrote of the then rapidly increasing rate the world was generating knowledge. He writes that ``The rate at which man has been storing up useful knowledge about himself and the universe has been spiraling upward for 10,000 years'' (Toffler 30). He quotes Philip Siekevitz, a biochemist, as saying that ``what has been learned in the last three decades about the nature of living being dwarfs in extent of knowledge any comparable period of scientific discovery in the history of mankind'' (31). Computers provide both the means for generating additional knowledge, and for storing and indexing it. No longer must information be stored in disparate collections, accessible only via the traversal of massive amounts of paper. Instead, the almost sum knowledge of the world today is available via the Internet, a massive global collection of computers. This wholesale aggregation of information has led to a meteoric rise in the valuation of data that is current. No longer can materials be counted on to sit on shelves for years and still remain relevant. Though this change is driven by the rise of IT, it is not confined to it. An article in Fire Chief magazine talks about the dramatic change experienced in that industry. ``In the fire service,'' the article reads, ``the concept of information becoming out of date was once almost laughable, with training manuals changing very little over 50 to 60 years. Today, much of our training information is almost obsolete by the time it gets to the bookshelf'' (Coleman 24). The pace of information creation has quickened drastically, leading to far shorter useful lives for information, and a shorter period in which an author must recover their creative investment. Yet the same time has seen copyright terms balloon. The threat today is very real that by the time a work falls into the public domain, it may not only be useless, it may also be unreadable. UNESCO writes that ``After 70 years or more, an old computer program is of no use to anyone'' (Buydens 39). If one were to take a look at the pace of computer innovation in its very brief history to date, it's clear to see that architectural changes have occurred rapidly, and that it is absurd to think that software developed today will have no utility when it falls into the public domain in 75 to 100 years.
Those affected by recent intellectual property decisions often do not even realize what it is that they are missing out on. The public domain is today thought of by many as a static collection, comprised solely of classic literature. Bollier encourages use of the term ``information commons,'' instead of the ``public domain.'' This term, he says, is useful ``because it does not imply a static set of information genres (copyright-expired books, government documents, etc.), but a dynamic ecological system of creativity and communication'' (Bollier 11). Regardless of what it is called, though, it is clear that the public domain is intended to be a growing repository of information. Instead, recent treaties and alignments with foreign law have served to stagnate or even drain the pool of available works.
It would be difficult to recognize the effect of the 1994 Uruguay Round Agreements Act by simply looking at its name. This distant outcropping of the Berne Convention was the US implementation of agreements made to grant copyright to many foreign works which had been ineligible at the time of their publish (for reasons such as failure to renew, and failure to affix a copyright notice). This followed on the heels of the 1993 North American Free Trade Implementation Act, which restored copyright protection to Mexican and Canadian films that had been in the public domain for similar reasons. These two laws, along with the 1998 term extension, were the cause of a lawsuit brought by several plaintiffs, including conductor Lawrence Golan. One of the major challenges in Golan v. Ashcroft is to the constitutionality of removing a work from the public domain. The complaint cites Graham v. John Deere Co., a 1966 Supreme Court case. In particular, attention is paid to a statement in the majority opinion that addresses the public domain. It reads, ``Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available'' (Graham). The plaintiffs in Golan cite this line as concrete evidence that once a work is in the public domain, it may not be removed. The government, however, disagrees with that interpretation in its response. Instead, it says that only works voluntarily surrendered to the public domain - by, for instance, not filing a patent - are irrecoverable. This case, stayed while the Supreme Court decided the Eldred case, is now free to move forward and will make its way through the courts.
Looking at the copyright system as it stands today, one would be hard-pressed to compare it to the simple system first passed in the Constitution and put into place in 1790. Originally, copyright was a work of necessity, providing exactly the compensation authors needed in order to provide for themselves. Today it is a sprawling economic industry, generating a large portion of the national revenue. The changes to copyright have come without the requisite enhancements to public rights, leading the copyright system of today to balance the public cost and benefit entirely differently. Though the Supreme Court has been reluctant to limit the powers of Congress to manipulate copyright law, there is still recourse available to a public that should feel very slighted by its loss of rights. The impetus for legislative change must come from the ground up. In order for the balance of the system to be restored, the public must become aware of its power and require that its legislators enact revisions. Only then can the cultural and economic value of the public domain be restored and the copyright system returned to its original purpose.