Copyright Law: We Have Created a Monster. How we did it, and how to work around it.

The Supreme Court clarified early in April in Kirtsaeng v Wiley that the “first use” doctrine in copyright law applied to any work lawfully manufactured anywhere in the world and purchased anywhere in the world. This ruling upset many in the publisher world, and relieved many in the library and bookseller world.

First use means that after purchase of a legally manufactured copyrighted work, the user can resell, rent or loan the work without permission of, or royalty payments to, the copyright holder. The used book and library markets, for example, are built on this foundation. Kirtsaeng was purchasing textbooks printed abroad more cheaply and reselling them in the U.S. Wiley lost on its claim that first use should also apply to the first U.S. sale of books manufactured and purchased abroad.

As Scott Turow, President of the Author’s Guild (of which I am a member), saw it in a New York Times op ed on April 7, “The Slow Death of the American Author,” the Kirtsaeng case was only the latest nail in the coffin awaiting authors. It cut off an additional revenue stream, since secondary sales do not pay royalties.

It didn’t strike me, however, as a death knell for authors — which is a subject for a different discussion. Rather, it helps rattle the print-based side of the business model foundations for certain sectors of the book publishing industry

The case, and Turow’s response, alerted me to the whole subject of the copyright law paradox, which for some years had seemed to me to have gone badly off course for the purposes I thought it was intended to serve: maintaining a balance between an author’s intellectual property rights and, in my view, the implicit transfer of those rights to readers and users when authors release their works into the marketplace.

Copyright Law: Less a Right than a Privilege

Just prior to this ruling, two books on copyright law came to my attention, which made me realize that all through my many decades in the industry, I was harboring a number of serious misconceptions. Kirtsaeng nailed it. Copyright law, as William Patry has observed, is all about business.

The two works are Copyright Unbalanced: From Incentive to Excess, edited by Jerry Britto (Mercatus Center, George Mason University), and Reclaiming Fair Use: How to Put Balance Back in Copyright, by Patricia Aufterheide and Peter Jazsi (The University of Chicago Press).

They made me realize that I had not recognized how firmly copyright law was legally grounded in the business interests of both publishers and authors as a privilege granted by government, balanced against the rights of public interest and access. I had thought it went without saying that copyright was grounded in balancing the moral right of authors to the fruits of their labor and the ownership of their intellectual property; and that copyright balanced that right with the naturally inevitable diffusion of ideas in an open society: the public’s (i.e., the individual’s) right to the unfettered use of expressions that had become absorbed in our common consciousness, discourse and experience.

However, nothing in the thoughts of the framers had anything to do with that, it turns out. In fact, I learned that authoring and other forms of artistry following the Renaissance and into the 18th and 19th centuries enjoyed little legal respect in the form of rights. It was all privileges.

In England, for example, it was the Stationer’s Company of private printers who regulated what could come into print under the Licensing of the Press Act 1662. Some years after it expired, the Statute of Anne was enacted in 1710. It brought copying under government regulation and for the first time granted authors exclusive right to publish their works for 14 years, with a 14 year renewal.

Requirements to license the use of printing presses were abandoned, and the concept of the “free press” emerged. It was the precursor of the copyright clause in the U.S. Constitution, “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”; and the Copyright Act of 1790, which also granted the right for 14 years, renewable for 14 more years.

Just a Little Bit Longer and Stronger

Efforts to extend the length and scope of copyright by printers and publishers were constant. By the turn of the 20th century, led by media and corporate business advocacy, “long and strong” copyright had become a barrier that limits innovation and free access to and use of creative works in the ordinary course of an evolving society. “Long and strong” copyright (the law now provides protection for 70 years plus the life of the author) as the cornerstone of media business models is no more reflective of the intent of U.S. copyright law as authorized in the Constitution than was my notion that it reflected respect for the moral rights of creators.

The original 1790 act and its successors also laid out procedural requirements for posting of copyright notice, without which protections could be limited or even lost. The modern Copyright Act of 1976 overrode those prior procedural traps, and enshrined copyright as inviolate and vested in the author, at the moment of creation, in any literary or other creative work regardless of nature or origin and of any contract to the contrary (your shopping list and napkin doodle enjoys this protection); it further strengthened the author’s (or their estate’s) hand by requiring the reversion of any contractually granted rights back to the creator/author after 35 years.

Copyright restrictions and penalties reached their zenith with the draconian enforcement provisions that followed in the Digital Millennium Copyright Act. It created unilateral online display takedown rights for any copyright claimant (in order to protect Internet distributors from liability), transferred liability to prove otherwise not only to commercial enterprises and professionals alleged as violators, but to any layman or even school child (or family) in the ordinary sharing of experiences — especially graphic and audio — on their social networking sites. Actual copying in any form, sharing — and copying even for other than most limited of classroom uses — became a potential criminal offense subject to astronomic fines bearing no relation to any potential damage.

The sleeping giant of popular culture awoke to realize that its hands had been tied during the long night of the ’90s and the millennium turnover and, as Aufterheide and Jasze observed, it now seemed as though the whole world was copyrighted.

Cracking the Codex

Further stirring the copyright pot, at the same time book publishing had broken loose from its print-based and prosaically formatted past. Rapidly emerging new technologies made copying easy. The Internet and word processing software passed over the old codex analog containers that held and displayed content, and content became fungible, expressed in multi- and multiple media, and easily shared.

New forms of copy protections followed suit through the adoption of licensing rather than sale of digital products, application of proprietary content management formats (DRM), and mobilization of police powers in pursuit of global print piracy. Territorial and point-of-sale definitions became irrelevant to the actual logistics on the ground and in cyberspace. Consumers followed the path of least resistance and logical convenience.

“Free” rather than “pay” became the expectation in the digital realm. The marketplace began to find ways to unbundle content and rationalize pricing. Amazon and Apple led the way, while Barnes and Noble plunged in aggressively to find a place for itself in the mix, and Kobo, launching without the ballast of bricks, print or yesterday’s hardware, showed the way to a wider arena above the battle.

Meantime, into the fog marched the media industries for whom the enforcement of copyright and the ownership of creative property became bright lights pointing the way to commercial advantage in manners not intended by the Constitution’s brief and practical objective “To promote the Progress of Science and useful Arts.

Several years ago, William Patry, addressing the turmoil roiling copyright matters wrote in Moral Panics and the Copyright Wars (Oxford University Press, 2009): “[U]nless we recognize that the debates over copyright are debates over business models, we will never be able to make the right business decisions.” (p. xv). Government created a monopoly that allows authors to act in anti-competitive and anti-innovative ways and that are harmful to the public interest, and even to their own interest. So, Patry seems to suggest that we now have a compelling interest in saving both the public and the author from their self inflicted irrational acts.

A Song Is not a Glass of Water

If, in fact copyright is now at base a weapon to be wielded in business disputes — or a legally enforced monopoly decided as a public good by the legislature — one can abandon the idea that individuals have a right to follow their own notions of self interest, and hand over the choice in all of our behalf to a wiser central government moderator. One Big Brother will now save us from another.

What I learned from Patry as well as Copyright Unbalanced is that in point of historical fact, copyright and intellectual property rights have no standing in common law on matters of possession and fairness as do rights in real or personal property.

The copyright provision in the Constitution — not a mandate but a discretionary power granted to the Congress — was placed there by the founders to satisfy a public good while providing authors with a monopoly for a short but reasonable time in order to enjoy an economic benefit from the fruits of their labor.

Tom Bell in Copyright Unbalanced urges that the notion of ownership be abandoned and instead we should think of copyright “holding.” As was noted by several authors, when tangible property is taken — say a glass of water that I am holding — I no longer have that glass of water. However, if you memorize my words or a song I am singing, or an image I have drawn, and reproduce them, I still have them as well. Or as Bell puts it, “you may leave an artist hungry by taking her bread, but you cannot silence her by stealing her song.”

As I am now convinced that intellectual property does not have the same standing as real property — and for good reason grounded in the nature of things — I have not abandoned my conviction that the writer and artist enjoys a moral right that is superior in ethical value to me than any real property’s economic value.

The intimate bond of the idea and the imagination to the mind that has developed and holds it is one that can never be taken away forcefully except with the destruction of mind and conscience itself. This, however, defines the paradox that faces the author and artist. Once a thought or image had been put out there and enters the mind of another, the bond can become just as firm as it was when the author thought of it, and as it enters that person’s process of thought and expression.

I am reminded of this poem by Henry Wadsworth Longfellow that was first read to me as a child, and has stayed with me since: characterizing what is exciting and enlivening about chance, imagination and expression. Any copyright or other laws that stand in their way are unnatural and the force of human nature will eventually break them down:

I shot an arrow into the air
It fell to earth, I knew not where;
For so swiftly it flew, the sight
Could not follow it in its flight.

I breathed a song into the air,
It fell to earth, I knew not where;
For, who has sight so keen and strong
That it can follow the flight of song?

Long, long afterward, in an oak
I found the arrow, still unbroken;
And the song, from beginning to end,
I found again in the heart of a friend.

A Fair Way Forward

Trying to address the copyright law thicket on its own ground is beyond my own ken and I think the energies of most of us in the business. Since the mainstream of publishing is trapped in its own reliance on “long and strong” copyright as the foundation of its business models, we cannot expect help from our brothers and sisters in that realm..

Instead, we can take heart in reliance on the common sense, common practice of ethical behaviors and business dealings, and on workarounds that will keep the law out of our way and, if it tries to get in the way, will keep us out of trouble.

That is my main takeaway from Reclaiming Fair Use: How to Put Balance Back in Copyright. I cannot recommend it too highly to anyone whose energies are engaged at any point along the way in the great adventure that lies before us in the creative arts — with the barriers of copyright enforcement looming ahead in geometric proportion to the creative opportunity.

Aufdeheide and Jaszi start with the simple reminder that since 1978, “all expression that ends up in a fixed medium (and that means everything…) is copyrighted by default.” Whereas “for centuries no one much thought about copyright in daily life, now we don’t have a choice. … We need to reclaim the conversation about copyright as something that belongs to all of us.”

Granted that the big media companies have “[turned] their customers into their enemies, the basic notion that copyright holders deserve to be paid for their work, if they choose, is not going to be challenged usefully any time soon.”

Fair Use as a concept embedded in law provides a way out of the defensive maze created by the lawyers and the courts. For those with big ideas and small budgets, a way out is offered from the fear, caution or capitulation in advance of any effort to range out of what is safe and conventional — whether in the creation of new works, or in the assembly of useful combinations out of old ones.

The tools they prescribe are worked through in engaging and practical detail. What they require are the creators to create and document codes of fair use and conduct that businesses and professionals within their zones of activity sign up for and voluntarily adhere to; as well as documenting the fair use rationales they use when creating specific works so that the agonizing process of trying to get permission for every jot and tittle (to coin a phrase) can be avoided..

Among the examples of best practices in fair use they cite are Documentary Filmmakers Statement of Best Practices in Fair Use, and Code of Best Practices in Fair Use for Media Literacy Education. Independent publishers and author trade groups would be well advised to follow the example of their colleagues in film, video and graphics, and undertake developing similar codes that through usage would acquire standing in response to assertions of negligence or arbitrary misappropriation of property in threats of legal action.

Lost in the Fun House

Having gone this far in this discussion, I would like to offer a closing treat for those of you with any degree of experience with the ironies and enigmas of intellectual property rights.

It is from an informed, serious, at times hilarious, and immensely useful presentation of the permissions maze in the use of art works, Permission, A Survival Guide: Blunt Talk about Art as Intellectual Property, by Susan M. Bielstein (University of Chicago Press, 2006).

In this work, Bielstein, executive editor for art, architecture, classical studies and film at the University of Chicago Press, guides us through the layers of rights that encrust many images — from the original subject (and its creator if the subject itself is the treatment of another work of art), the photographer or artist who rendered the subject, the medium in which it appeared, and other underlying stakeholders in the imagery, such as museums or estates who hold he work.

So, for a foretaste of the relish with which she presents her subject and opens us up to it — and in a way provides a prelude to the entire theme with which we are concerned in this article — I quote from her first chapter, “Permissions: A Love Story”:

“Should you ever find yourself magically alone in the administrative wing of one of the great libraries, publishing houses, or art institutions that grace the City of New York, you might want to tiptoe past the director’s office in favor of a brisk walk down the hall, past the offices occupied by the usual satrapy. …

“As the light in these far reaches goes dimmer, you may find you have to squint a little as you find your way ever on, past the washroom, taking care not to stumble over the janitor’s bucket. When you reach the last door… don’t bother to knock, just enter.

“You are now inside the fun house — or chamber of horrors, depending on your view… you will find this a world in which the fragile distance between a belly laugh and a Manichean scream can dissolve in a blink. It is the world of intellectual property, and this is a rights and permissions office.”