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TARLETON GILLESPIE: In this chapter, we'll have an introduction to copyright law, where it came from, and what kind of challenges it faced from the beginning that have persisted to today.
I want to start with a short caveat that says I'm a sociologist and not a lawyer. This is not to be taken as legal advice. If you want a more substantive summary of the law itself or the actual text of the law, there will be links to those on the website.
Copyright law is designed to give you exclusive rights over the things you create. Those rights include the right to duplicate, the right to distribute, the right to perform, and the right to make derivatives of the book, the song, the poem, the painting, the film, the website that you've created. By derivatives here, I mean sequels, translations, abridgments, remixes, et cetera.
Your rights under copyright begin the moment you create your work and you fix it in a tangible medium. So the second you put pen to paper, that Post-it note, or doodle, or shopping list is legally yours.
You can sue someone if you find they are infringing your rights by publishing your work, copying it without your permission. And perhaps, most importantly, those rights can be licensed away.
So when I wrote my book, the moment I wrote it, it was mine, according to copyright's property rules. But when I signed the contract with MIT Press, I handed those rights over in exchange for royalties. Now MIT Press holds the rights to my book, and even I would have to ask permission if I wanted to republish it somewhere else.
Let's take a quick look at the history of copyright, not because the history is necessarily important per se, because the history gives us an opportunity to see that some of the tensions we're facing right now are not new.
It also helps to denaturalize copyright a little bit. We've lived with the ideas that copyright represents for so long, they can often end up seeming logical, normal, inevitable. It's important to be able to look at this law and see what it's accomplishing and what it's not accomplishing, and to take it to task if we think it's not reaching the ends that we are hoping for.
In the 1600s, a market was rapidly emerging for print, books and printed materials. This is in part a response to the spread of Gutenberg's printing press technology, and a new emerging merchant class educated in secular universities.
Book publishers were developing throughout the cities of Europe, and along with them, a lively trade for unauthorized copies of printed works. Keep in mind that copying before the printing press was the primary means of distribution. Most books were hand-copied by a scribe. And if you owned a book, you had the right to take it and have a copy made of it.
The printing press, of course, makes rapid identical copies quite easy. It facilitates, therefore, unauthorized copies of books, and it put a strain on legitimate book publishers.
At the same time, European governments and churches were growing increasingly concerned with the way print was being used in the form of political protest. Pamphlets, anonymously written and published, being printed in bulk and distributed on the street criticizing god, king, and country.
They were increasingly interested in finding out who was publishing and where. And a copyright law, not only an economic mechanism that the book publishers were looking for, would also function as a kind of censorship. It's important to remember this connection, that even though now we think of it entirely as a sort of market mechanism, the urge to censor is sort of deep in its legal DNA.
So in 1710, in the UK, in response to the urging of publishers, they pass a law called the Statute of Anne. The Statute of Anne gave exclusive property rights in people's writings and discoveries to authors.
Now, it's interesting. Publishers were the ones primarily asking for this law, and authors were, in fact, ambivalent about whether it was necessary. The idea of giving this right to authors was based on a philosophical idea, borrowing on the lessons of John Locke. The idea was that the right that was being given to authors was built on the effort that was exerted by authors. Just like a farmer, a farmer tills the land, and therefore, has the rights to the crops that grow from it.
That said, it was understood that those rights would be transferred to publishers, just as they are, most often, now. So the power sort of remained with publishers, even though the law gave the right to the authors themselves.
And the version written into the Constitution in the US is somewhat more utilitarian than the British version, borrowing more from Jeremy Bentham than from Locke's ideas. The Constitution says, "Congress shall have power 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." It's important to notice in that phrase that copyright is a means to an end, and not an end in itself.
Now, progress may have meant a lot of things. We were a young nation, and we were looking to develop quite rapidly in the areas of democracy, in commerce, in art, and in science. And in each of those areas, it was believed that a spirit of cooperation was necessary, that each of those areas required widely available information, freely available knowledge, so that new works be built on the shoulders of old.
Democracy requires access to information and access to debates, access to knowledge about policies and important questions so the voters will be informed to make the right decision. The market needs available information so the buyers know the prices and availability of things, and sellers know where their buyers are.
Scholarship and science is built on the premise that you should know what is out there. You should know what has been learned already. You should stand on the shoulders of giants.
And art also depends on access to previous work. Artists are supposed to learn from past masters, lift techniques and ideas from the works that they've seen, and create anew.
Copyright law depends on a pair of substitutions. And I want to spend just a moment thinking about them. Copyright law turns authors into owners by turning their work into a form of property.
This substitution, this pair of substitutions, may seem fairly obvious, but it may be obvious because the idea behind copyright has been with us for so long. We turn creative work into a form of commodity.
We use the market as a means to be an incentive to authors and artists to produce what they produce, and a distribution mechanism to get it to the people who want it. And we tie the sale of that work back to those artists and authors to pay for the work they do, as an incentive to publish more and distribute their work to the public.
It's worth examining this pair of concepts, because in some ways, they are an imperfect fit, and they are the source of some of the difficulty that copyright faces.
The first question is, is something like a song similar to more tangible property? A bicycle, a chair, a pair of pants. Both are made by someone, or a pair of someones, from some raw material, and both of them can have, and some people argue should have, economic value. Of course, we don't market all things that we think have value.
At the same time, a song is in some ways quite different than these more tangible forms of property. The first is that your use of a song doesn't prevent my simultaneous use of that song. You're listening to the radio. I can also listen to the radio. Intangible property is non-rivalrous.
Also, your use of the song doesn't consume it. It doesn't use it up. It is non-exhaustive.
And third, the reproduction of a song doesn't require the re-production of that song. It doesn't require making that song again. It is copyable.
And each of these features of information, of arts, of culture complicates things, because it is not the same as what tangible property does.
We can also raise the question about incentive. If copyright law is designed to be an incentive to those who create, to those who produce, we might ask, why is it that authors and artists do what they do? Why is it that they create?
Incentive and reward can come in many forms. If we think realistically about the rewards that return to a musician who writes a hit song, we'll find a complex mix of direct financial incentives; royalties from CD sales; secondary financial incentives, like concert tickets and T-shirt sales; the individual satisfaction that comes from expressing a point of view; the societal rewards from being praised by an audience or getting a chance to collaborate with someone else; increase of reputation; the love of critics and fans; political aims, persuading people of a perspective that you have; and often, a mix of all of these things. And the exclusive focus that copyright takes on direct financial reward may, in some ways, overshadow some of these other, just as compelling, motivations.
This contradiction was probably most visible at the early days of the web. When the music and movie industries were calling upon Congress for stronger copyright laws and saying that the internet would wither and die if there weren't stronger protections to ensure that people saw the rewards from their work. Millions of people were creating millions of web pages with no eye for direct financial compensation.
Just in the same way that property might be an awkward metaphor, so might be the metaphor of authorship. We have a cultural image about authors as a sort of lone individual hunched over a desk or a typewriter, pouring ideas out of their mind, and creating works of art from that.
But we know that in most cultural production, it very rarely matches that image. Certainly, the production of film, the production of music, we're looking at teams of creators working with teams of technicians. There may, in fact, be no form of culture that takes on this sort of lone individual idea.
Yet copyright talks about solitary authors. It doesn't have an idea to explain group production and collaboration. This is problematic not only in specific cases when copyright must be assigned to one person of a group, it's also tricky as we begin to experiment with new forms of collaboration. Wikipedia, for example, or group blogs, and yet have to shoehorn ownership of that content back into this model of a solitary individual.
Now, although copyright borrows the metaphor of property, you do not get all the rights that you would have with tangible property. The Framers of the Constitution were quite worried about the fact that creating copyright creates a kind of monopoly power. If you write a book, you become the only person who can set how it's priced, who it's sold to, and under what conditions.
And legislators since then have worried quite a bit about how near copyright restriction gets to free speech issues. You've said something, and now the state is keeping me from saying the very same thing.
In response to those risks, copyright has a series of limits, exceptions, and caveats built-in, designed to strike what was often known as a balance, a balance between the rights that are handed to private owners, the authors, creators, or those they license those rights to, and the public, whose interests those rights are supposed to serve.
One limitation is that although you can own the particular form of expression, the words you wrote, the images you chose, you can't also own the idea that you are expressing underneath it. So you may write a book about World War II, and I can't copy that book word for word, but I could certainly also write a book about World War II, even expressing the same perspective that you did. This is called the idea versus expression distinction.
Another limitation, and probably the most striking one, the most striking difference between copyright and more tangible property ownership, is that your rights to your work end. They are of a limited duration.
Once that term is up, the work you created is now owned by everyone or no one. It's the reason why if I wanted to publish Hamlet, I don't have to ask permission of anyone.
Now, the particular term by which copyright lasts has changed. It's been expanded quite a bit since it was written into the Constitution. Still, the idea that it has a limitation is an important principle of copyright.
Another exception, and probably the most important for an academic like me, is called fair use. If we follow copyright to the letter of the law, not only could you not republish my book, you also couldn't quote from it, because those couple of sentences of mine in your essay would be unauthorized reproduction of my work, and would, therefore, violate copyright.
Now, quoting is incredibly important for learning, for critical commentary. It's not always flattering. If we're in a situation where, for you to quote from my book, you needed my permission. Maybe you're writing a review that says my book is terrible. If I were in a position to be able to just say no, we'd have a problem of free speech.
So developed through court decisions and eventually codified in 1976, copyright law has a limitation called fair use that says that under certain circumstances, for socially valuable reasons, and when the commercial harm to the original is not too great, you can use my work without my permission and without compensating me for it.
Now, that, in an admittedly small nutshell, is copyright law, some of its history, some of its recurring tensions. If you want to know more about the law itself, again, please go to the website. There are links that will take you to some of the resources.
In the next chapter, we'll talk about what's changed; how has the internet and personal computing changed the game for copyright, and caused quite a bit of controversy about how the law should work, and how it might change for a digital context.
We'll talk about what the claims the music and movie industry are making about specifically what needs to be done, and a particular solution, a technical solution, to what they see as the problem of copyright infringement.
Join Tarleton Gillespie in examining the effect of copyright on digital culture, and develop insights into the ongoing negotiation about what the internet will be, what shape digital culture will take, and what role technology plays in the organization of society.
This video is part 2 of 5 in the Wired Shut: Copyright and the Shape of Digital Culture series.
