Where do emerging media fit into this regulatory framework? That is the most challenging question facing federal copyright officials today. New media often possess attributes of more than one category of protected work. Congress passed the Digital Millennium Copyright Act of 1998 to enhance copyright protection for emerging media. To date, new media such as computer software, databases, digital graphics, Web pages, and the like have usually been grouped in the literary works category.

The Act specifically excludes from protection any "idea, procedure, process, system, method of operation, concept, principle or discovery." While Congress intentionally left much copyright legislation fluid in order to account for questions of work and authorship, courts have generally held that the fixed nature of a work is crucial when considering whether to extend copyright protection. According to the Act, fixation arises when the work is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Therefore, processes or proprietary business methods do not usually qualify for copyright protection, although in some cases they may be properly submitted for patent registration.

Copyright protection under the Act extends for the author’s life plus 70 years. Works published before January 1, 1926 are exempt from the provisions and restrictions of the Act. They are said to be in the public domain with respect to use, reproduction, distribution, or performance.

The notion of copyrighting interweaves several discourses that lie at the basis of Western thought and capitalism–discourses of individuality, originality, and private property. In the West, the individual is the totem around which political, social, and intellectual thought organizes itself. In Western cultural production, individual creations (originals) are privileged, in contrast to, say, the Chinese tradition, which privileges the ability of culture makers to be absorbed into a larger, anonymous artistic tradition.

Copyright doctrine provides a legal framework for fixing the individual makers of cultural products and for authenticating the products of their hand–that is, for bestowing legal originality. More importantly, this framework extends to the maker the sole right to exploit these products economically–that is, to transform them from culture to private property. What the copyright holder receives, really, is a limited monopoly to control the value and circulation of the work under copyright, a monopoly granted at the expense, some would say, of a more socially optimal circulation. (I will elaborate on this point below.) In fact, since January 1, 1978, everything an author makes from the moment of its creation is protected under U.S. copyright law–which is to say that cultural products, whatever their value qua culture, are also conceived at their very base as private property.

The United States Constitution sets forth the legal bedrock for copyright law. Article I, section 8, clause 8 provides that "The Congress shall have the 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."

Cultural variety and development are assumed to be necessary to the flourishing of a democratic society. Copyright law guarantees authors certain rights to their work as an incentive to increase their production of cultural expression. Ideally, copyright law encourages a free flow of ideas and information among authors engaged in creating original forms of expression and authorial ideas contained in previously copyrighted works: knowledge proceeds from knowledge. As U.S. Supreme Court Justice Sandra Day O’Connor wrote in a copyright decision: "The primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and useful arts."

Justice O’Connor’s words not withstanding, the labor of authors is of course crucial to copyright law. The rights the Constitution secures for authors, as I have said before, are the rights to regulate the supply (or scarcity) of the work, to exploit it economically and make a profit from it, to recoup the costs incurred in its creation. This is the property rights justification for copyright law, and to Americans especially, this justification makes visceral sense, almost as if it arises from a law of nature instead of an economic and social construct called capitalism. What could be more natural, we ask, than to benefit from the sweat of one’s brow? I made this work; therefore, it is mine to do with as I please. As Edward Samuels put it: "Creativity wants to be paid."

Along side the property rights justification occurs the moral justification: who can possibly have a greater moral claim to a work than the one who created it? Copyright doctrine formalizes this moral claim by codifying the notion of an author, by recognizing the author’s legal ownership of the work, and by bestowing upon the author rights to the work that do not depend upon constructive notice for their force and effectiveness.

Copyright law is also necessary to guard against the disincentives to the creation of cultural assets that would occur if the expropriation of intellectual property were too easy. The argument goes like this: Copyright law exists because works would be routinely pirated in its absence. A flood of copies would disrupt (or render nearly meaningless) the distribution of original goods. Copyright law provides for payments to authors in return for distributing originals. If these payments were not secured by force of law, they would not be made. Authors would find other means of remuneration, thus depriving society of valuable cultural expression.

Copyright law, like much American legal doctrine, takes the form of a balancing act: in this case, between the individual and society, between authorial free will and socially optimal resource allocation, between providing incentives to the creation of cultural assets and the cost of limiting access to them. To ease the tension in this balancing, the Act provides a "fair use" exception that allows copying without consent. Congress intentionally formulated fair use as an ambiguous, four-pronged test rather than as a set of strictures. The factors to consider when invoking fair use are: (i) purpose of the use, including non-profit educational use; (ii) nature of the copyrighted work; (iii) amount of copying; and (iv) effect of copying on the potential value of the work. Copyright opponents, or those who seek to limit the scope of copyright law, often argue that the fair use exception does not go far enough. They maintain that the free speech guarantees of the First Amendment, the importance of the free flow of ideas to the functioning of the democratic imperative, and the need to maximize (or socially optimize) the access to cultural assets means that copyright restrictions should be loosened, even at the expense of private property rights.

Fair enough. However, in an attempt to cover all their rhetorical bases, these same opponents often then propose just the opposite of the above. Protectionist and abolitionist arguments about copyright all address some aspect of social utility or authorial notions that cannot be measured. For instance, it is impossible to quantify the incentives or disincentives that copyright law provides to authors. Can it really be argued that copyright law keeps writers writing and not driving taxis?

That being the case, the opponents say, copyright law should not concern itself social benefits or incentives. Rather, copyright law should be narrowly conceived to address the questions of who owns what, when can ownership be transferred or traded, and how long does ownership last. And since many products cease to be distributed long before their copyrights expire, a reduction in the length of copyright terms should be considered.

References