Copyright As Emphysema: Bad To Begin With And Only Gets Worse

from the now-there's-a-quote dept

An anonymous reader points me to the comment section of a recent Doc Searls post discussing problems with the copyright system. The post itself is interesting (though covering ground familiar to those around here), but the comment in question has this rather unique analogy from Searls comparing copyright to emphysema:
I won't speak for Bill Patry, but I'm beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.
To support that point, he then asks an interesting question:
Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully -- or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can't, but I'm not a lawyer.
It's a good question. I left a comment pointing to the only one I could think of off the top of my head: which was the US's decision that federal gov't documents could not be covered by copyright. That, of course, is a tiny tiny minor push back on copyright, and many other countries haven't even gone that far, preferring to use "crown copyright" to allow governments to claim copyright on documents. In thinking about it a bit more there are two other possible points -- though both are again pretty minor. First is the fact that the 1976 Copyright Act codified "fair use." Before that it existed in common law, but was not directly in the law. However, considering that we basically gave up nearly the entire public domain on modern works, that Act was hardly a step towards less copyright. In fact, it was the single largest step towards copyright expansion in the US's history.

The only other (again tiny) pushback on expansionist copyright law was not from the legislature, but the recent court ruling (pushing back on a legislative expansion) that found a certain classification of works that were temporarily in the public domain couldn't be pulled back under a copyright regime. That case is going to be in appeals for years, and it applies to such a small class of works, it's barely worth mentioning at all.

But, of course, as we were recently discussing, the expansion of copyright has been quite massive during the entire history of the US. But, again, like Searls, I'm not a lawyer (or a historian), so perhaps we can get some others more knowledgeable on the subject to weigh in on Searls' question: what examples are there of legislatures actually decreasing the scope of copyright restrictions?
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Filed Under: copyright, doc searls, emphysema, expansion

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  1. identicon
    Ed C., 19 Aug 2009 @ 7:51pm


    Thanks for your wonderful insight, as it highlights some of the many fallacies about copyright.

    " keeping with the durability of much of the material copyrighted."

    First, most of the material that is still under copyright is not "durable", in that they do not stand up well to the ages. To state otherwise is to not only grossly underestimate the amount of works that are under copyright, but to overestimate the value of those works by just as wide of a margin. Hell, the vast majority of it is already forgotten after 20 years (the average span between generations).

    "Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain?"

    Some minute fringe of copyrighted works that still get some attention is not any really any justification to keep kicking the rest of copyrighted works along with them. Actually, I would content that the outside of the few fringe examples, public domain is required to keep most works "vibrant and fresh".

    Also, there is absolutely no reason why I should not see any any of the works copyrighted within my lifetime pass into the public domain. Copyright was only to be insured for a limited period of time. "Not within my life" is not what most people would define as "limited". For an individual, that would be indistigishable from being permanent.

    "Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?"

    Again, another fallacy. First, there is no reason why anyone should have the right to continuely profit from the same work by merely republishing it under a new format again and again. It's not just about making exact copies either, but the ability to make derivative works without the threat of litigation. You're ignoring that the real point of copyright is only to give artists and writers a limited period of time to for them to seek personal benefits from their work before letting the whole of society completely benefit from it. One of the beauties of art is that others will find uses of a work that the original creator could not have imagined. Do you think that the authors of the public domain books that Disney had repurposed to build almost the entire extent of his "classic" films could ever have even conceived the idea of "motion pictures"? To continually deprive generation after generation of the same right that Disney had is by far the greater crime!

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