Yesterday morning I had the good fortune of sitting in on a lecture from Lewis Hyde, Thomas Professor of Creative Writing at Kenyon College, titled “Fair Use vs. The Copyright Bullies.” This topic should be particularly interesting to anyone who interacts with copyrighted material. What I didn’t understand was just how muddy the history of copyright protection seems to be–it’s the history of a few landmark instances of precedent-setting interpretations, that could easily have been interpreted in other ways. Hyde’s talk made plain the confusion governing the fear culture around using protected material: a culture steeped in vague statute, threat-mongering, and a lot of following (law)suit. With the advent of the Kindle–proprietary now, but will it always be, Mr. Bezos? How will the Kindle compete with an open source competitor?–what’s protected or not in the book world, and our future ability to access it freely, seems headed for the blender. This could be a really good thing.
But first, some of the notes I made from Hyde’s lecture:
1.) The original copyright law (Article 1, Section 8 of the Constitution) includes language protected work for a limited time. Originally, this meant 14 years. It did not limit modified use of the work–for instance, a translation was considered a new work, as was an abridgment. These were not protected by the copyright. Since this time, copyright protection has ballooned to 95 years. The statute language has been updated to try and accommodate media that did not exist when the first law was written, particularly software, film, and digitized media. The history of copyright law is the history of its expansion.
2.) It is almost technically impossible to put something into public domain under certain interpretations of copyright law. Your holiday cards are copyrighted. Your grocery list is copyrighted. What you write on the window frost on your car window is copyrighted (of course, presuming you aren’t using something that is already copyrighted).
3.) What constitutes a “copy” these days is as gray as February in Ohio. Is translation a copy? How many words verbatim constitutes a copy? What if I pirate the idea but change the words? What if I take a photocopy? Make a digital file? Record something copyrighted out loud? Take a picture?
4.) That you should think pretty hard about the distinction between “owners” and “users”–because you might be more owner than you think (though less of one than you used to be when the Constitution was written).
5.) The intent of the original language behind copyright law–to increase creativity and promote the exchange of ideas, while honoring the producer with limited-term monopoly rights–has, in turn, been reassigned purpose in the 20th century to protect the economic value of the copyrighted material.
What I think is interesting is watching how media that is increasingly stored, viewed, and purchased digitally (particularly the future we are headed toward with the book) will exert influence on the the interpretation of copyright law. With digital music, we’ve witnessed copyright law becoming virtually obsolete–for every prosecuted case, hundreds of thousands are not. It forces the industry to change the ways in which sells goods to the market. My hunch is that the book industry may be headed in the same direction.
More and more of your right to use material that was once under copyright has been “interpreted” away from the public domain, for fear of infringement. Much of that fear is perpetrated by the content industry and the permissions culture we live in. Hyde’s lecture taught me this: I support protecting the economic value of a copyrighted work–but not at the expense of the public domain, which we must protect.