Intellectual property has also been called intellectual protectionism and an intellectual monopoly. When conceived, it was indeed considered a temporary monopoly that was enforced by the state. Although intellectual property includes industrial ventures, such as patents and trademarks, the copyright monopoly is perhaps more of a threat to freedoms. This is because it is not only a source of economic control, but a source of creative control. The purpose of copyright law appears to benefit the artist upon a superficial glance. It was conceived to protect creators from “idea theft” and to provide financial incentive for artists so that they can make a living from their art. On a broader level, copyright law serves a specific government interest: to promote progress, art, and culture by offering these incentives and protections. In the text of the United States Constitution, the purpose of copyright and patents laws were “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.”[1] As legislation involving copyright continues to develop, the purposes have evolved with the economic interests of media conglomerates.
Artists’ interests are not at the center of this legislation. These protections have been subverted in favor of profit. Copyright laws have extended purposes in supplying legal means of financial retribution and implementing economic superiority. What was once a legal recognition of the value of creativity has become a mechanism of controlling the entertainment industry. Since nearly all the media in the United States is managed by a handful of companies, their lobbying power to pass more advanced copyright law ensures their ability to control the type of media consumed. “[T]he purpose of patents and copyrights,” according to the Framers of the Constitution as well as legal scholars, “is not to enrich the few at the expense of the many.”[2] Copyright infringement also provides these major conglomerates a means of prosecuting individuals and other artists only with financial interests in mind. Not only do small violations add up to a large number in fines, but fear of prosecution adds to the atmosphere of control that is desired, creating an inevitable chilling effect on speech. The less options consumers have, the better for these companies because when “monopoly over ideas is absent, competition is fierce.”[3] Competition is narrowed by modern copyright law, as increased restrictions confine artists and limit consumers.
There are two components of copyright law: the ability to buy and sell copies of an idea and the power to control how others use the idea. While the purchasing power associated with DVD’s or CD’s for example is not disputed, the control after the purchase is controversial. This right is sometimes referred to as “‘intellectual monopoly,’ to emphasize that it is this monopoly over all copies of an idea that is controversial, not the right to buy and sell copies.”[4] The temporary monopoly may be granted to literary works, musical works, dramatic works, choreographed works, pictorial, graphic and sculptural works, motion pictures, and sound recordings. While this ownership period was intended to be limited, it keeps growing.
The first known use of copyright protection came with Britain’s Statue of Anne in 1710, which was granted a reasonable 14 year period of protection. In the United States, the duration of copyright protection has increased from 28 years with the option to renew for another 28-year-term, to the life of the creator plus 70 years.[5] The idea here is that relatives of the creators should be included in the benefits of copyright protection. The Sonny Bono Copyright Extension Act, which added 20 years to the prior 50 year period, was passed in 1998 under much contention. It was often referred to as the Disney Copyright Extension because it was viewed as an attempt to keep Steamboat Willy—the original cartoon in which Mickey Mouse appears—out of the public domain. In a legal challenge that ended at the Supreme Court, opponents of the Act claimed that extending the monopoly for works that were already protected violated the purpose of copyright. If the primary governmental purpose of copyright is to foster new creations, then there is no need to extend rights for existing works. The Court disagreed, as Justice Ruth Bader Ginsburg explains:
Beneath the facade of their inventive constitutional interpretation,
petitioners forcefully urge that Congress pursued very bad policy
in prescribing the CTEA’s [Copyright Term Extension Act] long terms.
The wisdom of Congress’ action, however, is not within our province
to second guess.[6]
While the Act may be a matter of poor policymaking, the majority of the Court reasoned that it was not a constitutional matter. However, Ginsburg’s analysis adds more weight to the fears of the Act’s challengers; Congress has the ability to make copyright terms virtually endless in the interest of major corporations, such as Disney. Some fear that the lovable black mouse will never enter the public domain, as Congress created “a virtual dam blocking the flow of information into the public domain.”[7]
Would Thomas Jefferson eat a bagel?
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