Fixing Copyright
Laurence Garfield, Nathan Hampton, Jeromy Stark

The Importance of Copyright

by Nathan Hampton

With the advance of technology, our economy has become increasingly dependent on the storage, transfer, and manipulation of information. As a result, issues relating to copyright are taking on a greater importance. However, the same technological advances have made violations of these protections much easier to achieve, sometimes to the point of requiring only a trivial amount of effort.

These forces have created two competing viewpoints in our society. The first viewpoint is typically associated with the creators and distributors of copyrighted works, and holds that the relative simplicity of violating a copyright requires strengthening of copyright laws and increasing the severity of punishments for such violations. Opposed to this is the idea that technological advances have made the concept of copyright protection obsolete, necessitating the abolishment of the legal structures which enforce those protections. The battle between these views has become prominent in recent years, with both sides using increasingly heated rhetoric to advance their viewpoint.

While the public debate regarding so-called "intellectual property" has become increasingly polarized, there is a middle ground which can accommodate a variety of competing interests. In these essays, we explore the nature of information, the rationale for copyright, and five ways to ensure that copyright protection continues to serve both individuals and society.

Matter, Energy, Property, and Information

In the fundamental order of the universe, there is matter and there is energy. The homes in which we live, the clothing we wear, and the food we eat are made of matter - "[s]omething that occupies space and displays the properties of inertia and gravitation...." [1] Energy is not as easily perceived, but it is also inextricably linked with our day-to-day existence. Electrical energy powers lights, televisions, and other devices, and our bodies convert the food we eat into the energy used to eat, drink, play, and work.

Despite the vast amount of matter and energy in the universe, that matter and energy are finite resources. We can change the form of matter and energy and use that matter or energy to serve our needs, but we cannot create or destroy matter and energy. We can even convert matter to energy (and vice-versa), but the sum amount of matter and energy in the universe remains the same.

Because matter and energy are finite resources, they are governed by what economists call the Law of Scarcity. In layman's terms, the Law of Scarcity states that there is not enough for everyone to have as much as they want of everything, so we give up one scarce resource in exchange for another at various times. To facilitate this basic principle, most human societies have developed a system of allotting scarce resources amongst the populace, which we commonly call "property."

The concept of property is simple: if I have a hammer, you do not have that hammer. I cannot wave a magic wand and turn one hammer into two and let you have one of them. If I give you my hammer, then for as long as you have it I cannot drive nails with it. And if I own that hammer, then I have, by law, complete and total control over whether or not I permit anyone else to drive nails with it. It is entirely at my whim to decide how or even if it is used, because I have physical control over it. If I surrender ownership of that hammer to you, however, then I also give up any and all control over how and by whom that hammer may be used.

Consider, now, the concept of information: a particular pattern of matter and/or energy to which a sentient being assigns a meaning. Like energy, information is intangible, though it may be recorded in a tangible form. Unlike energy, however, information is infinite. If I have some bit of information - the sky is blue, for example - I can share that information with you without giving up anything that I have. In fact, I can share that information with everyone I meet without diluting my own ability to use that information. As a result, the laws of scarcity and property do not apply. They simply do not make sense, because information is, by it's very nature, infinite. [2]

The Rationale for Copyright

The economic system in most Western nations is based primarily upon the Law of Scarcity - that which is more scarce has a greater value than that which is less scarce. Because information is non-scarce, the 'normal' laws of economics state that it has no value, a statement which is patently false. Obviously, however, information does have value. The value of information may be pragmatic or aesthetic, but in all cases, the value produced by that information is maximized when it is available to as many people as possible. In an ideal world, therefore, information would be created and shared without cost.

Unfortunately, there are two problems which prevent this ideal from being a reality. The inherent value information has for society as a whole is significant, but the inherent value of information to a specific individual is quite small. Because people are, by nature, self-interested, this means that there is only minimal incentive to create information. Secondly, the production of information consumes scarce resources. While some might produce information solely for their personal satisfaction or out of a genuine sense of social benefit, their ability to do so is limited both by laws of economics, which require them to earn an income, and by laws of biology, which require them to eat.

What is Copyright?

To address these issues, Western nations developed two systems to encourage the creation of information: patents and copyrights. Patents, which we will not address here, encourage the development of materials which have a pragmatic benefit to society; the inventor is temporarily given virtually unlimited authority to control who may and may not make use of her invention, in order that he may exact economic rewards from people for its use as an incentive for her to create the invention in the first place. In return, the invention enters the public domain when that authority expires.

Copyrights are intended to provide an incentive for works which have an aesthetic value - works which improve public discourse or enrich the culture. As with patents, the creator of a work is, as an incentive, granted certain exclusive rights for a limited period of time during which he may exact economic rewards deriving from the creation of that work. Unlike patents, however, copyrights grant only limited authority and provide numerous exceptions (see below for more details).

The Current Status of Copyright

The writers of the U.S. Constitution were aware of both the social benefits of information and the need to provide specific incentives to encourage its production. As a result, Article I, Section 8 reads (in part) "The Congress shall have power ... To promote the progress of science [3] and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries...." Congress has, over the years, exercised this power a number of times. Provisions of current laws governing copyrights grant the creator of a work the exclusive right

"To reproduce the work in copies or phonorecords; To prepare derivative works based upon the work; To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and In the case of sound recordings, to perform the work publicly by means of a digital audio transmission." [4]

Copyright protection commences "from the time the work is created in fixed form," and lasts for the life of the author plus seventy years or, for anonymous works and works made for hire, the shorter of 95 years from publication or 120 years from creation. Registration and copyright notices are not required for protection, but provide additional legal protection against violations of copyright. [4]

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