By Leslie K. Martin
Silicon Valley Perspective
How does the ability to digitize and transfer intellectual property from one personal computer to another affect current copyright laws? That question has authors, musicians, artists, photographers, software programmers and publishers pitted against each other and their customers. Defining an answer that satisfies them all might not be possible.
The advent of software that allows users to exchange digitized sound, film, text and graphic files makes it easier than ever to copy original works, without payment, and without asking permission.
And it forces a larger question. Is the concept of copyright archaic?
“I think it’s clear that it is,” Margaret Jane Radin, professor of law at Stanford, said. “But the question that comes after that - What should we do instead? - is not so clear.”
Ownership of intellectual property has long been a hot topic of contention. That’s why the first copyright law was established in England during Queen Anne’s reign.
Copyright law, originally written to protect books and later maps, has been constantly revised and stretched until it now protects everything from software programs to dance choreography to architecture. Each addition to the law received it’s own variations on copyright. So there are slightly different rights for sound recordings than for a movie soundtrack.
“If a literary work and a sound work have both been digitized,” Radin asked, “why should they have different rights?”
The original definition of a single “copy” meant a tangible object in which the work can be perceived - like a book. The definition now includes digital objects and it splits some pretty fine hairs. If you’re looking at a copyrighted piece on a Web page, the image exists only in your computer’s temporary memory, or RAM. The image goes away when you turn the computer off, so it’s not considered a tangible object. However, Rabin said, once you download the image to your hard drive, “something is present in the memory of your computer, in the bits - it’s a tangible object. In the age of intangible, the law really has to be stretched and it’s pretty procrustean.”
Copyright law protects “original works of authorship” for the life of the author plus 70 years. In some cases, this lengthy protection doesn’t make sense, Radin said. For instance, the goal of software authors is typically to capture the majority of the market, rather than insure the longevity of their work, which is often replaced or outdated within months of authorship.
On the other hand, for author and video director Gene Spiller, of Health Research and Studies Center, a Los Altos publishing company, “Plus 70 years is not enough - it should be longer. The author has to be protected in the strongest sense.”
The author of a copyrighted work today has exclusive rights to reproduce the work, to prepare derivative works, to distribute copies to the public, and to perform and display the work publicly. And the author can sell, lease or rent individual rights as in the case of a writer who agrees to let a publisher have first-time publishing rights, but not electronic or international publishing rights.
As the definition of copyright grew and changed, so did the number of possible violations.
“When you copy something illegally, you’re violating something called the reproduction right. If you send it to someone, you’re violating the distribution right,” Radin said. And, if you make a copy of something, you can’t use the excuse that you didn’t know it was copyrighted.
Considerations that add weight to legal arguments include questions of: fair use (Was a work copied for educational use or for a profit?); multiple copies (If a person lends a friend one copy of a book, it doesn’t impact the market, does it?); added value (Did a biographer or critic transform the work through interpretation?); and availability of the work (Is the work available or is it out-of-print?).
Little wonder that the disparity of tangible items covered, the diversity of authors included, the layers of violations and tangential factors, result in lawsuits whose complexity and findings are themselves confusing.
A recap of some of the more renowned suits between publishers and creators hints at the scope and breadth of copyright conflicts.
In 1984, the movie industry sued Sony Corp. claiming the VCR was an instrument of copyright infringement. The movie industry lost.
Kinko’s compiled copies of numerous textbook chapters into “course packets,” in the name of education. But Kinko’s charged a fee and sold tens of thousands of copies. Major publishing firms brought suit in 1991. Kinko’s lost.
The National Football League and the National Basketball Association were successful in shutting down a Canadian Web site that streamed sports broadcasts to the net.
You can’t live in the Valley and be ignorant of the Napster suit. Metallica claims 335,000 music fans illegally shared its tracks. Will the fans rule the Web? Stay tuned.
Should a law that originated in 1710 be expected to cope with digital copies? The verdict is still out.
Leslie Martin, a former Town Crier staff writer, is a longtime free-lance contributor in the high-tech industry.
