The Death of Copyright

Copyright will still be waved around for a good long while, but all that’s really being waved around is the dessicated corpse of a ideal which has long since lost the luster with which it’s creators bore it. In order to understand how far we’ve fallen, let’s begin with a discussion of classic copyright.

Per the Berne Convention, which the US signed in 1889, Copyright is implicitly created the first time a work is made available in a physical form. Even though the US signed the Berne Convention in 1889, it wasn’t until 1989 that the Berne Convention Implementation Act was passed, finally brining legal status for noticeless copyright to the American people. Copyright allowed the creator of a work control over production of copies of a work, distribution of a work, creation of derivative works, public display of the work, transmission of the work, and transferance/sale of the above rights.

Importantly, Copyright had limits. Copyright protects against an expression of an idea, not the idea itself. This is what makes JK Rowling’s suit against the Harry Potter Lexicon potentially so ridiculous. The Lexicon presents information gleaned from Rowling’s novels, but their expression of those ideas is markedly different from Rowling’s own. If someone were to release a book of magic spells based on the Harry Potter world, they could do that, provided they don’t use the Harry Potter story in their work. The idea of the world is not covered by copyright, only Rowling’s expression of it. Further, fair use doctrine (formalized in the US in 1976), even allows a person to use portions of a work without licensing the Copyright. The guidelines laid out in law require that a Copyright holder prove damages, and the potential infringer can not have used a significant amount of the work. It is this portion of law that allows for parody, as well as allowing a home user to record from television or radio. If fair use dies, so does your TiVo.

Copyright typically lasts about 70 years after the death of a creator, depending on the jurisdiction under which the work was created, or 75 years if the work was created by a Corporate entity. Unfortuntaely, this is where the first attacks on Copyright occured. In 1998, Sonny Bono and Disney lobbied hard for the Copyright Term Extension Act, which was seen by many as an attempt to protect Disney’s control over Mickey Mouse, created in 1928. In the end it worked, and Mickey is safe from public domain until 2023.

Does the Disney Corporation really need to continue to own Mickey any longer? Mickey Mouse is one of the most beloved symbols of our global society in this day and age, a fact that has helped Disney net billions of dollars. The purpose of copyright, to allow a creator control over an expression for a reasonable period of time, so that they can make a resonable profit before the expression enters public domain, has been more than satisfied. If anything, Disney’s desire for expiry-free copyright is hampering creativity, not fostering it.

So as the public domain foundation of Copyright is whittled away at, what other attacks are flailing away at this once beautiful thing? Fair Use is being attacked from every angle, by the DMCA. The DMCA and the DRM bastard children that it has spawned have the media conglomerates telling me when and where and how I can view the media that I’ve rightfully purchased. I’m not talking about file-sharing, that is a clear violation of fair-use, but rather things like DVD and it’s Content Scrambling System. The irony of CSS was that, in treating customers like potential criminals, many were forced to behave as such, in order to view DVDs on Linux, or to import DVDs.

Still, DRM continues to flourish, through online music stores, Video Games, and High Definition DVD standards. If you don’t own an iPod or a Zune, the DRM-laden music schemes are useless to you, though there are alternatives. Amazon has a DRM-Free music store, and Magnatune bills themselves as “not-evil” (Incidentally, Radiohead’s recent name-your-own-price album sale has been done by Magnatune for a while). Without the DRM-layer, users are finding themselves able to use their music where they want to, and don’t have to fear losing the encryption keys that allow them to unlock the media they purchased.

Perhaps not all DRM is bad. The Nintendo Wii’s Virtual Console uses DRM to protect the downloaded games from copying, but I’d have no desire to play those games anywhere else. However, it still limits my ability to use the media as I would want, and that is dangerous. That is where the problems lie in the online music downloads, and that is where I think people are going to end up fighting DRM first. The second front I want to see taken down, is the region-locking of DVDs, an attempt by the movie producers to prevent importing. If I want to pay a premium to import a European film before the production house releases it in this country, I should have that ability.

Canada is getting ready to pass their own DMCA law, one that goes far further to gutting traditional copyright than the one here in the US. It’s too late for us, but you Canadians still have a chance. Don’t descend into Copyright hell, as we have. We as a people are going to spend the next decade trying to dig our way out, and it might be futile. You don’t need to. Fight this today. Hopefully you’re victory will steel us, and help us find ours.