Technology and the Corruption of Copyright (Joshua Bauchner)

[TankGirl]

I found this recent essay on copyrights both well-written and exceptionally sane so I napsterized it for your reading and commenting pleasure. - tg



Joshua S. Bauchner:
Technology and the Corruption of Copyright

COMMENTARY--In 2010, the concept of copyright will celebrate its 300th anniversary dating back to England's Statute of Anne. Over the past three centuries, copyright laws promoted intellectual freedom and discourse while ensuring a small incentive for the creative author.

Interestingly, with the onslaught of technology and promises of greater opportunity to share and communicate, copyright is now a hindrance to these ideals, serving only the moneyed interests of owners.

Historically, copyright protections were afforded to promote expressive discourse fundamental to a democratic society. Today, the very notion of intellectual property serves to commoditize expressive ideas, rather than fostering their dissemination. Whereas initially the provision of an economic benefit was secondary to the promotion of original works, modern copyright inverts this ideal in a continuing effort to establish a marketplace for ideas.

In doing so, modern-day copyright holders focus solely on financial gain to he detriment of the true purpose of copyright.

The corruption of copyright harms the public interest. As described, the increased restrictions contravene the principles of a democratic society. Second, increased protections extend monopolistic control over original works of expression. Third, the commodization of copyright is not an incentive to creativity.

Copyright holders, often not the creative authors, ensured the massive expansion of their monopoly. The monopoly now extends for seventy-years plus the life of the author from an original twenty-eight year renewable period. The adulterated derivative work right warrants copyright protection for minor editions to the original. Further, the degradation of the originality requirement expands the scope of protection allowing a bare minimum of creativity to justify a monopoly.

More recently, copyright was extended to compilations, often evidencing no degree of originality and serving merely to protect the compiler's ability to sell a compendium even if the component parts manifest no originality of their own to justify protection.

Finally, the monopoly was expanded to protect nonliteral elements of works depriving the public of the benefit of transformative uses and preventing further development. Now the "essence" of the work, in addition to the work itself, is protected by copyright.

Copyrights and limited protection

As the scope of copyright protection has increased, so has its value. Accordingly, copyright holders seek new ways to obtain financial benefit from creative works treating copyright as a commodity. However, copyright only should ensure limited protection for creative works as is necessary in a democratic society. Instead, the rights of the holder may be bought and sold at an unprecedented level. Originally, the copyright holder’s exclusive rights were transferable only as a whole. However, with the shift toward pecuniary exploitation, the value in these rights increased dramatically permitting their license and transfer singly. Thus, a holder can achieve substantial financial gain from the sale of separate, defined rights to multiple parties. Further, the monopolist may set any price for their sale as the alternative to purchase is infringement and severe penalties.

This mistreatment of copyright led to the concept of beneficial ownership in copyrighted works; possession of a mere economic interest without necessarily manifesting any creativity.

Perhaps the most egregious example of the bastardization of the founding principles of copyright is the work for hire doctrine. This scheme treats authorship solely as an economic concept preventing copyright from vesting in the creative author by placing it in the hands of a third-party. The burden then rests with creators to prove they are entitled to the benefits of their efforts. In fact, the work for hire doctrine is so corrupt the WTO sanctioned the U.S. for perpetuating its existence even after the EU has forsaken it.

Ultimately, the commodization of copyright led to consolidation of ownership. Accordingly, monopolistic control as a means of promoting creativity is devoid of purpose. Copyright conglomerates obtain the power to set any price, without fear of competition, and without concern for dissemination among the public in the promotion of democratic ideals.

Fortunately, the egalitarian effects of technology permit civil disobedience in the face of an unjust, adulterated copyright regime. The constant, evolutionary war between advanced protections and circumventions regulates the role of copyright law to irrelevancy.

Copyright protection depends upon the ability of owners to enforce their rights. The Internet prevents successful enforcement ventures by not succumbing to territorial limitations and permitting dissemination from countries with weak protections providing convenient access to users without fear of legal retribution.

Even as legal battles are fought by corporate interests clinging to their outmoded intellectual property paradigm, determined users seek to return copyright to its original function-the promotion and dissemination of original, creative works.

Civil disobedience in the face of copyright laws promotes the democratic ideal that information is a public good thereby sustaining the Internet community’s founding belief that “information wants to be free.”


Bauchner recently completed his degree at Brooklyn Law School where he was Editor in Chief of the Brooklyn Journal of International Law. He previously managed the Internet and Litigation at the Software Publishers Association where he developed the group's Internet Anti-Piracy Program. He may be reached at jbauchne@brooklaw.edu.