Lessig, Lawrence --- "Does Copyright Have Limits: Eldred v Ashcroft and its Aftermath?" [2005] QUTLawJJl 15; (2005) 5(2) Queensland University of Technology Law and Justice Journal 219
DOES COPYRIGHT HAVE LIMITS: ELDRED V ASHCROFT AND ITS AFTERMATH?
PROFESSOR LAWRENCE LESSIG [*]
The last time I had the chance to stand in a Supreme Court
and asked, ‘does copyright have limits?’, I was standing on
that
side of the Bench and several of the Justices got the answer wrong. I am very
eager to be standing on this side of the Bench
and asking the very same
question, and even more encouraged to learn that in Australia the question may
get a serious answer.
Let me put this in context. Copyright law begins in
the Anglo-American tradition in 1662. The Licensing Act of 1662
established monopolies for publishers in England in cooperation with the Crown,
to guarantee that those who had the power
to speak would use the press in a way
that either benefited the Crown’s political interest or the
publisher’s monetary
interests. That statute expired in 1695 and what
followed from the perspective of the publishers was chaos.
From the
perspective of the public, what followed was freedom. There were no protected
monopolies for publishing; there increasingly
became competition in publishing
and that competition was scary to these publishers so they increasingly lobbied
in a frenetic way
to re-establish monopoly controls. They were the inspiration
for a scene from Wizard of Oz and by 1709 they had succeeded. In 1709,
Parliament passed a statute to re-establish monopoly power in the context of
copyrights.
That was the Statute of Anne.
This statute was originally
proposed to establish monopoly for copyright for an unlimited term. It was to be
perpetual copyright.
But in the course of its passage through the Parliament the
proceeding was amended in a way that terrified the publishers because
the
amendment stated that copyrights would extend for 14 years for new works
(renewable), and for existing works 21 years. The critical
question for us,
hundreds of years after this decision was made, is why would they limit
copyrights? What was the purpose? From my
perspective, our first intuition would
be the idea of free speech; that it was important to limit copyright to promote
speech. In
fact, free speech had absolutely nothing to do with the ideas of
limiting copyright terms.
The core motivating idea was the restriction of
monopoly. The English, of course, had learned to hate monopolies; they had
essentially
fought a war over Crown granted monopolies. As the United States
Supreme Court decided in one of its really good intellectual property
decisions,
the Statute of Anne was written against the backdrop of practices –
eventually curtailed by the Statute of Monopolies
– of the Crown in
granting monopolies to court favourites in goods or businesses which had long
before been enjoyed by the
public. For example, the printing of the Bible is a
monopoly granted by the Crown. Writs of Courts of Common Pleas were a monopoly
controlled by and rented by the Crown. Clay pipes were granted monopoly control,
gold and silver thread and most famously, of course,
playing cards. This
tradition of granting monopolies over stuff that already existed created the ire
in the British people that led
to a revolution against these monopolies. These
monopolies for existing things were the product of an endless lobbying by those
who
produced those existing things, lobbying to protect their
monopoly.
The key insight that economics has given us, about the dynamic
that this public choice problem presents, is that the monopolist will
be willing
to stand the net present value of his monopoly to protect his monopoly against
loss from the government no longer supporting
it. To protect monopolies they
will invest as much money as they expect to guarantee a continued control over
that resource. The
1656 Parliament ended it with respect to ordinary products in
the Statute of Monopolies. You could grant monopolies under this Statute
only
for new works in the sense of a patent as our current law gives. Because the
British knew the corruption of permitting monopolies
to be granted for existing
works, they regulated around it. They forbade it in the context of real goods.
The Statue of Monopolies
excepted from its control publishers and in 1709
Parliament removed that exemption. Publishers were included within the scope of
regulated Acts to ensure monopoly powers would not be too great.
There
are many publishers today who have inspired the love of the public. We do not
have a clear sense of who the publishers were
for the British at this time. We
should remember that publishers at this time were hated. John Milton describes
them this way: ‘Publishers
are all patentees and monopolisers and the
trade of book selling men who do not labour in an honest profession to learning
is indebted’.[1]
These were a class of monopolists, particularly hated at the time. The
London Monopoly was referred to as the Conger which worked to keep prices
to British culture high and to restrict access to new works. The Statute of
Monopolies in 1709 granted
them a 21 year monopoly over existing works as a way
to buy them off. The idea was that for 21 more years their existing monopolies
would continue, but in 21 years those monopolies would end and we all expected,
of course, as what did happen, in twenty-one years
they would come back to fight
again to extend their monopolies. When these initial monopolies did expire, the
publishers did return
to try to extend them.
In 1735 and 1737 they
proposed extensions of existing terms. Parliament rebuffed these extensions.
Here is one pamphlet response:
I see no Reason for granting a further
Term now which will not hold as well for granting it again and again as often as
they Old ones
Expire so that, should this Bill pass, it will, in Effect be
establishing a perpetual monopoly. A Thing deservedly odious in the
Eye of the
Law. It will be a great Cramp to Trade, a Discouragement to Learning, no Benefit
to the Authors, but a general tax on
the public and all this only to increase
the private Gain of the
Booksellers.[2]
These extensions were rejected. In fact three times they were
rejected, leaving the publishers to turn to the next forum for extending
their
monopoly power – the Courts.
In the Courts it would not be possible
for the publishers to plead for their own interests, hated as they were, instead
they pleaded
for the interests of the authors. It was the author’s rights
the publisher was trying to promote. These rights, they said,
were natural and
as natural rights they were protected by Common Law. Furthermore they should be
perpetual. The publishers’
concern for authors is an interesting type of
concern. Lyman Ray Patterson described it as: ‘the publishers had as much
concern
for authors as cattle ranchers have for
cattle’.[3]
They were using the authors to advance their interests.
They would
fight for their cattle in this context, and that particular battle eventually
resolved this conflict in British history
by a Scot, Alexander Donaldson. In
1750 he set up in Edinburgh a publishing house for public domain books, meaning
books whose copyright
under the Statute of Anne had expired. The Conger sent him
a very clear note – stop publishing your books, our copyrights are
perpetual. Donaldson responded in a particularly Scottish way. He decided to
move his business to London and sell books in London
that were sold at 30 to 50
percent less than the going price. He did not believe he had to pay any
royalties because he believed
these books were in the public domain.
The
Conger organised a series of law suits against Donaldson, designed to stop him
and others from exercising what they thought to
be their right under the Statute
of Anne, and they won a series of early victories in the Common Law Courts. The
most famous of these
victories was Millar v Taylor, which in 1769 upheld
the idea that these terms were perpetual. Andrew Millar was a merchant who in
1729 had purchased the rights
to James Thomson’s poem, The Seasons.
He sued Robert Taylor who was reproducing Thomson’s poems without
permission from Millar. Lord Mansfield upheld the continuation
of the Common Law
copyright, holding that while the Statute of Anne supplanted Common Law
copyright; it did not replace it. Copyright,
according to Lord Mansfield, was
perpetual.
This was the first round. For those who have lost first
rounds, there is always hope for a second round. There was one in this case.
On
Millar’s death, his estate sold the rights he had to Thomas Beckett.
Donaldson then decided to take Beckett on directly
by selling these works in the
market without permission of the copyright owner. Beckett sued Donaldson and the
House of Lords got
the case in 1774 and decided that the Statute of Anne was
meant to displace the Common Law, and that copyrights were, in fact, limited.
Donaldson won in the House of Lords, and the Statute of Anne was held to mean
that copyrights end. For the first time in British
history, the works of William
Shakespeare, John Milton, Francis Bacon and Samuel Johnson and many others
passed into the public domain.
Once in the public domain, the prices for these
works fall and, more importantly, competition among publishers increases,
meaning
the opportunity for new authors to find ways to publish their work
increases as well.
The view of this result was of course different
depending on where you came from. In Edinburgh there was general celebration. No
private
cause had so engrossed the attention of the public. One paper
wrote:
And none has been tried before the House of Lords, in the decision
of which so many individuals were interested, great rejoicing in
Edinburgh upon
the victory of her literary property, bonfires and
illuminations.[4]
In London the
view was a little bit different. ‘Disaster’, wrote one major
paper:
By the above decision nearly 200,000 pounds worth of works was
honestly purchased at public sale in which was yesterday thought property,
is
now reduced to nothing. The booksellers of London and Westminster, many of whom
sold estates and houses to purchase copyright,
are, in a manner, ruined and
those, who after many years’ industry thought they had acquired a
competency to provide for their
families, now find themselves without a shilling
to devise to their
successors.[5]
In 1789, the
United States passed a Constitution which, in article 1 s 8 cl 8, provided the
following:
Congress has the power to promote the Progress of Science and
useful Arts by securing to authors and inventors exclusive Right to
their
respective Writings and Discoveries.
‘To promote the progress of
science’ – that is the power – by, ‘securing for limited
Time’ –
that is the restriction – ‘an exclusive Right to
Writers’.
This clause has two parts. You get the power to do
A through the means of B to promote the progress of science by
securing for a limited time. The idea of promoting was drawn directly from the
Statute of Monopolies.
The idea of limited times comes from the Statute of
Anne.
In 1790 the Congress enacted a statute that granted copyright
owners a 14-year term renewable once at the end of the first term and
for
existing works the same term was granted. Again, the motivation for these
limitations was not free speech. The motivation for
these restrictions was to
limit monopoly. This birth of copyright often creates a misunderstanding because
we do not really recognise
the copyright to which the framers of the United
States Constitution were speaking. The copyright they were speaking of was tiny
in respect to the copyright we have today.
The difference can be seen
across a number of dimensions. Let us think of four: the term, the scope, the
reach, and the force. Originally,
the copyright term was relatively short
– 14-years – renewable once. The scope of the copyright was limited
to particular
kinds of works: maps, charts and books. To get a copyright within
that scope you had to go through a series of formalities. You had
to register
the work, you had to mark the work, you had to deposit the work and, after an
initial term, you had to renew the copyright.
The reach of the copyright
pertained only to publishing. It explicitly said ‘publishing’ not
‘copying’ which
meant that it was essentially regulating commercial
actors, and the force of copyright was always mitigated by the courts. Its
application
was only as far as courts said it should apply.
These narrow
contours around the regulation called copyright have seen significant change.
First in term: the copyright term changed,
both in its length and its structure
in the United States. In its length it went from 14 years in 1790 which could
then be multiplied
if the term was continued to a maximum of 28. In 1831 the
maximum term went to 42 years. In 1909 the maximum term went to 56 years.
Beginning in 1962 the copyright term for existing works automatically increased,
in fact 11 times, until in 1998 it was extended
to 95 years for existing works.
That is the difference in term. But the term changes in its structure too.
Before 1976 to get the
maximum term of copyright protection, you had to go
through two grants of copyright. The initial term could be renewed and required
an affirmative act. Between 80 and 90 percent of copyists, depending on the work
or the particular period of history, never took
that affirmative step. They did
not renew their copyright because, presumably, the burden of renewing was not
worth the benefit from
the additional term.
In 1976 that changed. We
adopted the international standard of one term, one grant of copyright, meaning
that to get the initial copyright
was to get the full term of protection,
meaning in the United States the copyright term effectively tripled in 30 years.
In 1973
the average term of copyright was 32.2 years, because 85 percent of
copyrights never renewed after the initial term. Today the average
term is the
maximum term, which is 95 years. That is the change in term.
Think about
the change in scope. Originally I said the scope was maps, charts and books. It
has now been extended essentially to all
creative work reduced to a tangible
form, and appropriately so, because it should cover the widest range of
creativity where there
is a need for incentives to create. But the significant
difference not remarked in our history so far is the change in the formalities
and the consequence of that change. Between 1790 and 1800, no more than 10
percent of published work ever registered initially for
copyright protection,
meaning immediately 90 percent of that work was in the public domain. After the
initial term of 14 years, over
90 percent did not renew the copyright, meaning
after 14 years, 99 percent of work published had entered the public
domain.
Between 1800 and 1976 the data is not as conclusive, not as
certain. Probably 25 percent of all work published was actually registered
for
copyright after the initial term. Less than 3 percent of that work remained
under copyright protection, meaning almost 97 percent
were in the public domain.
Copyright was a tiny regulation of a tiny part of the creative process –
that part relating to commercial
creativity. This changed in 1976 in the United
States as formalities were abolished, which meant that copyright went from
regulating
a sub-set of published work to regulating all published work
automatically, all creative work automatically, and after 28 years continued
to
regulate all creative work automatically. There is no filter to separate out
work which needs the benefit of continued protection;
protection is automatic
and for the full term.
Think about the change in reach. Copyright law is
born to regulate commercial publishers. It regulates the copying of the same
book,
meaning it did not regulate derivative works. Those were free, and it did
not regulate in the non-commercial space, which I am defining
as those published
works that did not register for the original copyright. In the first 100 years
of copyright law this changed in
just one way: transformative works, derivative
works, are included within the scope of the original monopoly. Again, this
extends
only to commercial publication. Then in 1909, accidentally, because
under copyright law this was an inappropriate way to refer to
what they were
trying to do, the word ‘publish’ was changed to ‘copy’.
The law regulated as far as existing
technology for existing copying. It did not
matter in 1909, because in 1909 the technologies for copying were machines like
printing
presses. But it created a potential that has produced the most dramatic
change in copyright law in our history because the law now
was regulating for
men with machines and as ‘men with machines’ turned into
‘women with machines’ and then
‘many more people with
machines’ the scope of the regulation changed. In 1970, as Xerox machines
become more and more
common, the scope of the law changed.
Something
quite dramatic happened as the Internet entered our space. We can see that drama
by thinking about copyright’s regulation
of the copies in the context of
an ordinary book. Review all the possible uses of a book. A bunch of these uses
are unregulated by
copyright law, for example:
• reading a book
does not produce a copy. It is therefore unregulated by copyright
law.
• Giving a book does not produce a copy. It is therefore
unregulated by copyright law.
• Selling a book does not produce a copy.
It does not get regulated by copyright law.
• Sleeping on a book does
not produce a copy. It is not regulated by copyright law.
At the core of
these unregulated uses is a set of uses that are properly regulated by copyright
law. For example publishing a book
requires the permission of the copyright
owner and in the American tradition, there is a thin slither of exceptions
called fair uses
which otherwise would have been regulated by copyright law
because they produced a copy but which the law says should not be regulated
by
copyright law because it is essential these uses remain free. You can quote my
book, meaning copy my words, in a totally idiomatic
review – I tell you
many people have done that so far. I cannot control you, nor should I be able to
control you because the
law says these uses of my words are fair uses even if I,
the copyright owner, do not authorise them. That is the story balanced as
it was
before the entrance of the Internet.
The internet, which by its design,
by its architecture, produces this single fact: every act is a copy. You cannot
do anything on
a digital network without producing a copy. To read a book
produces a copy. Every act with a digital object is an act which produces
a
copy, meaning automatically that the scope of this regulation is extended. That
which before was presumptively unregulated now
is presumptively within the scope
of the law. There may be exceptions – fair use is one – but the base
line has changed
because of this technical feature of the way in which copyright
law interacts with digital networks. Ordinary uses are presumptively
controlled.
Originally copyright laws regulated through law, but increasingly that
is no longer the case. It is technology that regulates copyrighted
works. A good
example of this is my favourite version of my Adobe e-book reader, Middle
March, a book in the public domain. When you click on the permissions behind
Middle March you may print 10 pages every 10 days and you may use the
read aloud button to listen to this book. These are the restrictions on
public
domain books. With Aristotle’s Politics, which did not have much of
a copyright life in the United States, you may not copy any text selections to
the clipboard, you may
not print any pages but you may use the read aloud button
to listen to this book. To my great embarrassment, for my book, The Future of
Ideas, you may not copy any text selections; you may not print any pages and
do not you dare use the read aloud button to listen to my
book. Now the point
is, where do these controls come from?
They certainly do not come from
the law. You cannot exercise these controls on public domain books and you
certainly cannot restrict
any person’s ability to read a book aloud, even
if it is copyrighted. The point is, these controls come through the technology
which the content is embedded in, and as this technology develops to include DRM
technologies, the scope of this control will increase,
and increasingly, this
control is backed up by the law. My favourite example is Sony’s Aibo dog.
This is a little creature
that you can buy for about US$1500, and you can teach
it to do all sorts of tricks. Some fans decided they wanted to set up a little
fan site that gave information to others about how to teach their dog to do
tricks.
They taught people how to hack their Aibo dog, not with a machete
but with code, to teach the dog to dance jazz. When they did this,
they received
a letter from Sony that said: ‘your site contains information providing
the means to circumvent Aibo wares copy
protocol, constituting a violation of
the anti-circumvention provisions of the
DMCA’.[6] To circumvent the
code’s restriction on your ability to do stuff with your dog is a crime,
even if the underlying act is not
a crime. Let me assure you I know foreign
audiences are often confused about it. It is not a crime in the United States to
dance
jazz. Outside of Georgia, even your dog can dance jazz without legal
regulation. Here the law says code ‘controls’ and
you cannot
circumvent the code even for a legitimate purpose.
Add these changes
together – term, scope, reach and force. Then add into the mix a topic
which I know you are all familiar with,
increasing media concentration –
owners of the copyrights. If you put all these forces together you reach a
conclusion which
is very hard for us to accept about who we have become because
never in the history of our tradition have fewer exercised more legal
control
over the development and spread of our culture than now. Not even when
copyrights were perpetual, because they only regulated
the single copying of a
book. Never has the scope of regulation been as powerful and never before has it
extended as widely. This
is the change that copyright has undergone –
radically transforming the nature of its regulation in just a couple of hundred
years.
In 1998 Eric Eldred decided he wanted to become a civil
disobedient. Eldred was running an online website, which was publishing public
domain materials and in 1998 he expected to publish the work of Robert Frost,
because a series of Frost poems were to enter the public
domain then. Congress
decided in 1998 to extend the term of copyrights by 20 years, including existing
copyrights, and Eric Eldred
announced he was going to fight this change by just
violating the law. A naïve law professor (namely me) called up Eric Eldred
and told him this was a really bad idea, that copyright law was an
extraordinarily punitive law to break in the United States, and
this mode of
testing it was likely to land him in prison, rather than achieving his ultimate
objective of publishing this work freely.
We said we would help him sue –
to declare the Sony Bono Copyright Extension Act unconstitutional, the
Act otherwise known in the public press as the ‘Mickey Mouse Protection
Act’.
Our claim was that this violated the progress clause. The
core idea behind the progress clause is a quid pro quo –
‘this for that’. We grant you a copyright in exchange for your
creative work. In 1923 the Government said to
Frost: ‘we’ll give you
a 56 year monopoly, if you create something new’ and Frost said:
‘fine’ and
he did create amazing poems and literature which earned
the benefit of that 56 year monopoly. But when that monopoly was extended
for
works that already exist, the quid pro quo of this for that was breached.
This was for nothing because the work existed that the copyright was being
extended for, and no matter
what Congress did it would not get Robert Frost to
produce any new work in 1923. This was a monopoly in exchange for nothing. It
is
like a contract with the State to build a bridge for a million dollars and then
at the end of your completion, you say to the
State: ‘I want two million
dollars before I deliver the bridge to you’.
This extension of
course was part of a pattern. There were 11 extensions of existing terms in the
last 40 years. Always, these extensions
occurred as famous copyrights were about
to expire, and that dynamic is totally predictable in a world where it is
permitted to extend
monopolies for existing works. Because those who have the
benefit of the monopoly for the existing work are willing to spend the
net
present value to guarantee that monopoly is extended. In a Supreme Court, seven,
eight thousand miles away, the question was
asked, ‘Are there limits on
this copyright?’ and the Supreme Court answered: ‘No’. What
Congress was doing
was OK. ‘There was no reason to believe’, the
Supreme Court wrote, ‘that these copyright terms would be
perpetual’.
They may be perpetual along the instalment plan, but all the
Supreme Court believed all the Constitution required, was that Congress should
give the perpetual terms in particular chunks. Congress was free, the limited
times clause notwithstanding,
at least, and here is the silver lining, so long
as it does not change the ‘traditional contours of
copyright’.
There were two dissents in that case: Justice Breyer
and Justice Stevens. Justice Breyer’s was the more ambitious dissent. He
asserted that the existing copyright term was already a perpetual term. He
asserted this because he could do some math, and what
he calculated with his
math was that a 95 year term, was the equivalent of 99.9998% of the value of a
perpetual term. If you have
the value of a perpetual term, and you put on the
top of it the 95 year term, it already was 99.9998% of the value of the
perpetual
term. And Justice Breyer calculated that 98% of the work whose
copyright was being extended, was no longer commercially available
anyway. This
was an extension for a very small proportion of work, ignoring the burden on the
balance of work.
Justice Breyer’s dissent inspired follow-on
litigation. This is what we call Eldred Version Two, the case of Kahle v
Ashcroft, which the Ninth Circuit is scheduled to hear arguments sometime in
2005. The insight motivating Kahle is that 98% of authors are
not benefiting
from the copyright term extension. This case focused on the 98% and its focus is
to use the First Amendment to assert
limitations on Congress’ power to
restrict access to that work. How do we have the right to use the First
Amendment? The silver
lining gives us that right, because what the Court said in
Eldred is that so long as Congress does not change the traditional contours
of
copyright further First Amendment reviews are not required. By implication, if
Congress changes the traditional contours of copyright
further First Amendment
review is required. As I have demonstrated to you, Congress has changed,
in as fundamental a way as possible, the traditional contours of copyright
by
changing the system of formalities.
For 186 years of our history,
formalities defined the scope of copyright’s regulation and that scope, of
course, was tiny compared
to its scope today, guaranteeing that its force would
be felt by a narrow, filtered class of works and the balance of works would
enter the public domain. That changed from a system that filtered out works not
needing copyright’s protection, from works
that did. This change is as
traditional a contour of copyright as any could be and the claim is that that
change in 1976 of a traditional
contour of copyright gets us First Amendment
review, and if we get First Amendment review, then the presumption of deference
that
led the Eldred Court goes out and ordinary First Amendment review means we
win. Or at least we get Congress inspired enough to re-create
a filter, to
attempt to take the full range of works burdened by the extension of copyright
and separate out those that need or could
benefit from the continued extension
from those that would not. This opens a way for those that would not normally,
to pass to the
public domain, so that the burden of copyright is narrowly
tailored to those which would actually benefit from an extended term.
I
do not predict the Court would go our way. I remember when I was explaining
Eldred to one of the most cynical members of the American
Legal Academy, he said
to me: ‘while you have convinced me that you are right, that under the
Supreme Court’s jurisprudence
you should win, according to the rules the
Supreme Court has enunciated for limiting Congress’ powers, and this is
precisely
the kind of case where Congress’ power has gone too far,
‘when is the last time that the Supreme Court ever ruled against
all the
money in the world?’ And I said to him: ‘it is an extremely cynical,
boring way to think about the way courts
function. I do not think that is the
way courts function at all’. But I had to stop and think, when is the last
time the Court
ruled against all the money in the world? Even when they struck
down segregation, it was only a bunch of poor, southern racists they
were
actually acting against. The major actions have never been, in this context,
where all the money in the world is against a bunch
of crazy academics. This
reminds us perhaps of the limits of what courts will do.
I offer these
stories not to predict anything about the court, but to remind us of this
question: ‘Does copyright have limits?’
I think properly phrased,
the answer to that question, right now in the United States, is: ‘no, it
doesn’t’. But
it is our objective I think to imagine: what if there
were limits? What would they be for? Why would we have them?
For
example, let me tell you a couple of stories about copyright’s affect in
the United States right now. In 2002, Robert Greenwald
produced the movie,
Uncovered, which is the story about America’s involvement in the
Iraq war and the decisions leading to our engagement in that war. In
2004,
Robert Greenwald wanted to produce an updated version of that movie, including a
one minute clip from an interview the President
of the United States gave on
NBC’s Meet the Press. He requested permission from Meet the
Press to include the one minute clip in the film. They denied him
permission. What they said to him initially was: ‘it’s not
very
flattering to the President’. Now, what is going on in this dynamic? In a
world where Presidents have fewer press conferences
and more instances of
meeting the press and private contacts where copyright exists, in a context of
increasing concentration and
therefore vicious competition to get access to
people like the President. There is a strong incentive for the press to be nice
to
the President, to create a protective space where he knows he can enter and
speak without these words being used in ways that might
embarrass him. It
privatises the presidency and this is a predictable consequence of copyright
extending its power and the concentration
of the media interacting with that
extension.
Here is a more dramatic example in this story. In 2004, Robert
made another film, Outfoxed about the Fox News Channel. The Fox News
Channel sells itself as a ‘Fair and balanced news channel’ and you
would think,
if you know anything about the way truth is to function,
‘fair and balanced’ would produce ‘truth’. People
would
understand the truth in such a context. There was a careful study done of what
people who watched Fox News believe about the
world. The survey found that the
more likely you were to watch Fox News Channel, the more likely you were to have
completely incorrect
assumptions about what was happening.
Whatever your
view of Fox News or Fox News commentators like Bill O’Reilly, this is a
significant issue of political import
in the United States right now. The charge
of ‘fair and balanced’ is an issue which has been litigated and
continues
to be a defining feature of how the network thinks of itself. To make
this film, it was important that Robert Greenwald have the
right to use clips
from this Network. The Network was not going to give permission for Greenwald to
use these clips, so he needed
to rely on a doctrine called ‘fair
use’. If these uses were fair he was safe; if they were not fair, then he
is personally
liable – not his corporation – for millions of dollars
in damages. And here is the trick: you can only know whether the
uses are
‘fair’ after you have sued. You face this choice – whether to
produce the work and risk millions of dollars
in personal damage, or not to
produce the work and stay safe and sound.
Fox’s response to the
movie was significant in what it thought about the copyright system. Fox called
this ‘piracy’.
Roger Ales, the President of Fox, said: ‘any
news organisation that does not support our position on copyright is crazy.
Everybody
should stand up and say these people don’t have the right to
take our product any more; it puts journalism at risk’.
The idea that you
can point out that someone is inconsistent, that the idea puts journalism at
risk, shows just how far the concept
of journalism has moved from what its
ideals should be.
The risk here, the real risk, is a system that creates
huge exposure to someone who wants to make political commentary about one of
the
most important forces in American political life. That is the free speech issue
for copyright risks. But it is not just that
issue which is important, for of
course, Fox presents the other side of the copyright question quite well. It was
hugely successful
as a film in the United States. DVD sales were No. 1 on Amazon
for months. That drove penetration into theatres that otherwise was
never
expected. It was not a big success here in Australia. One reason we might
speculate about that has to do with the decision
made by certain companies about
whether advertisements would be permitted. For when the film was advertised or
advertising was sought
for the film, certain organisations owned by this
corporation refused to run the ad. You could not advertise this film that was
critical
of Fox because the owner of the advertiser sought not to have that
message displayed. This is the monopoly issue that copyright raises
– free
speech and the monopoly issue rolled into one.
On 17 January 2005, the
Australian ran a story about Sir Cliff Richard, the most successful
singles’ artist in British history who launched a campaign to complain
about copyright. His fifty year-old recordings are about to enter the public
domain, and to cost the record companies a great deal
of money – close to
$1 billion estimated by this article appearing in the Australian. They
claim that this is unfair, fundamentally unfair, that these copyrights expire.
Why is it unfair? Because when his songs were
recorded Sir Cliff Richard was
promised 50 years of protection. He got it – 50 years of protection. His
response is, yes, but
the United States gives us 95 years of protection. But
when he recorded his material, the United States gave him 56 years of
protection.
It then dollopped on another forty-some years to 95 years of
protection in the United States. What does this unfairness boil down
to? The
unfairness is: it is unfair for you not to pay us twice, when the United States
has paid us twice for the work which we have
copyrighted.
It is not
surprising that particular famous artists would be keen to extend the copyright
term. We can predict that will always happen.
We can predict that if any of us
were as lucky as Sir Cliff Richard was to be successful in this world, we would
be arguing to extend
the term of our copyrights. What is surprising, is not Sir
Cliff Richard, but that the other side of this debate is essentially invisible,
for here too the other side of this debate has been essentially invisible.
The Free Trade Act which was passed recently (increasing the term
of existing works) is probably thought of as a piracy of the public domain. Yet
it
too did not produce politically – as opposed to some particular
activists – even a whimper. Not even to consider the
modest suggestion
that a means was adopted to separate out those works that need the benefit of an
extended term, like Sir Cliff
Richard, from those works that do not need any
benefit from an extended term because they are commercially unavailable and just
locked
up under the existing copyright regime. Not even that idea was
considered, and that is a reflection of how blind we, as cultures,
have become
to the balance which defines this debate. We need to recognise that because of
this extraordinary explosion in technology
we are at a critical time and
opportunity to realise the potential innovation of this network, so long as this
extraordinary and
potential innovation is not zapped by monopolies.
Copyright, designed to benefit authors, if allowed to become too
powerful becomes the tool of monopolies, and again we ask the question:
‘Does copyright have limits?’ It does have limits. These limits are
for us, forgotten. The powerful have used their power
to buy the power to
silence those who would question this explosion in power. And we stand silent.
We have removed the Conger, precisely
the entity we originally in our tradition
designed copyright to dissolve. We have renamed the Conger; indeed worse than
the Conger,
for the power exercised is greater than the monopolists. Never in
our history have the few exercised more power over our culture
than now. Nobody
noticed this happening; nobody acts effectively to stop it. Yet the question
which opens this lecture is an invitation
for us to remember how we as a culture
discovered those limits and how we could recreate them again.
[*] C. Wendell and
Edith M. Carlsmith Professor of Law, Stanford Law School, Stanford University.
This keynote address was delivered
at the Banco Court of the Supreme Court of
Queensland on 19 January 2005 as part of the Open Content Licensing (OCL):
Cultivating
the Creative Commons Conference, presented by the Faculty of Law,
Queensland University of
Technology.
[1] P Wittenberg,
The Protection and Marketing of Literary Property (J. Messner Inc, 1937)
31 cited in L Lessig, Free Culture (2005) E-LIS
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20 July 2006.
[2] L Lessig,
Free Culture (2005) E-LIS
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20 July 2006.
[3] L R
Patterson, ‘Free Speech, Copyright and Fair Use’ (1987) 40,
Vanderbilt Law Review 28, cited in L Lessig, Free Culture (2005)
E-LIS
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20 July 2006.
[4] Reported in
the Edinburgh Advertiser and cited in Free Culture (2005) E-LIS by
L Lessig
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20
July 2006.
[5] Reported in the
Morning Chronicle and cited in Free Culture by L Lessig (2005)
E-LIS
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20
July 2006.
[6]
Letter sent to aibopet.com and cited in Free Culture by L Lessig
(2005) E-LIS
<http://eprints.rclis.org/archive/00002988/01/freecult.pdf>
at 20 July 2006.