This is a short review of Justin Ryan’s article to the Linux Journal about Copyright Control.
There is a strong need to explain the balance, rationale and facets of copyright law and how it shouldn’t be confused with patent or trademark law into some amorphous “Intellectual Property” (which has no legal meaning). The problem I had with Justin’s review was that unlike Groklaw’s articles on the subject, there is still too much ambiguity and missed opportunities and in one case, a flawed example and I want to go through each of these things and maybe add to the discussion.
First up, comparisons on patent law:
Patents also involve creations — inventions, advancements, and technologies. Like copyright, they prevent unauthorized use, in their case of an invention, but do so for a limited time. Unlike copyright, they are not automatically attached at creation, and indeed, may not be granted at all. Patents are something of a reward for openness — an ironic twist considering their use, we admit — the patent holder can only be granted exclusive use of their creation by patent after they reveal the details of their invention to the public at large.
The standard explanation of how you compare parents to copyrights seems to be skipped in Justin’s article. Firstly parents are time limited government granted monopolies on inventions, not creations. The limits on these ideas are that these inventions be non-obvious (to someone skilled in the field), that it be non mathematical or something that happens in a brain, and that there is no prior art with which would prove prior invention.
It’s implied in the article that copyrights aren’t time limited like patents, but they are, 100 years for a company and 90 years + life for an author. There are some different terms for recordings and such but compositions like music, software, art is standard terms. These terms are much bigger (regrettably) but are not infinitive as implied. I would also add that copyrights unlike patents protect only the expressions of ideas, but not the ideas themselves from reuse.
Now for some missed opportunity:
Copyrights are categorized primarily by where one stands. If one wishes to make use of copyrighted material and is prevented from doing so, they are evil and hamper progress. For those whose work is protected from unchecked use by any at all, copyrights are more likely to be considered a blessing that protects ones livelihood and fosters progress by allowing them to continue to create.
There is a fairly good explanation of the conflict between copyright holders and copyright users. But there is never a mention of the fair use doctrine. A bit of free speech protection that harks back to the US constitution that is supposed to protect unauthorised use of works for critique, news, parody and education. The doctrine is limited in scope depending on the nature, size of the work used and it’s commercial impact on the original work. while it’s been weakened in recent years, this aspect of copyright proves that copyright holders powers are not absolute and that a real balance was attempted in past laws to address all sides.
Finally a problematic example:
(It is, after all, hard to paint the Mona Lisa if one is too poor to buy paint.) As in all things, moderation is key. Using copyright laws to prevent others from printing copies of ones book for their own profit is one thing — preventing fans from writing stories about the characters for no profit but their own enjoyment is entirely another.
This may just be bad history on the part of the author, but the Mona Lisa is a particularly bad example to use when holding up copyrights advantage to authors. In the first instance it was painted in Italy in approximately 1506 more than 140 years before the first copyright type laws were invented in Britain in 1662’s Licensing Act. So Leonardo and other painters was clearly creating works before copyright protection. Copyright was designed to limit the ease of reproduction created with the advent of the printing press, not paintings which would still have been difficult to reproduce by skilled hands for many years after.
Secondly, copyright law is used in the modern setting as a means to invest in creative works and then reap a rent on all copies that you sell. Where as Leonardo’s Mona Lisa was a commissioned work, a kind of pay first, get your finished result later. Which is ironic as an example because I feel the commissioned work model, when combined with copyleft, to be superior in the modern world of the internet and instant free copies. And while I could be called picky about the history, I’m most certain that the economic model that creative works use is fairly important when talking about the needs of copyright’s legal powers and the balance with user’s controling powers.
That’s not to say I disliked the article though. I thought it explained fairly well how contentious the issue is and how complex it gets. I appreciated the reaffirmation of how important the first sale doctrine is and how it applies to software “licensing”. I agree with the assessment of the DMCA (and by extension the EUCD) as poorly contrived, poorly policed, one sided extensions to copyright law that aims to give companies with money the ability to create their own laws and enforce them through threats and take downs. It’s repeal is badly needed.
So in conclusion, I thought there was inaccuracies and I felt like more weight could have been spared to some of the finnier mechanics of economics vs control; but in the end you could get that from things like this Standford Law short film about fair use or from more accessible legalistic websites like Groklaw.
Go read the article for yourself and tell me what are your thoughts are.