Is Copyright Dead?

Information Outlook, March, 2001

There are many people today who predict the death of copyright in the electronic world. Some of the individuals making this prediction simply wish that all copyrighted works were available free, while some copyright owners appear to want to restrict access and use of their works much more severely than current copyright law permits.

For over 200 years copyright has played a significant role in promoting learning. It does this by granting authors the exclusive rights to their "writings" which enables them to exploit their works commercially. The term "writings" has been broadly interpreted to include not only traditional works such as books and plays but also musical compositions, maps, motion pictures, sound recordings and architectural works. As new forms of expression developed, they too have been awarded copyright protection. For example, audiovisual works were added to the statute in 1976 and computer programs were assigned to the literary works category that same year.

Videogames, multimedia works, and webpages are all protected today. Copyright has proven to be remarkably elastic to embrace new technologies while still guaranteeing to the developers of these works (called "authors" for constitutional purposes) the rights to their works, but only for limited times. Over the years, those limited times have expanded from the original fourteen years to life of the author plus 70 years today. This remarkable expansion of the term of copyright demonstrates that Congress recognizes the value copyright holders contribute to society by making their works available to the public.

Since 1790, this statutory scheme has worked well. Copyright proprietors have earned large sums of money from the exploitation of their works, and this has contributed significantly to the U.S. economy. In fact, both the United States and Canada are known around the world for their copyrighted works--movies, software, books, etc. Not only has the law provided economic reward for copyright holders, at the same time it has insured that copyrighted works are available to the public, not necessarily available free but often freely available through public libraries. Individual citizens also purchased copies of copyrighted works such as literary works, sheetmusic, maps, etc. As technology developed, the format in which copyrighted works were embodied often changed. It is far more common today for individuals to own a copy of a sound recording of a musical composition on CD than to own the sheetmusic. Copies of motion pictures were seldom owned by individuals in the past, but now ownership of copies on videotapes a nd DVD are commonplace.

With this rich history that provided both copyright holders and the users of copyrighted works what they needed and wanted, why are both users of the Internet and copyright holders proclaiming the death of copyright?

For users of copyrighted works this may be traced first to increasingly common and easy reproduction technology. From the invention of the photocopier forward, it has become extremely easy to reproduce entire copyrighted works, and unfortunately, too often users of these works paid little heed to the rights of the copyright holder. Certainly, much of the reproduction has been statutorily exempted fair use, but not all of it. Further, reproduction technologies such as scanners and VCR's permit copying of entire works rapidly and with little effort on the part of the user. Copyright proprietors have felt threatened by this and often rightly so.

The Internet has made reproduction of digital works even easier. With a computer mouse, "cut and paste" is easier then ever before. Some early Internet proponents even coined the phrase "Information wants to be free," but this did not recognize that often information is contained in copyrighted works. At the same time, librarians and individuals began to clamor for more works to be made available in digital format. To copyright owners, it seemed that the desire for digital works was directly tied to the idea that users sought access to these works in order to reproduce them without compensation to legitimate copyright holders. One might question whether owners will continue to produce copyrighted works and make them available to the public without some form of legal protection that ensures compensation.

Concomitantly, copyright proprietors began to explore new models for exploiting their works. The first of these was licensing as opposed to sales. Licensing worked well for electronic databases and for some computer software products. It permitted the owner to maintain ownership and control while providing access to the contents to users in exchange for the license fee. Licensing did not work so successfully for traditional printed works although some publishers attempted to license them. As the number and variety of electronic works increased, licensing became the norm for many works acquired by libraries such as both databases and other titles on CD-ROM. As electronic journals and electronic copies of printed journals became available, they also were acquired via license arrangements.