Free culture vs. big media: Lawrence Lessig leads the charge to retake the public domain

Reason, Nov, 2004 by David G. Post

This tension between the claims of the already created and the not yet created, between the past and the future, is always at the core of copyright law. It becomes acute when, as now, revolutionary new technologies of production or distribution come along. Free culture includes illuminating descriptions of the battles that accompanied revolutionary technologies (and some technologies that, in hindsight, were not so revolutionary): the camera, motion pictures, the player piano, radio, television, long-playing records. There always has been, and probably always will be, intense warfare on the copyright battleground whenever such technologies emerge--between those who want to extend their creative control over developments in the new media and those who want to use the new technologies to recreate, reinterpret, reuse, and redistribute existing works.

Through it all, Lessig suggests, copyright law has managed, by and large, to steer a middle course, giving enough protection to existing stakeholders so that they have the necessary incentives for continuing to create, while limiting that protection so that the next generation of creators can use and adapt prior material for their own ends. To use an example Lessig makes much of, when radio and recording technology came of age in the early part of the last century, a series of court decisions and changes in the Copyright Act gave broadcasters something (the right to play recorded performances on the air without seeking the permission of, or paying a royalty to, die performers) but not everything they wanted (they do need to pay royalties to the composers of the works); gave the composers something (the right to a royalty from broadcasters) but not everything they wanted (performers are permitted to make "cover versions" of previously recorded works without the composers' permission); and gave performers something (the "cover right") but not everything they wanted (performers still have to pay royalties if they exercise their right to cover a song).The law, in other words, carved out a zone of protection and a zone of unprotection, the private domain and the public.

To be sure, the balance never has been struck perfectly; law is not like that, and in any event we'd surely be unable to recognize the "perfect" balance even if we happened to stumble upon it. But Lessig argues that we managed to achieve a kind of rough, workable balance. Until now.

The current state of copyright law is many things; balanced, though, it is not. "Swollen to gargantuan proportions" is closer to it. Copyright began as a scheme for regulating a small corner of the universe of creative activity. The first Copyright Act, Lessig explains, protected only "books, maps and charts" (intentionally excluding songs, paintings, dramatic performances, speeches, newspaper articles, and so on); it protected them only against duplication in the same medium (intentionally excluding translations, dramatizations, adaptations, and the like); and it did so for no more than 14 years. Copyright has morphed into a system under which virtually all creative output is subject to rights that are virtually unlimited in scope and virtually perpetual in duration.