The office of the U.S. Register of Copyrights recently released its annual report for 2004. Along with some useful information about the office’s function, the report includes a sort of editorial about the copyright system, entitled “Copyright in the Public Eye.” The editorial displays a surprising misunderstanding of the purposes of copyright.
Consider, for example, this sentence:
The Founders knew what they were doing when they made explicit that Congress was to secure to authors an “exclusive Right.” They understood that individual rights, especially property-like rights, were the key to establishing a stable and productive society.
Note the subtle rewriting of the Constitutional language. The Constitution does not direct Congress to establish copyright, but merely allows it to do so. Let’s be clear: the implication that the Founders would approve of today’s copyright statute finds no real support in the historical record. The first Congress passed a copyright act, and it was vastly narrower than the one we have today.
The Constitution allows Congress to do other things, too, such as imposing taxes and regulating interstate commerce. But nobody would argue that the Founders wanted the broadest possible taxation and regulation. The Founders trusted Congress to use its power judiciously, in copyright as in other areas.
Continuing with the Register of Copyrights editorial:
[The Founders] also trusted copyright owners to use those rights for the public good by offering creative works to the public. It is important for copyright owners to fulfill their end of the bargain with the public – to use the exclusive rights they have been granted to provide the public with convenient access to copyrighted works.
The implication here is that copyright owners can choose whether to “fulfill their end of the bargain with the public.” (If the bargain is mandatory, why bother urging copyright owners to fulfill it?) In other words, the public’s ability to use copyrighted works exists only at the pleasure of copyright owners. This is contrary even to our current bloated copyright law, which carefully limits the exclusive rights of copyright owners, and says explicitly that certain types of use are not infringement.
How copyright is perceived will largely depend on how technological measures limit reproduction and distribution in ways that are painless and invisible to the public. New services need to earn a reputation based on the things they allow people to do with copyrighted works, rather than on what they prevent people from doing.
Even ignoring the questionable technology assumptions – that technology can limit redistribution, and can do so “in ways that are painless and invisible” – the implication here is that the law already allows copyright owners to overreach, but the Register of Copyrights hopes that they don’t do so. In other words, it’s up to the copyright owners to decide what the future of copyright should be.
And how will this situation play out? Let’s go back to the first paragraph of the editorial:
For the first time ordinary consumers come face-to-face with copyright as something that regulates them directly. In this situation, the copyright owner is more likely to see the user as an infringer than as a customer.
And they wonder why copyright is unpopular with the public.