Copywrongs

kw: book reviews, nonfiction, law, art, intellectual property

Just over twelve years ago, with the "Copyright Term Extension Act" (CTEA) the U.S. Congress extended copyright terms a further twenty years, to "life+70" for persons and "creator's live+95" for corporate-owned copyrights. The latter term is further "limited" by the provision of 120 years from first publication, should that term expire first. Let's see: Suppose I write a book and publish it next year. In this instance "publication" would be the day I render the completed work as a PDF and release it to be converted to an e-Book or "print on demand" item. Pick the date March 21, 2012, my father's 90th birthday; and yes, I expect he'll be alive.

I come from a long lived family. Let's be conservative and assume I live "only" 90 years, until 2037. My personal copyright will then run out in 2107. If I've assigned the rights to a corporation (after going stark, staring mad), their rights will continue until 2132, because 2012+120 = 2132 and 2037+95=2132 also. Both terms run out about the same time.

Get serious, now! Does it make any sense that anything I write will be capable of generating a revenue stream into the 2100s? Seriously? And why should I care? I've trained a son who writes well and will presumably be able to generate his own revenue stream without my posthumous help—whether by writing or in some other way. Besides, he'll be 119 in 2107, most likely having shuffled off the scene in his own right a couple decades before that, and will have grandchildren older than I am now.

The 1998 CTEA adds insult to injury. The prior law had already stipulated excessive terms. In the nannyish way of much post-1950 legislation, no longer was a work's creator required to register to obtain copyright; now it is impossible to avoid the automatic copyright, and a great deal of trouble to ensure that a work enters the public domain prior to the deaths of your grandchildren.

A voice of sanity has emerged, now that Lewis Hyde's book Common as Air: Revolution, Art, and Ownership has hit the shelves. He takes serious issue with the whole notion of "Intellectual Property." Because of that word property, otherwise reasonable people submit to having their children indoctrinated that "Theft is theft" in the schools, in anti-piracy programs (piracy is another loaded word), and there is a Boy Scout merit badge for "Copyright respect".

Author Hyde presents a long argument for the view that creative works together form a commons that is for the benefit of all, a view that is echoed in the Creative Commons movement and the Open Source software movement.

Many have a vague notion of the "Tragedy of the Commons", based on an essay by that title by Garrett Hardin. What very few know is that the "commons" as depicted in that essay is a straw man, which Hardin later acknowledged as "unmanaged commons." A commons such as a forest or grazing field (like the Boston Commons) was a managed entity, in which citizens bore responsibilities to a commons and were required to work towards its upkeep. The idea of free, unfettered exploitation of a commons was totally foreign to our forebears, and was considered barbaric. "The Tragedy of the Commons" does accurately describe most modern fisheries (which are running out of fish), but not the always-restricted, well-managed commons that worked so well for many generations, and still work well where they are in use.

Constitutional provisions and laws that provide for patents and for copyright were, prior to 1978, designed to encourage creativity and provide a limited monopoly before a work was released into the public domain. It is that public domain which provides the fodder for further creativity, for no creative person produces in a vacuum.

For example, I have written a few songs. The ones people like the most are my "family love" songs, originally written for my parents' fiftieth and fifty-fifth wedding parties. They are strongly based on concepts found in some country songs I like such as "I Come From a Long Line of Love" by Paul Overstreet. I just mixed my own experiences with a narrative structure I am familiar with. There is a bit of tune-copying there, also: a portion of one chorus starts out like the chorus of "Long Line of Love." I wonder to what extent I might have to pay a royalty if I ever perform my song for a paying audience? What price four or five notes?

Then there's a favorite rag, "Alice's Restaurant," by Arlo Guthrie. The chord pattern is used in thousands of blues rags. If that chord pattern were copyright-protected, old Arlo'd have been out of luck getting that song recorded! Luckily the rag's structure is older than dirt. So is the "La Bamba" tune, which the Beatles recorded as "Twist and Shout." In fact, just about every rhythm & blues writer has produced a La Bamba clone, and "La Bamba" itself is derived from an older Latin folk tradition. And lest you think the words make all the difference, compare some of the lyrics of "Twist & Shout" with "The Twist" by Chubby Checker.

In the Commons tradition of pre-Enclosure England, there was a yearly bounds-walking exercise by interested townsfolk. They would break down any fence or enclosure that encroached on the commons, and warn other perpetrators who had committed infractions against its proper management. We are seeing a similar exercise arise today, though it is being called "piracy" by the powers-that-be in the entertainment industry. File-sharing is the primary way most people I know get their music. Not being one to listen to music, I don't even have an iPod, but if I did, it'd be full of Western Swing tunes that are easily obtained via one of many free Torrent services.

For those who don't want to download stuff, there is always the public library. The local one is well stocked with CD's of popular bands. It is rather easy to bring a laptop to the library and rip tunes from a handful of CD's in an afternoon, and you don't even need to check any out. Let me ask you, how does this differ from reading the library's copy of a book? Hyde makes an excellent point about the First Amendment: that it primarily protects, not just the right to free speech, but the right to free listening.

There is an amusing dichotomy at the corporation for which I work. The company employs strong safeguards to protect the electronic copies of technical reports, for after all they are the crown jewels upon which innovations and products are built. Those reports are based on laboratory notebook records. Until recently, the notebooks were all paper books issued by company libraries at all research sites, and microfilmed recently. Mostly, this is still happening. But electronic notebooks are increasingly used, which are electronically published. There is a lot of worry about the contents of around half a million notebooks which exist only on microfilm, because they contain the records of millions of experiments. It costs money to perform an experiment. If you don't know what was done in the past, you are likely to repeat work. So there is a push to get the old notebooks into electronic form also. All this material has to be indexed and cross-referenced so it can be found.

Here's the rub. The easier it is to find, the easier it is to steal. Every research company, mine included, has had incidents of theft of such records. So the safeguards are beefed up every few years as new ways are found to circumvent them. This kind of "arms race" has been going on since before the invention of the test tube. And do you know what? It is OK! The rapid expansion of knowledge and technology that results is a benefit to all, even if it sometimes makes a dent in this or that company's bottom line. A rising fleet is good for all the ships.

There is plenty of evidence that sharing can be more lucrative than secrecy. That is why there are so many joint ventures. Genuine creators don't have to look over their shoulders. They always have something new up their sleeves, so if one particular song, or book, or pharmaceutical, or plastic, or movie, or anything else starts to lose market share, there is a pipeline of new stuff coming along to replace it.

Stuff gets old. Newer stuff can be better. Edison was issued about a thousand patents. Guess how many Edison inventions are still in use? Exactly one, the light bulb. And in the U.S., the incandescent light bulb has just been legislated almost out of existence. 100-watt bulbs are now illegal to manufacture. In two to four years, the 75- and 60- and 40-watt bulbs will follow. Only little "chandelier flame" bulbs will be allowed. By then, LED bulbs will begin to replace the CFL's that we're using today to replace "light bulbs".

Hyde hopes, but doesn't much expect, for a new "breaking the enclosures" movement to arise and restore some sanity to the Intellectual Property arena, particularly where the big money is, in entertainment. Copyright terms are much too long. In the consumer products arena, patents are still limited to twenty years. Very few products have a marketing cycle even ten years long before something better comes along. Some songs may last generations, even the occasional film, but will people still be watching episodes of Twilight in 120 years?