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What Went Wrong with Copyright

August 12th, 2006 · No Comments

mickey (1928)We have our founding fathers to thank for this problem.

In 1787, they put the idea of copyright right in Article I, Section 8 of the U.S. Constitution. It says “Congress shall have power … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Then, just a little later, in their very first amendment to the Constitution, they wrote, “Congress shall make no law … abridging the freedom of speech, or of the press…”

We are left with contradictory goals that have only been exacerbated by the dawn of the digital age. On one hand we have the tradition of copyright, which protects literary, dramatic, musical, artistic, and other intellectual works. On the other had, we have the First Amendment, which guarantees free speech.

When Congress passed the first Copyright Act in 1790, it gave authors the right to control their published works for 14 years, with the opportunity for a renewal for another 14 years. The copyright gives the author monopoly control over his or her work, determining any uses of the work and collecting the profits of its sale or licensing. After the end of the copyright period, the work enters the public domain, which gives the public free access to the work. The idea was that a period of copyright control would give authors financial incentive to create original works, and that the public domain gives others incentive to create derivative works.

nast-santa.gif Imagine what life would be like without the image of a plump Santa Claus, a whiskered Uncle Sam, or the Democratic Party donkey and Republican Party elephant icons. American political cartoonist Thomas Nast, who worked in the late nineteenth century, developed all of these images. Fortunately, Nast’s images have passed into the public domain, which allows all of us to create our own interpretations of his characters.

But by the twentieth century, as artists lived longer, and—more importantly—corporate copyright owners became more common – copyright periods were extended by Congress. For example, in 1976, Congress extended the copyright period to the life of the author plus 50 years, or 75 years for a corporate copyright owner. In 1998 (as copyrights on works such as Disney’s Mickey Mouse were set to expire), Congress again extended copyright periods for 20 additional years. Corporate owners have millions of dollars to gain by keeping their properties out of the public domain. Disney, a major lobbyist for the 1998 extension, would have lost its copyright to Mickey Mouse in 2004, but now will continue to earn millions on its movies, t-shirts, and Mickey Mouse watches through 2024. Warner/Chappell Music, which owns the copyright to the popular “Happy Birthday to You” song, will keep generating money on the song through 2030. And maybe even for longer—it is likely that around 2015 or 2020, there will be corporate pressure on Congress for another extension.

Is this what the Constitution meant by having “limited times” for authors and inventors to have the exclusive rights to their work? And what about free speech, when communicating with popular cultural symbols like Mickey Mouse and the Happy Birthday song always come with a price tag attached? Kembrew McLeod, a communication studies professor at the University of Iowa, pointed out this problem in 1998 with a prank: he trademarked the phrase “Freedom of Expression®” “as an ironic comment that demonstrates how our culture has become commodified and privately owned.” (This was the same year the U.S. Patent and Trademark Office awarded Fox News rights to “Fair and Balanced.”)

hunchback of notre dameMcLeod is right. What we have to fear is more and more of our collective culture being perpetually locked up by corporations. But Disney shouldn’t have eternal rights to Mickey Mouse, when that company has freely dipped into the public domain to reinterpret dozens of old stories and fairy tales (including Cinderella, Snow White, and The Hunchback of Notre Dame). It’s ironic that one of the biggest advocates of denying works from entering the public domain has profited immensely from it.

To ensure freedom of speech in the digital world of the twenty-first century, we need to update copyright law. Yes—maintain incentive for creators—but, enable future generations to freely communicate and create with text, audio, and moving images after a reasonable period. We should be allowed to take a crack at Mickey Mouse and sing Happy Birthday with impunity.

Tags: Intellectual Property · Media Economics · Music

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