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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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They would fight for their cattle in this context, and that particular battle eventually resolved this conflict in British history by a Scot, Alexander Donaldson. In 1750 he set up in Edinburgh a publishing house for public domain books, meaning books whose copyright under the Statute of Anne had expired. The Conger sent him a very clear note – stop publishing your books, our copyrights are perpetual. Donaldson responded in a particularly Scottish way. He decided to move his business to London and sell books in London that were sold at 30 to 50 percent less than the going price. He did not believe he had to pay any royalties because he believed these books were in the public domain.

The Conger organised a series of law suits against Donaldson, designed to stop him and others from exercising what they thought to be their right under the Statute of Anne, and they won a series of early victories in the Common Law Courts. The most famous of these victories was Miller v Taylor, 13 which in 1769 upheld the idea that these terms were perpetual.

Miller was a merchant who had purchased the rights to James Thomson’s The Seasons. He sued Taylor who was reproducing Thomson’s poems without permission from Miller. Lord Mansfield upheld the continuation of the Common Law copyright, holding that while the Statute of Anne supplanted Common Law copyright, it did not replace it. Copyright, according to Lord Mansfield, was perpetual.

This was the first round. For those who have lost first rounds, there is always hope for a second round. There was one in this case. On Miller’s death, his estate sold the rights he had to a guy named Thomas Beckett.

Donaldson then decided to take Beckett on directly by selling these works in the market without permission of the copyright owner. Beckett sued Donaldson. The House of Lords got the case in 1774 and decided that the Statute of Anne was meant to displace the Common Law, and that copyrights were, in fact, limited. Donaldson won in the House of Lords, and the Statute of Anne was held to mean that copyrights end. For the first time in British history, the works of William Shakespeare, John Milton, Francis Bacon and Samuel Johnson and many others passed into the public domain. Once in the public domain, the prices for works fall and, more importantly, competition among publishers increases, meaning the opportunity for new authors to find ways to publish their work increases as well.

(1769) 4 Burr. 2303 (KB).

The view of this result was of course different depending on where you came from. In Edinburgh there was general celebration. No private cause

had so engrossed the attention of the public. One paper wrote:

And none has been tried before the House of Lords, in the decision of which so many individuals were interested, great rejoicing in Edinburgh upon the victory of her literary property, bonfires and illuminations. 14 In London the view was a little bit different. “Disaster,” wrote one major

paper:

By the above decision nearly 200,000 pounds worth of works was honestly purchased at public sale in which was yesterday thought property, is now reduced to nothing. The booksellers of London and Westminster, many of whom sold estates and houses to purchase copyright, are, in a manner, ruined and those, who after many years’ industry thought they had acquired a competency to provide for their families, now find themselves without a shilling to devise to their successors. 15 In 1789, the United States copied Britain, and passed a Constitution.

Article 1 Section 8 Clause 8 says that Congress shall have the power:

To 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.

‘To promote the progress of science’ – that is the power – by ‘securing for limited Time’ – that is the restriction – ‘the exclusive Right’.

This clause has two parts. You get the power to do A through the means of B to promote the progress of science by securing the right for a limited time. The idea of promoting was drawn directly from the Statute of Monopolies. The idea of limited times comes from the Statute of Anne.

In 1790 the Congress enacted a statute that granted copyright owners a 14year term renewable once at the end of the first term and for existing works the same term was granted. Again, the motivation for these limitations was not free speech. The motivation for these restrictions was to limit monopoly. This birth of copyright often creates a misunderstanding Reported in the Edinburgh Advertiser and cited in Lawrence Lessig, Free Culture.

Reported in the Morning Chronicle and cited in Lawrence Lessig, Free Culture.

because we do not really recognise the copyright to which the framers of the US Constitution were speaking. The copyright they were speaking of was tiny in respect to the copyright we have today.

The difference can be seen across a number of dimensions. Let us think of four: the term, the scope, the reach, and the force. Originally, the copyright term was relatively short – 14 years – renewable once. The scope of the copyright was limited to particular kinds of works: maps, charts and books.

To get a copyright within that scope you had to go through a series of formalities. You had to register the work, you had to mark the work, you had to deposit the work and, after an initial term, you had to renew the copyright. The reach of the copyright pertained only to publishing. It explicitly said ‘publishing’ not ‘copying’ which meant that it was essentially regulating commercial actors, and the force of copyright was always mitigated by the courts. Its application was only as far as courts said it should apply.





These narrow contours around the regulation called copyright have seen significant change. First in term: the copyright term changed, both in its length and its structure in the United States. In its length it went from 14 years in 1790 which could then be multiplied if the term was continued to a maximum of 28. In 1831 the maximum term went to 42 years. In 1909 the maximum term went to 56 years. Beginning in 1962 the copyright term for existing works automatically increased, in fact eleven times, until in 1998 it was extended to 95 years for existing works. That is the difference in term.

But the term changes in its structure too. Before 1976 to get the maximum term of copyright protection, you had to go through two grants of copyright. The initial term could be renewed and required an affirmative act. Between 80 and 90 percent of copyists, depending on the work or the particular period of history, never took that affirmative step. They did not renew their copyright because, presumably, the burden of renewing was not worth the benefit from the additional term.

In 1976 that changed. We adopted the international standard of one term, one grant of copyright, meaning that to get the initial copyright was to get the full term of protection, meaning in the United States the copyright term effectively tripled in 30 years. In 1973 the average term of copyright was

32.2 years, because 85 percent of copyrights never renewed after the initial term. Today the average term is the maximum term, which is 95 years.

That is the change in term.

Think about the change in scope. Originally I said the scope was maps, charts and books. It has now been extended essentially to all creative work reduced to a tangible form, and appropriately so, because it should cover the widest range of creativity where there is a need for incentives to create.

But the significant difference not remarked in our history so far is the change in the formalities and the consequence of that change. Between 1790 and 1800, no more than 10 percent of published work ever registered initially for copyright protection, meaning immediately 90 percent of that work was in the public domain. After the initial term of 14 years, over 90 percent did not renew the copyright, meaning after 14 years, 99 percent of work published had entered the public domain.

Between 1800 and 1976 the data is not as conclusive, not as certain.

Probably 25 percent of all work published was actually registered for copyright after the initial term. Less than 3 percent of that work remained under copyright protection, meaning almost 97 percent was in the public domain. Copyright was a tiny regulation of a tiny part of the creative process – that part relating to commercial creativity. This changed in 1976 in the United States as formalities were abolished, which meant that copyright went from regulating a sub-set of published work to regulating all published work automatically, all creative work automatically, and after 28 years continued to regulate all creative work automatically. There is no filter to separate out work which needs the benefit of continued protection;

protection is automatic and for the full term.

Think about the change in reach. Copyright law was born to regulate commercial publishers. It regulated the copying of the same book, meaning it did not regulate derivative works; those were free. And it did not regulate in the non-commercial space, which I am defining as those published works that did not register for the original copyright. In the first 100 years of copyright law this changed in just one way: transformative works, derivative works, are included within the scope of the original monopoly.

Again, this extended only to commercial publication. Then in 1909, accidentally, because under copyright law this was an inappropriate way to refer to what they were trying to do, the word ‘publish’ was changed to ‘copy’. The law regulated as far as existing technology for existing copying. It did not matter in 1909, because in 1909 the technologies for copying were machines like printing presses. But it created a potential that has produced the most dramatic change in copyright law in our history because the law now was regulating for men with machines and as ‘men with machines’ turned into ‘women with machines’ and then ‘many more people with machines’ the scope of the regulation changed. In 1970, as Xerox machines become more and more common, the scope of the law changed.

Something quite dramatic happened as the Internet entered our space. We can see that drama by thinking about copyright’s regulation of the copies in the context of an ordinary book. Review all the possible uses of a book. A

bunch of these uses are unregulated by copyright law, for example:

• reading a book does not produce a copy. It is therefore unregulated by copyright law.

• Giving a book does not produce a copy. It is therefore unregulated by copyright law.

• Selling a book does not produce a copy. It does not get regulated by copyright law.

• Sleeping on a book does not produce a copy. It is not regulated by copyright law.

At the core of these unregulated uses is a set of uses that are properly regulated by copyright law. For example publishing a book requires the permission of the copyright owner. In the American tradition, there is also a thin slither of exceptions called fair uses which otherwise would have been regulated by copyright law because they produced a copy but which the law says should not be regulated by copyright law because it is essential these uses remain free. You can quote my book, meaning copy my words, in a totally idiomatic review – I tell you many people have done that so far.

I cannot control you, nor should I be able to control you because the law says these uses of my words are fair uses even if I, the copyright owner, do not authorise them.

That is the story balanced as it was before the entrance of the internet. The

internet, which by its design, by its architecture, produces this single fact:

every act is a copy. You cannot do anything on a digital network without producing a copy. To read a book produces a copy. Every act with a digital object is an act which produces a copy, meaning automatically that the scope of this regulation is extended. That which before was presumptively unregulated now is presumptively within the scope of the law. There may be exceptions – fair use is one – but the base line has changed because of this technical feature of the way in which copyright law interacts with digital networks. Ordinary uses are presumptively controlled.

Originally copyright laws regulated through law, but increasingly that is no longer the case. It is technology that regulates copyrighted works. A good example of this is my favourite version of my Adobe e-book reader, Middlemarch, 16 a book in the public domain. When you click on the permissions behind Middlemarch you may print 10 pages every 10 days and you may use the read aloud button to listen to this book. These are the restrictions on public domain books. With Aristotle’s Politics, 17 which did not have much of a copyright life in the United States, you may not copy any text selections to the clipboard, you may not print any pages but you may use the read aloud button to listen to this book. To my great embarrassment, for my book, The Future of Ideas, you may not copy any text selections; you may not print any pages; and don’t you dare use the read aloud button to listen to my book. Now the point is, where do these controls come from?

They certainly do not come from the law. You cannot exercise these controls on public domain books and you certainly can not restrict any person’s ability to read a book aloud, even if it is copyrighted. The point is, these controls come through the technology which the content is embedded in, and as this technology develops to include Digital Rights Management (DRM) technologies, the scope of this control will increase, and increasingly, this control is backed up by the law. My favourite example is Sony’s Aibo dog. This is a little creature that you can buy for about US$1500, and you can teach it to do all sorts of tricks. Some fans decided they wanted to set up a little fan site that gave information to others about how to teach their dog to do tricks.



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