by John N. Berry, III — Library Journal, 07/01/2000
New laws converted a limited exclusive right into long-term ownership
At the root of today’s copyright debates is the radical shift from the idea of a limited exclusive right of an author to his or her work to the concept of long-term ownership of that work. Librarians, educators, scholars, and all others who seek easy, inexpensive access to all kinds of information have found access increasingly restrained, as reproductive technologies from type to digital impulses spurred publishers to demand greater protection of their exclusive rights to what they call “intellectual property.”
“To promote the Progress of Science and useful Arts” was the first stated purpose of U.S. copyright. The U.S. Constitution ratified in 1788 proposed to do that “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first U.S. copyright law, passed in 1790, protected books, maps, and charts if they were created by residents or citizens of the United States. The term of their exclusive right was a mere 14 years, with the right of renewal for 14 more.
As technology made reproduction of original works easier, cheaper, and faster, the idea of limited copyright was transformed into long-term ownership. The concept of “intellectual property,” not really apparent at the beginnings of U.S. copyright, developed to rationalize the shift to ownership. While our modern society places great importance on what we call “property rights,” our revolutionary forebears were more concerned with freedom of expression and action than with property and ownership issues. Indeed, when those revolutionaries found it necessary to give examples of their “unalienable” rights, Thomas Jefferson committed what I believe is the greatest editorial act in U.S. history. He revised the exemplary rights listed in that key phrase in our Declaration of Independence from “life, liberty, and property” to “life, liberty, and the pursuit of happiness.” That crucial change has implications for copyright.
All the revisions of our copyright law, especially the most recent, have converted this previously limited right of authors “to promote the progress of science and useful arts” into a form of property ownership. Out of this grew the modern concept of intellectual property. The most recent U.S. copyright law takes us closer than ever to copyright as “ownership.” It gives authors who published after 1978 a copyright term of life plus 70 years. Authors who published earlier get a term of life plus 90 years. Compared to our original copyright law, this is a huge shift from limited exclusivity (28 years) to long-term ownership. It is difficult to see how these endless copyright terms “promote the progress of science and useful arts.” It is not so difficult, especially for librarians, to see how they retard that progress.
It is clear that we will not reverse the trend toward greater statutory protection of intellectual property. It is also clear, however, that technology is still far ahead of those copyright holders and the lawmakers. They fight to litigate Napster to a halt, only to find that it has already been replaced, as a million young computer hackers find new ways to get free access to the information and entertainment they want.If librarians cannot force a reversal of these trends, we can, at least, remind lawmakers and publishers of that exalted original purpose of copyright. That may convince them that imprisoning information in a statute of ever greater term and restriction does not serve the needs of scholarship or science and useful arts.
We librarians can also seek broader educational exemptions from the most harsh restraints and controls on the use of information. We can be far more demanding about negotiating licenses that increase our rights of access, while agreeing to try to help protect the legitimate rights of authors and publishers. Certainly we can and will aid and abet the progress of information technology to gain access to information.
Finally, we can also reassure our adversaries in this complex struggle that there really is very little evidence that copyright is what protects publisher profits. Librarians know that book borrowers and copiers are book buyers. On the other hand, there is compelling evidence that free access to information makes everything in our society work better.