Copyright, Fair Use and the Internet

 Beginning in the 1100's, land enclosure was a process by which unoccupied waste-land was taken away from 'common' or public use and placed into private ownership. Initially, enclosures were made by force of arms. Those who had the strength and power took what ever they wanted. As time passed, succeeding governments passed acts to legalise and regulate the process. The ever increasing enclosures reduced large numbers of ordinary people to poverty and begging, while many others left for the towns, destroying traditional ways of life. Today, there is a new type of enclosure taking place that has the interest of a multiplicity of parties who are fighting for the right to profit from the copyright of all types of information, including that which is public domain. Because the notion of property has expanded to include everything from software to music to databases and because it comprises over one-quarter of America's total exports in any given year, the race is on to legally protect it in the face of new digital transmission, storage and reproduction technologies. With specific regards to the Internet, debates about copyright have risen to the fore and with that, governments are implementing new sets of law in the form of international agreements and treaties. To listen only to the proponents of stronger copyright law and enforcement, one might be persuaded that the correct thing is being done to protect the, 'author' in society and promote both incentive and efficiency.

However, there are many, albeit smaller voices who argue that the public good is being trampled in the stampede to protect every last shred of information. These are the proponents of, 'fair use,' and they range from computer programmers to artists to lawyers, all arguing for greater public access to information goods in the name of industrial and social well being. Currently, fair use provisions exist in both American and Canadian copyright laws, allowing the defense of academics, artists and software programmers in a variety of instances. Unfortunately, under new international agreements such as the World Intellectual Property Organisation's Copyright Treaty, it appears that existing public rights are diminishing in the face of governmental agreements that protect corporate over common interests. This seems particularly ironic given the expanded capacities of humans to communicate and share information via the latest in technological connections. An examination of this trend must look to the larger issues of property rights and current economic trends. Developing this analysis necessitates not only an understanding of property law but also the key arguments that have been adopted and generalized as common sense reasons for enclosing information. Finally, the dual question of interest and control must be asked in the face of other features of advanced capitalism using both empirical observation and available literature on the subject.

The statement by anarchist thinker Proudhon that, "property is theft," has been taken up repeatedly by a variety of academics, activists and revolutionaries throughout the development of industrial capitalism. However, as long as that phrase has stuck in international consciousness (whether or not it rings true), the current system very much recognizes private property as an inalienable right. Law in the 15th century extended that right to include not only that which is material, but creative production of literary, artistic, and inventive works as well. Modern intellectual property law is essentially comprised of two main branches, the first being industrial property such as inventions, trademarks, and industrial designs. The second and the most important the area of to current law reform is copyright which is chiefly focused on literary, musical, artistic, photographic and audiovisual works. The history of this type of law goes back to 17th century England and the passage of the series of acts beginning in 1662. The Statute of Anne, passed in 1709 focussed on the both the stationer's demand to hold printing rights and the author's need to be protected from piracy. Current copyright legislation as stated in the Constitution of the United States exists to, "stimulate the creation and dissemination of intellectual works, thus advancing, 'the progress of science and the useful arts'." It is this belief in copyright law as a stimulator of creativity and innovation that has propelled much of the public discussion around intellectual property law reform.

Gillian Davies, in her book, Copyright and the Public Interest identifies the four interrelated principles that were part of original efforts in England to develop intellectual property law, and continue to inform the philosophy of private property. The first of these is the idea of natural law as it applies to the author. In this conception, the work is an extension of an author, an expression of personality and thus embodied in some higher principle that protects it. The second is the common notion that the author deserves just reward for their creative labour. The third is that without some law in place protecting the creations of individuals, there would be no stimulus to creativity. This notion argues that writers, painters, musicians and innovators would cease producing in the absence of a law guarding their works from piracy. The fourth (and final) principle is one of social requirement. This ideal argues, "it is a social requirement in the public interest that authors and other right owners should be encouraged to publish their works so as to permit the widest possible dissemination of works to the public at large." It should be recognized here that these principles allow for the passing of authorial rights on to other owners. Current copyright law, in fact, provides for the maintenance of protection throughout the author's life and up to fifty years after his or her life.

While these arguments appear noble and focussed on both social well-being and creator rights, there are many people who would challenge the assumption that strict control over all creative works is socially beneficial. Suppose that one academic wishes to quote another, must there be permissions granted? What about the collage art of Picasso which relied on found pieces and newspaper clippings? More current is the issue of sampling in music, which is frequently invoked as an example of the need for more freedom. Section 107 of the 1976 Copyright Act in the United States provides for free use of previously copyrighted information if it passes merit on four counts. First, that the use is confined to educational or nonprofit purposes; second, the nature of the copyrighted work is taken in to question. Third, the amount and substance of the portion used in relation to the work as a whole (i.e. how much of a song was sampled?) The fourth element reveals the real concerns that regulators have over fair use policies with its stipulation that the effect of the use upon potential markets for or value of the copyrighted work must be taken into account. Unfortunately, while these provisions would protect most academic work, they have only protected the concerns of artists in some cases. Prior to the 1990's, fair use was rarely used outside of academia, but over the last few years has been used in cases concerning music sampling and the decompiling of computer games.

Proponents of fair use do not necessarily advocate the overthrow of all copyright legislation, but modifications on it to allow the free flow of information to inform and inspire artistic and technological innovations. Many creators see the need to fix the express right to satire, criticism and parody into Section 107. Some, such as the band Negativland, locate the problems with the Copyright Act at their root in saying, "our dense, international web of copyright restrictions was initiated and lobbied through the congresses of the worldŠ by the parasitic middlemen of culture - the corporate publishing and management entities who saw an opportunity to enhance their own and their clients' income by exploiting the artist." Negativland had its own day in court when sued by the mega-band U2 over the use of their song, "I still haven't found what I'm looking for." Negativland's work ("The Letter U and the Numeral 2") was meant as a commentary on the music industry, and in no way could be mistaken for the original work (since they didn't even use the original music, but recorded their own overlaid with clips of other conversations and speeches). However, the courts ruled in favour of U2 and ordered the remaining copies of Negativland's single destroyed. Interestingly, U2 itself denies any involvement in the court case and places the blame for it squarely on Island Records. In this context it is clear that although fair use might sometimes allow for satire and commentary, the lack of fixed rights makes court decisions a very subjective process. Coupled with a justice system which is vastly inequitable, it leaves under-funded and under-represented artists at a loss.

It is into this volatile mix that the Internet has reared its head, along with a host of other digital transmission technologies that open the door to all types of copyright violation. As one news commentator put it, "the Internet is history's greatest photocopy machine. One keystroke can send a file to millions of people around planet earth." The advent of faster technologies such as cable modems and the increase in storage space on the average home computer are only making this issue more apparent than ever.

Pamela Samuelson in her article, "Digital Media and the Law," discusses a variety of characteristics that make digital media different from traditional media in terms of copyright concerns. The first two are the most obvious which are the ease with which a given work can be replicated then transmitted to multiple users. The third difference is something Samuelson refers to as the 'plasticity,' of digital media, which essentially refers to the fact that works on digital media are much more easily altered than those which are fixed in print or pressed into vinyl. Another major concern for copyright holders is the equivalence of works in a digital media because information when transmitted in its binary form loses no quality between copies. The international dimension becomes much more important given the compactness of works in digital form. The current ability to transmit hundreds of megabytes in a disk the size of a small wallet is causing great unease in all information industries (who are already claiming huge losses on their products in third world and developing countries). As the article notes, "any one of the six characteristics of digital media mentioned. Would be enough to cause some disruption and adjustment in the doctrines of the existing intellectual property systems. But the six of them in combination seem likely to change the face of intellectual property law as we know it."

Certainly, thousands of people the world over regularly take advantage of digital media not only as a communications tool, but also as a receiving ground to all sorts of music, software and news. The problem, as the copyright maximalists' see it is that much of the information that people receive is, 'stolen,' from legitimate right holders. The Internet itself has proved fertile ground for this debate over property and theft, with organizations such as the Electronic Freedom Foundation and others rising to the fore of defending the rights of 'netizens everywhere. Copyright has become one of the essential Net debates and can be seen as divided into two camps. The first is made up of those who promote the free redistribution of any and all material throughout global networks. The second is composed of those who want to see the development of controls so that, 'authors,' or owners of information can track their travels and be paid for usage. The pro-copyright side is certainly backed by corporate concerns. The music and software industries are at the forefront of the cry for stronger enforcement, likening the Internet dilemma to the home-taping problem that already plagues the music industry (and which, was 'solved,' by the implementation of a cassette tax). These industry heavies do not defend copyright in the name of their own corporate interests, but in the name of the authors and entertainers who are unable to make a living due to copyright piracy.

By using the leverage of author rights, proponents of tougher law have marched into Washington and Geneva to demand that international governments take this cause as serious. From those demands, two major documents have been produced. The first of these was in 1994 and titled The US White Paper on Intellectual Property and National Information Infrastructure (NII). It is clear from this document that the future for public rights and access is about to be closed off at the hands of stacks of legal precedents that don't allow for even minimum fair use regulations. The NII proposes a number of suggestions that would make even the temporary reproductions of works (in the RAM of a computer) an infringement of copyright. Other points consider digital transmission (such as email) to be seen as public broadcasting. The report is also very clear about the elimination of, 'fair use,' wherever that use might be licensed. In addition, Internet service providers would be expected to, 'police,' the files of their users, shredding what remains of online privacy.

The World Intellectual Property Organisation's Copyright Treaty (signed by 160 countries in December 1996) is not much better. The new WIPO treaty concerns itself mainly with the extension of property law to cover databases. Some experts have called it, "the least balanced and most potentially anti-competitive intellectual property rights ever created." The law was drafted by a handful of database vendors with the express purpose of creating, "private monopolies on data and documents that have traditionally been in the public domain." In effect, the new copyright treaty extends the definition of literary work to encompass computer programs and expands the notion of intellectual creation to cover compilations of data or other material. Ostensibly, if a private company takes all court records for a given province or state (public documents) and publishes them into a specific hierarchy, the public can be forced to pay for information that is already public. This becomes a particular problem when governments decide to discontinue publishing information and hand it entirely over to private firms. While the information remains, 'public,' the only means by which to access it is a credit card, rendering it unavailable to a significant percentage of the citizenry. The only fair use provisions allowed are the vaguely worded Clause 17: "Contracting parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of a work and do not unreasonably prejudice the legitimate interests of the author." If one looks closely at the key terms, "normal exploitation of a work," and "legitimate interests," it becomes readily apparent that this treaty could extinguish all fair use amendments. And, as Pamela Samuelson points out, to copyright maximalists, there is no such thing as information that is too small to be copyrighted; "all uses can be licensed."

The arguments for these expanded treaties stretch back to the originating rationale behind early British copyright law. The two principles that are referred to most often are the claims that intellectual property law is necessary to promote authorial incentive (stimulus to creativity), and because of the social requirement for information. Bruce Lehman (drafter of the NII White Paper) claims that without increased control, no information will be available over the info highway because publishers won't have the incentive to provide it. A first (and obvious) refutation to this is the sheer amount of material already being freely distributed by producers. As well, these types of arguments only illuminate the need to shred the notion that more enforcement provides better living standards and conditions for authors. Under current industry practice, original authors receive only a fraction of the profit garnered for their works. As Peter Lyman points out, "the Association of American Universities Research Project Report argues that academic producers and consumers of intellectual property are not well served by commercial publishers." This is also true in the highly orchestrated music industry where profit rather than creative output rule the type of music that is distributed. As Karl Marx may have put it, "the view that intellectual property law functions to motivate and reward the creative proletarian would be an ideological fairy tale designed to hide the systematic exploitation of creative labour in the capitalist mode of production."

The second point, that copyright helps to fulfill the social requirements for information, could not be further from the truth. Under the WIPO treaty, databases comprising of public information can now be copyrighted, which will limit the, 'public,' domain to those who can pay for it. This not only allows the further widening of the gap between information haves and have nots but promotes systemic inefficiency. This can be no clearer than in the 1984 attempt by the Disney Corporation to shut down the production of Sony Betamax systems. Their argument was that the manufacture of home-taping devices infringed on their copyright holdings. Had Disney won, it may have forced a new technology out of the public sphere or dramatically increased the cost of it to consumers (in the manner of license fees). Another crucial point here is that social requirements (under law) can not be met without some stipulation that requires authors (or other right holders) to divulge socially beneficial information. Currently, information producers have the power (and the right) to withhold any inventions, data or creative works from the public. Under these types of copyright laws, neither social requirement, nor the need for efficient use of knowledge is met. As James Boyle puts it, "if one has the slightest concern for distributional justice in one's criteria for property regimes, this regime must surely failŠ the distributional inequalities are purchased at the cost of inefficiency rather than efficiency."

While the United States and the industrial barons claim to be standing up for the public good in its protection of authors, it is clear that other social concerns around information rights are being swept off the table. So what is behind the move to dismantle the traditions of information sharing that have allowed innovation and education in society? As one author puts it, "just as capitalism depends on a scarcity of goods, the market demands an 'artificial scarcity of knowledge' for the InternetŠ without which there is no immediate profit in its distribution." This is the crux of the move towards greater control over the Internet and other digital technologies and important to recognize. Copyright maximalism is just one more piece in the breakdown of the Fordist social contract, which sees an industrial shift away from social responsibility (as much as it was ever there). Thus, the fight against the enclosure of information must be understood in broader ideological terms and integrated into the struggles of working class demands for education, health care, and better wages and working conditions. In the current industrial ethos, the withholding and distortion of information is used to benefit very few in society, and wielded against a great many. An example of this ability to turn workplace struggles into information struggles may be found in British press workers who over the last few decades have staged quite a few work stoppages and walkouts over biased press coverage. One example of this may be found in the Sun's workers refusal to print a picture of Arthur Scargill that made him look as if he was giving a Nazi salute. In this instance, as in others, British printers and writers proved their understanding of the power of information in society and also how to fight to against the control of it.

But these instances of workplace struggle are limited to those who work directly with information control issues whereas these copyright issues affect the public as a whole. In addition, changes are being made at the international, not just the workplace level. Solutions are needed now to bring equity into the intellectual property arena. No advocate is arguing against the notion that authors should be compensated fairly for their works, rather that public use is considered equal to the rights of businesses to profit. A prerequisite to any fight for more public space is the need to unite forces. Journalists, musicians, computer programmers and all others who are concerned need to be able to come together and recognize that the various problems they all face stem from the same legislation. While this happens on an informal basis, the tendency is for computer organisations to team up with other computer related groups, artists to keep together, and musicians to work through their own industry lobbying groups. In the language about intellectual property, the reintroduction of the concept of public domain into the lexicon is imperative to garnering a greater base of understanding and support from a variety of places. Industry and governments (in policies such as the NII White Paper and the WIPO treaty) refuse to recognise that there even is a public domain, let alone work to protect it.

The specific platform for the release of information is one that has to be argued out between the various stakeholder groups, but there are some areas where reformers can look to improve immediately. First, the length of time a work can be copyrighted should be greatly diminished. Any copyright that extends past the life of an author is really only meant to benefit publishers and distributors and does nothing to promote creative incentive. Fair use is the second area that needs a vast overhaul. The current law only really recognises educational uses, and sometimes the courts have stretched it to cover some artistic use. This leaves no room for the use of a copyrighted work's structure for parody, satire or criticism. As in the case of Island Records vs. Negativland, the law often punishes critical commentary. The written definition of fair use needs to be changed to encompass these other rights. In addition, Dan Joyce from Negativland argues that the defining test is whether, "a work is more than a sum of its samples." Put simply, it would not be fair to record 90% of, "I still haven't found what I'm looking for," and put it back on the market. However, if fragments of that song are used to build on other themes and ideas, then that should be accepted as artistic commentary. As Joyce goes on to say, "artists have always perceived the environment around them as both inspiration to act and as raw material to mould and remould." The law should be changed to reflect that.

With regards to the Internet, the conception that temporary storage is copyright violation and email is broadcasting has to be thrown out immediately. These are dangerous to individual freedoms, and essentially work out to be another cash grab by electronic publishers. As well, fair use provisions have to be recognized by international law. A fan who puts a Simpsons clip on her web site should not be subject to the same laws as the pirate who circulates whole albums of songs in an attempt to make a profit. Probably the single most important issue to democratic freedom is the attempt to profit from public information. In the recognition of databases as intellectual property, stipulations must be placed on private companies to provide for public use of information that has always been public. In addition, companies should have to allot a percentage of their own proprietary information to the public domain in order to be allowed to continue the licensees on the databases that they create with citizens' tax dollars.

Four hundred years after the start of the land enclosure acts in Britain, challenges began to come from peasants who were being horribly mistreated and starved by their landlords. In the 1600's, a group of farmers took over the previously common lands to start their own farms, and thus survive. The were known as the Diggers and they saw that many of the common lands, now privatized, had been left to go to waste (because it was not profitable to farm them). Despite the fact that these lands were unused, the King's army moved in, arresting and murdering many of these agrarian protestors for claiming what should have been common. Today, intellectual property activists are faced with the same challenge: how to open up the information infrastructure as a public common? Like much of the 'waste' land in Britain, there will be information that once snatched out of the hands of the public will be discarded, hidden or left unused because of low market potential. It seems that the best avenue for those who are fighting against the enclosure of information is to set up those public areas where information is shared, traded and used despite the encroachment of government regulation. Hopefully, this movement doesn't reach its end as quickly as the Diggers', and there is room in the information society for social issues such as freedom of thought, speech and action.


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"To be truly radical is to make hope possible rather than despair convincing"

Raymond Williams

Megan Adam