In the wake of advances in technology, most notably digital technology, lawmakers and copyright holders scramble to find some way to protect copyright. Policing agencies have developed new software, like the FBI’s “Carnivore”, as a means of enforcing the law. Copyright holders have gone great lengths to develop innovative security measures, like watermarking, in order to secure their copyrights. These same copyright holders have lobbied, with success, for new legislation. This new legislation not only refines current law, but also prescribes criminal sanctions for copyright violators in order to deter copyright infringement. To what end?
Clearly, these measures are a means to protect copyright, but why protect copyright? The most obvious, albeit under-referenced, answer is that copyright should be protected, “to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. 1, §8 clause 8.
Some might argue that granting a copyright “monopoly”, is counter-intuitive: “How can anything but the FREE exchange of ideas promote the sciences and useful arts?”. Indeed, sometimes it seems that the purpose of copyright is to ensure the financial benefit of the “author”. As previously pointed out by Chris Brand, this is not the case:
That's why we have copyright - for the benefit of society at large. (In the US, the constitution is very specific about why congress is allowed to grant monopolies on speech that reduce the value of people's real property - and it doesn't say anythign about preserving the income stream of the music industry).
In US v. Paramount Pictures (68 S.Ct. 915), the court elaborates:
The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.
The threshold question when introducing any new means of regulation should be whether the goals of the Constitutions are served, and not whether the regulation will be effective. To put it another way, regulations (be them technical or legislative), should be derived to maximize the general benefits to the public, and not to maximize the financial benefit of the author. While I appreciate that these two goals can be co-extensive, that is, financial benefit to the author often means general benefit to the public; we should take care to evaluate them in the correct order.
One problem that may arise involves allowing private industry to self-regulate. While some ideas seem promising, watermarking comes to mind, others may be derived to maximize profits and not to promote the general welfare. Touching upon these concerns Lawrence Lessig, makes some interesting points.
Comments