Who Knew Discussing A Long Repealed Copyright Law Could Be So Interesting…

from the copyright-geeking dept

I wasn’t at all sure what to expect yesterday when I went to a conference in honor of the 100th anniversary of the US’s Copyright Act of 1909. After all, that law was superseded by the Copyright Act of 1976, and so it hasn’t even been in effect for 33 years. However, the program was organized, in part, by Eric Goldman and Pamela Samuelson, and had some really big names on the speaker list, so I figured I’d at least check it out. Looking over the schedule, I figured I’d sit in on a few sessions and probably head out. However, the program actually turned out to be so interesting, that I stuck around for almost the entire thing (had to duck out for a bit at one point). Bill Patry joked that only a bunch of lawyers could get excited to discuss a law that was “repealed” 33 years ago, but what was so interesting was how much of the discussion was really about what’s going on today.

The summary? Copyright law is so screwed up that even if you put a significant number of the top copyright scholars and students in an auditorium for a day, they’ll disagree on almost everything, and only agree that the system is a total mess. Even simple questions like “how should copyright be handled on blogs” created a collective shoulder shrug, with everyone effectively admitting that copyright law has no answer for such basic questions. That should worry people. If the intention of copyright is to “promote the progress of science” then it shouldn’t be so incredibly ambiguous and contentious. All in all, it seems to reinforce the point that copyright law has been stretched and twisted in so many different ways over the years, that it may be fundamentally broken. Basically, copyright law is adjusted every so often not based on any look at whether or not it actually promotes the progress, but based on whatever new technological innovation comes along that throws some legacy providers’ business models into doubt. That industry freaks out, and politicians respond with some patch that protects that industry, but has little to nothing to do with actually promoting progress.

This goes all the way back throughout history. One speaker pointed out that the big innovation of the 1909 copyright was compulsory licensing on mechanical rights. This was put into place for one reason: fear about player pianos and how they would dominate the market and destroy the need for musicians. Within a matter of decades, the player piano market was effectively gone… and yet, these massive changes designed solely to deal with the player piano have stuck around ever since. Now apply that same story to basically every other technological innovation, and that gets you copyright law.

If there was a key theme running throughout the conference, though, it was on the single biggest change that the ’76 Act brought into play: switching the copyright system from opt-in to everyone-automatically-in (not even to “opt-out” realistically speaking). In the terminology of copyright lawyers, in the ’09 Act you had “formalities” to get copyright. In the ’76 Act, you don’t. While it was heartening to hear an awful lot of support for the idea of moving back to an opt-in system (i.e., if you want copyright protection, you need to proactively register/add a notice to get it, rather than automatically getting it on everything at the moment of expression), there was plenty of disagreement. Registrar of copyrights Marybeth Peters (who has a long history of supporting worrisome expansion of copyright law) kicked off the day by talking about why it was a good thing to switch to automatically in, because the old system resulted in too many questions about whether or not something was in the public domain.

Later on, Jon Baumgarten, who also participated in crafting the ’76 Act, berated supporters of an opt-in system, saying that having practiced under it, it was only good for the lawyers, because everyone spent all of their time trying to determine ways to prove that someone had screwed up registering their copyrights, and thus the end result was lots of works accidentally fell into the public domain. On this last point, Peters concluded her remarks with the rather stunning statement “I’m so glad that copyright law no longer allows so much stuff to get into the public domain.” (I’m paraphrasing the exact statement, but it was close… hopefully video will be up shortly and I can get the exact quote).

Think about that for a second. Yes, the context is important: her problem was mostly with items getting into the public domain because of confusion in the registration process, but it suggests a mindset that says “the public domain is bad.” Later speakers pointed out that the difficulty of putting a copyright on creative works was actually a feature of the system, intended by the Founding Fathers to be difficult on purpose, because they believed how important it was to have a large and fruitful public domain.

Also, what was stunning was how much the “old guard” such as Peters and Baumgarten insist that an opt-in system can’t work because it was such a mess under the ’09 Act. They seem to be confusing the ’09 implementation with the entire idea of opt-in. Sure, things were a mess before ’76, but perhaps the problem was with the specifics of the “formalities” rather than with the concept itself. And, they don’t even seem to acknowledge that modern technology could (and, in fact, should) change the entire thinking around copyright and how any sort of registration/opt-in process might work. And, in fact, David Nimmer’s final keynote suggested that new technological solutions (he discussed a hypothetical system amusingly named “the panopticon”) has shifted his thinking from being totally 100% against formalities to now believing that an opt-in system absolutely makes sense.

This post is long enough, even though there were plenty of other interesting discussions, but I did want to bring up three separate points that were interesting:

  • Bill Patry (whose blog is seriously missed) tried to hammer home the point that it’s absolutely ridiculous that Congress doesn’t ever look at copyright law in terms of whether or not it promotes the progress, and totally trashed anyone (including Supreme Court Justices) who seem to think that the “to promote the progress…” part of the Constitution is meaningless preamble, even noting that in 1909 the legislative history made it quite clear that anything that did not promote the progress was outside the scope of Congress’s power. It’s sad that both Congress and the Supreme Court now seem to ignore this point.
  • International trade agreements are evil when it comes to copyright. Sorry, but it needs to be said. There was a lot more talk about whether or not certain changes in copyright law would keep us in line with either the Berne Convention or TRIPs (and soon, ACTA!) than about whether or not it made sense. Basically, these trade negotiations, often pushed by industry reps without considering consequences for the public, have locked us into a narrow range of bad options. We simply can’t do what’s best for society and creativity, because we agreed to be bound by some really bad trade agreements. No wonder the industry loves them. They get to put a stranglehold on pertinent discussion (does this promote the progress?) and force people into discussing something entirely separate (does this violate our trade agreements?). It gets everyone focused on the trees and missing the forest.
  • There’s a lot of bubbling concern about conflicts between copyright law and the First Amendment. I’d mentioned how often this issue seemed to be coming up lately, and this event was no exception. While the old guard again insists this matter is settled and there’s absolutely no conflict between the two, a large number of scholars disagree, and point out that it’s a big open question, and some earlier rulings conflict and leave open some big loopholes to be challenged in court. Expect this issue to get a lot more play in the coming years.

All in all, a very interesting event that generated lots of thoughts and discussions.

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Comments on “Who Knew Discussing A Long Repealed Copyright Law Could Be So Interesting…”

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Chris Brand says:

There is a master plan

“the old system resulted in too many questions about whether or not something was in the public domain”

Don’t worry, they have a plan to resolve that – when was the last time something made it into the public domain ? Take endless term extensions and make them retroactive, and pretty soon nothing is in the public domain.

RD says:


“Don’t worry, they have a plan to resolve that – when was the last time something made it into the public domain ? Take endless term extensions and make them retroactive, and pretty soon nothing is in the public domain.”

Dont forget about taking PD things and slapping a NEW copyright on them, to lock them up once again.

Tim (profile) says:

Opt-in or out

Whilst I agree completely that copyright law is broken (even more so on the other side of the pond in my opinion), I don’t see the benefit of complete opt-in.

I could see the benefit of the default option being something like creative commons, with attribution needed to be given etc, and then opting in for reserving more rights, but an opt-in or public domain isn’t necessarily a choice any more beneficial for progress

Anonymous Coward says:

Re: Opt-in or out

How do you figure? If someone requires Copyright protection in order to produce their work, then they opt in and they’re fine. If they don’t require Copyright protection to produce their work, and they don’t opt-in Copyright, then defaulting to the public domain seems like the most rational option to take. Copyright wasn’t needed for their contributions, and putting their work into the public domain encourages others to take it and riff off of it, producing further contributions and progress. A default-in system slows everything down, because even things that don’t need the weight of copyright protection end up with it by default and can’t easily be touched.

Anonymous Coward says:

Yes, the 1909 act, as subsequently amended, did have some drawbacks, but on the whole its “formalities” approach was far better than the present system under the 1976 act, as subsequently amended.

Patents have very strict formalities. I see no good reason for copyrights to be free of virtually all formalities, save the requirement to register before a lawsuit can be initiated.

How two systems of law that spring from the same constitutional womb can be so different elludes me.

Eclecticdave (profile) says:

Registration wouldn't be a good idea

I don’t agree with the idea that people should register to get copyright. That would involve the creation of a massive bureaucracy these days and would be difficult to implement internationally (and treaty shenanigans aside, modern copyright law does need to be international in scope).

I do think one simple idea has merit – if you want copyright add a copyright notice, if you’re not bothered don’t.

For the internet that means anyone putting together a site or article might decide the add a (c). Most people generally don’t consider blog posts or tweets to be under copyright anyway (even though they are under current law) so mostly wouldn’t bother with a notice.

The obvious problem with this is what if someone intended to add a notice, but forgot. I’m not generally in favour of dragging PD works back into copyright – but I think a short grace period might be OK in this case, with the proviso that the copyright wouldn’t then apply retroactively to anyone who already used it as PD.

Alligator says:

Re: Registration wouldn't be a good idea

Registration is already a prerequisite to filing an infringement action and a copyright owner cannot recover attorney’s fees or statutory damages if the work was not registered at the time of infringement. Because the law so strongly encourages registration, I don’t think an opt-in system would increase the bureaucracy. As noted in the main post, it would just increase the amount of money going to lawyers.

Wesley Parish says:

Pete Seger's Banjo Book

Speaking of difficulties and consequences, the first and second editions of his Banjo Book were completely public domain, because he never ponied up the cash to register the book; in the third edition which I’ve got, he fesses up to it, and says that apart from a number of copyrighted songs, etc, that appear in the book, it’s still public domain.

I still bought the book. Now I’m wondering what I have to excise out of a putative scanning of the third edition, to remain legally pubic domain – most of the bluegrass chapter will have to go, sorry.

But as I remember, Pete Seger never starved, in spite of having added one more book to the public domain. I would like to see a lot more out-of-print books added to the public domain – or at least, to the creative commons.

E. Pyatt says:

Opt-OUT OK, but length could be shorter

I wouldn’t want to go back to registering copyright. I think there are too many ways for an unscrupulous person to take advantage of someone else that way (e.g. why is a photo of my corgi on a CD of art I didn’t know about or my stupid haiku I posted on a blog on a T-shirt).

I just don’t think the average citizen is posting content with the idea of sharing it with the world at large (maybe only friends and family). I think it’s mostly academics and beginning artists who may want Creative Commons like terms.

I think the Creative Commons or GNU is an excellent way for someone to announce the level of copyright protection needed. It clarifies that a person can use content (but requires a citation which is what’s probably the most important element here).

In theory, I would like a shorter copyright term (I know – Ha!) and clearer Fair Use clauses so you don’t have to fight for every detailed exemption in court.

It would also be interesting to see if you could write a copyright law that wasn’t so dependent on current tech. We shouldn’t have to have a major rewrite of copyright just because we happen to invent “Smell-O-Vision”.

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