Copyright As Emphysema: Bad To Begin With And Only Gets Worse

from the now-there's-a-quote dept

An anonymous reader points me to the comment section of a recent Doc Searls post discussing problems with the copyright system. The post itself is interesting (though covering ground familiar to those around here), but the comment in question has this rather unique analogy from Searls comparing copyright to emphysema:
I won't speak for Bill Patry, but I'm beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.
To support that point, he then asks an interesting question:
Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully -- or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can't, but I'm not a lawyer.
It's a good question. I left a comment pointing to the only one I could think of off the top of my head: which was the US's decision that federal gov't documents could not be covered by copyright. That, of course, is a tiny tiny minor push back on copyright, and many other countries haven't even gone that far, preferring to use "crown copyright" to allow governments to claim copyright on documents. In thinking about it a bit more there are two other possible points -- though both are again pretty minor. First is the fact that the 1976 Copyright Act codified "fair use." Before that it existed in common law, but was not directly in the law. However, considering that we basically gave up nearly the entire public domain on modern works, that Act was hardly a step towards less copyright. In fact, it was the single largest step towards copyright expansion in the US's history.

The only other (again tiny) pushback on expansionist copyright law was not from the legislature, but the recent court ruling (pushing back on a legislative expansion) that found a certain classification of works that were temporarily in the public domain couldn't be pulled back under a copyright regime. That case is going to be in appeals for years, and it applies to such a small class of works, it's barely worth mentioning at all.

But, of course, as we were recently discussing, the expansion of copyright has been quite massive during the entire history of the US. But, again, like Searls, I'm not a lawyer (or a historian), so perhaps we can get some others more knowledgeable on the subject to weigh in on Searls' question: what examples are there of legislatures actually decreasing the scope of copyright restrictions?

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  1. icon
    Fred McTaker (profile), 20 Aug 2009 @ 12:54am


    I'm not an historian, but I'm married to one. The second-hand sense I get is that the only real "rollbacks" of copyright privileges have happened as the result of national revolutions. The U.S. didn't have any copyright law at all until 1790 -- about 14 years after the Revolutionary War. I could be wrong, but I don't think the U.S. honored the copyrights of any other nation until 1891. Here's a link supporting both of those dates:

    The 1976 Act was a huge jump -- extending maximum copyright from 56 years (1909 Act) up to about 100 years or more, depending on the lifespan (and early writings) of the author. The greediest part of the grab was including unregistered, unclaimed, and even *unpublished* works, all of which makes no sense when the point is to get new works into the public domain rather than kept secret. "Fair Use" can hardly be seen as recompense, as a more liberal interpretation was already widely held by common law. The U.S. didn't even join the Berne Convention in respecting the copyrights granted in other countries until 1988. TRIPS was another huge encroachment on the sovereign rule of independent nations committed in 1994. A lot of damage to the U.S. public domain was done during the Clinton years, which is the main reason I'm not a fan.

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