In Digital Copyright, Jessica Litman explains that not very long ago, copyrights were conceived of as a bargain between creators and the public rather than a type of ownership over intellectual property:
If you read books, articles, legal briefs, and congressional testimony about copyright written by scholars and lawyers and judges fifty years ago, you find widespread agreement that copyright protection afforded only shallow and exception-ridden control over protected works. Forty, thirty, even twenty years ago, it was an article of faith that the nature of copyright required that it offer only circumscribed, porous protection to works of authorship.
The balance between protection and the material that copyright left unprotected was thought to be the central animating principle of the law. Copyright was a bargain between the public and the author, whereby the public bribed the author to create new works in return for limited commercial control over the new expression the author brought to her works.
The public’s payoff was that, beyond the borders of the authors’ defined exclusive rights, it was entitled to enjoy, consume, learn from, and reuse the works. Even the bounded copyright rights would expire after a limited term, then set at fifty-six years.
A corollary of the limited protection model was that copyright gave owners control only over particular uses of their works. ... Thus, the fact that copyright protection lasted for a very long time (far longer than the protection offered by patents); the fact that copyright protection has never required a government examination for originality, creativity, or merit; and the fact that copyright protects works that have very little of any of them was defended as harmless: because copyright never took from the public any of the raw material it might need to use to create new works of authorship, the dangers arising from overprotection ranged form modest to trivial.
This conception of copyrights worked very well for a long time, but today there is far too much money to be made in the sale and control of copyrighted works. In the past, copyright was generally controlled by individual artists; today, copyright tends to be controlled by large media corporations which exist for the purpose of making money from copyrighted works. They have far too much to lose from the “bargain” paradigm, but much to gain from the now-current “property” paradigm.
Beginning in the late 1970s and early 1980s, advocates of copyright owners began to come up with different descriptions of the nature of copyright, with an eye to enabling copyright owners to capture a greater share of the value embodied in copyright-protected works.
In the last thirty years, the idea of a bargain has gradually been replaced by a model drawn from the economic analysis of law, which characterizes copyright as a system of incentives. Today, this is the standard economic model of copyright law, whereby copyright provides an economic incentive for the creation and distribution of original works of authorship.
The upshot of the change in the way we think about copyright is that the dominant metaphor is no longer that of a bargain between authors and the public. We talk now of copyright as a property that the owner is entitled to control — to sell to the public (or refuse to sell) on whatever terms the owner chooses. Copyright has been transformed into the right of a property owner to protect what is rightfully hers. (That allows us to skip right past the question of what it is, exactly, that ought to be rightfully hers). And the current metaphor is reflected both in recent copyright amendments now on the books and in the debate over what the laws mean and whether they go too far.
For the past century, lawyers representing various business with an interest in copyright legislation have met together, created compromises which they an all live with, and then have written the relevant legislation. Congress then dutifully passes whatever the lawyers give them, not taking the time to figure out if they should or not.
Unfortunately, this means that anyone not present at the legal negotiations doesn’t have their own interests represented — and that includes the general public. In theory, our elected representatives are supposed to represent us in this matter, but in this case they don’t.
For the most part, this hasn’t actually been a problem — these laws only applied to the relevant businesses, and so long as that was the case, everyone was happy. Now, however, copyright lawyers want these laws to start applying to everyone else in their daily lives. We have had no voice in the creation of these laws, but we are supposed to adjust our lives to fit them.
One problem with this, aside from the obvious fact that we had no say in these rules, is that we are being expected to live according to rules we can’t understand. Not even the lawyers responsible for these laws entirely understand what is expected of people.
It seems likely that one of the reasons why the downloading of songs via the internet is so popular is that people are rejecting the “property” model of copyright in favor of the “bargain” model — and the copyright holders are breaking their side of the bargain, so the public isn’t even attempting to uphold theirs. People will be willing to accept a bargain they consider fair, but the media conglomerates don’t appear to be interested — and then they wonder why they lose money.
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