A Middle Ground on Copyright
By Walt Crawford
American Libraries Columnist
Senior analyst, Research Libraries Group
Column for September 2004
Libraries rely on copyright. Without copyright to encourage creation and dissemination, you would have fewer available resources. But your ability to lend and preserve depends on balancing public rights: the First Sale Doctrine and ordinary-use rights so you can organize and lend things you’ve paid for, and fair use rights that allow you to maintain and preserve materials.
Two early “Crawford Files” were about copyright—a philosophical piece and a warning about proposed Draconian legislation. The worst legislative proposals disappeared, but plenty of bad law is still in the works. Unfortunately, U.S. copyright is already massively unbalanced toward total control by copyright holders.
The Sonny Bono Copyright Term Extension Act of 1998 lengthened the life-plus-50-years copyright term by 20 years. The 1998 Digital Millennium Copyright Act rode roughshod over fair use by outlawing otherwise-legal technologies that could circumvent copy protection and digital-rights management, with no fair use defense. Database-protection legislation currently before Congress would even uphold rights for collections of aggregated facts.
Extreme copyright
Copyright industry representatives portray positions on copyright as black and white: Either you’re for total copyright control or you’re out to eliminate copyright altogether. That polarization is useful in pushing legislation but stands in the way of restoring balances among the parties who create, disseminate, and use works.
Extreme-copyright advocates equate intellectual property with physical property, although copyright isn’t a property right at all, it’s a limited constitutional monopoly. They ignore fair use, deny it exists, put scare quotes around it, or deride it as the last defense of scoundrels. They refer to citizens as consumers. Why not? Consumers have the right to buy or not buy; that’s about it. We’re told that digital-rights management is there to benefit consumers, because restricting our use of stuff encourages publishers to bring out more stuff for us to buy.
A few digital dreamers and other utopians say copyright should not exist. These folks (there aren’t many of them) say creativity should be its own reward or that musicians, writers, and other creators should make their money through performance and appearances. The more cynical among this splinter group add that in a digital world, they’ll find some way to make your material freely available anyway, so live with it.
Balanced copyright
In the real world, most librarians and other citizens who think about copyright probably believe in what’s now called “weak copyright” but should be called “balanced copyright.” They believe creators and intermediaries should benefit from their works, but that those who buy and use creations also have rights.
Balanced copyright cites the Constitution in granting limited terms for the copyright monopoly—perhaps the 14 or 28 years that sufficed in the United States for most of our history, maybe a longer plausible limit. At some point, works should enter the public domain to encourage the progress of science and the useful arts.
Balanced copyright means people and institutions should be able to use their purchased copies of mass-produced works pretty much as they please: copying for personal use or preservation, lending to others, excerpting for use within other works.
We should be able to make CD-R compilations from the CDs we own, for our own use, just as we made mix tapes from LPs. We should be able to make mix DVDs with scenes from purchased movies and recorded TV shows. We should be able to copy text and images from e-journals and books to use in reports and new creations. And libraries should be able to preserve born-digital materials, which frequently means bypassing copy protection and digital-rights management.
Restoring a balance
Federal laws have unbalanced copyright toward the rights holders, rarely toward the content creators. There are some efforts to restore some balance, including the Digital Media Consumers’ Rights Act, which would allow copy-protection circumvention for fair use or research purposes; and the Public Domain Enhancement Act, which would make it easier to find rights holders for older material. They represent uphill battles.
Libraries need copyright. Libraries need balanced copyright. Without it, your ability to preserve and even to lend is in danger.
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