The Copyright paradox: Is a private monopoly necessary for public culture?

“ The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ”

“ The legal principles usually applicable to property, personal rights, or monopolies are not always appropriate for copyright. The primary purpose of copyright is to stimulate the creation and dissemination of intellectual works, thus advancing the progress of science and useful arts. The grant of exclusive rights to authors is a means of achieving this end, and of compensating authors for their labors and their contributions to society. Within limits, the author's interests coincide with those of the public. Where they conflict, the public interest must prevail. ”

“ IN GENERAL In essence, copyright is the right of an author to control the reproduction of his intellectual creation. As long as he keeps his work in his sole possession, the author's absolute control is a physical fact. When he discloses the work to others, however, he makes it possible for them to reproduce it. Copyright is a legal device to give him the right to control its reproduction after it has been disclosed. Copyright does not preclude others from using the ideas or information revealed by the author's work. ”

“ Many authors could not devote themselves to creative work without the prospect of remuneration. By giving authors a means of securing the economic reward afforded by the market, copyright stimulates their creation and dissemination of intellectual works. Similarly, copyright protection enables publishers and other distributors to invest their resources in bringing those works to the public. ”

“ During the copyright term, the public pays the rightsholder a fee to reuse the work. The idea is that these economic benefits will incentivise creators to make new creative works, over which they will enjoy a limited monopoly from which they may profit and exert control. ”

“ The charge which I bring against my honourable and learned friend's bill is this, that it leaves the advantages nearly what they are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. ”

“ I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.
We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honourable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. ”

“ COPYRIGHT AS A MONOPOLY Copyright has sometimes been said to be a monopoly. This is true in the sense that the copyright owner is given exclusive control over the market for his work. And if his control were unlimited, it could become an undue restraint on the dissemination of the work. On the other hand, any one work will ordinarily be competing in the market with many others. And copyright, by preventing mere duplication, tends to encourage the independent creation of competitive works. ”

“ But does intellectual property work this way now, promoting the ideal of progress, a transparent marketplace, easy and cheap access to information, decentralized and iconoclastic cultural production, self-correcting innovation policy? Often it does, but distressingly often it does the reverse. The rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare—restraining the next generation of creators instead of encouraging them. ”

“ The profiteers’ insatiable thirst for profit clearly benefits from their new friendship with creativity and the creative. Unlike physical objects, concepts and ideas can be shared, copied and reused without diminishment. No matter how many people use and interpret a particular concept, nobody else’s use of that concept is surrendered or reduced. But through the use of intellectual property law – in the form of patents, trademarks and particularly copyright – concepts and ideas can be transformed into commodities that are privately regulated and owned. ”

“ Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; ”

“ The ultimate task of the copyright law is to strike a fair balance between the author's right to control the dissemination of his works and the public interest in fostering their widest dissemination. ”

“ Thus we have a corollary to the Jefferson Warning—call it the Sony Axiom: cheaper copying makes the limitations on copyright more rather than less important. Without those limitations, copyright law will bloat and metastasize into a claim of monopoly, or at least control, over the very architectures of our communications technology. And that is exactly where the logic of the Internet Threat is taking us today. ”

“ These doctrines (and others) provide ample space for artists and other creators to use existing materials to make valuable new works. They account for most, if not all, of the examples given by the dissent, as well as the dissent’s own copying (and the Court’s, too) . If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity. ”

“ In view of the whole case, your committee are satisfied that no form of international copyright can fairly be urged upon Congress upon reasons of general equity, or of constitutional law; that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors as a class, and would be not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hindrance to the diffusion of knowledge among the people, and to the cause of universal education ”

“ Much of the new music available remains unrecorded, and no one can foretell whether a recording of a particular composition will strike the public fancy. Author and publisher groups have urged strenuously that, since the compulsory license is no longer justified as an antimonopoly measure, it should now be eliminated. They argue that the fundamental principle of copyright--that the author is to have the exclusive right to control the commercial exploitation of his work--should apply to the recording of music, as it is applied to all other kinds of works and to other means of exploiting music. ”

“ It is not merely supposed to produce incentives for innovation by rewarding creators, though that is vital. Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production. It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace. Copyright law is supposed to give us a self-regulating cultural policy in which the right to exclude others from one's original expression fuels a vibrant public sphere indirectly driven by popular demand. ”

“ And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil ”

“ It is a monopoly not in the offensive sense, but in the sense of private and personal ownership; the public is not the loser but is the gainer by the protection and encouragement given to the author. The whole aim of copyright protection is to permit the author to sell as he pleases and to transfer his rights collectively or severally to such assigns as he may choose. Copyright is a monopoly only in the sense that any ownership is a monopoly. ”

“ So far from copyright law being any favor which the state confers upon the author, any privilege which is granted to him by the state, it seems to me that it is simply a mode of preventing such inconvenience as I have just referred to; so that in my apprehension the application of the word "monopoly" to persons who possess rights under the copyright law is an entire mistake; it is merely a contrivance, arising out of the peculiar nature of book property, to put that property upon the same footing as other kinds of property. ”

“ It seems clear enough, then, that the monopoly which occurs in the use of a copyright, is of an entirely different sort from the monopolies which we have previously considered. Competition is not destroyed by it, and its only effect upon the public relates to an entirely new [89] production, which is not a necessity, and which the public could not have had an opportunity to enjoy if the copyright law had not made it possible for the author to write the book with the prospect of being repaid for his labor by the sale of the printed volume. ”

“ 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. A copyright, like a patent, is 'at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects.' Kendall v. ”

“ Publication is expressly distinguished from performance, exhibition or delivery.
Definition of copyright
Copyright is defined to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever" or any translation thereof, to publish, perform, or deliver the work in public, to dramatize or novelize it, to make any record, roll, film or other contrivance by which it may be mechanically performed or delivered or to authorize any such acts. Architectural works of art are included as to design but not process or method. ”

“ Definition of copyright The copyright to literary or artistic work consists in the exclusive right to dispose of the same, to publish, sell, and translate the same, or to authorize its translation, and to reproduce the same in any manner either entirely or partially. ”

“ A deri­vative work is one based upon one or more pre­existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, trans­formed, or adapted. A work consisting of edi­torial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. ”

“ An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author. ”

“ If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author and it is no defence that another person has appropriated a part and not the whole of any property. ”

“ The compro-
mise resultsIn the series of discussions before the Committees, the friends of copyright argued for the exclusive and unrestricted right of the musical composer to control absolutely the mechanical reproductions of his work, while the representatives of "canned music" argued at first that mechanical reproduction should be permitted without reference to copyright, and later that there should be entire liberty to make reproductions of a musical work on the sole condition of a specified payment to the copyright proprietor. ”

“ The idea/expression dichotomy is simply not designed to determine whether Congress's grant of a limited monopoly over an expression in the public domain runs afoul of the First Amendment.
ii. Fair Use Defense
"The [fair use] defense provides: the fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) , scholarship, or research, is not an infringement of copyright." ”

“ On the other hand, the creativity standard of originality is too high. A creative standard implies that something must be novel or non-obvious - concepts more properly associated with patent law than copyright law. By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy of the objectives of the Copyright Act. ”

“ Copyright being in essence a monopoly giving to the copyright proprietor "exclusive rights," as the Constitution provides, the only limitation upon it should be that indicated in the Constitution which confines protection to "limited times." The opponents of copyright have frequently taken the course of falling back upon the plea that in the interests of the public the author should not have exclusive right to his writings and to manage his own affairs, but that Congress should prescribe how he should market his property. ”

“ In return for the legal monopoly, patent holders must describe the technology well enough to allow anyone to replicate it once the patent term ends. Thus patent law allows us to avert two dangers: the danger that the innovation will languish because the inventor has no way to recover her investment of time and capital, and the danger that the inventor will turn to secrecy instead, hiding the details of her innovation behind black box technologies and restrictive contracts, so that society never gets the knowledge embedded in it. ”

“ Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living. ”

“ But what I do complain of is that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.
The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. ”