Readings for this week:
- Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001). [Chapters 1-6]
- Carrie Russell, Complete Copyright: An Everyday Guide for Librarians (Washington, DC: American Library Association, 2004). [Chapters 1 and 2, and pages 161-163]
My favourite passage from this week’s reading was from Litman’s layman-friendly introduction to the history of digital copyright lawmaking. While much content of the assigned chapters was familiar to me from a course I took in the spring (LIS 661: Information Ethics and Policy), I found Litman’s chatty overview of the major legislative events in digital copyright history from 1900 to the early 1990s especially helpful for bringing a novice up-to-date on how digital copyright laws got to where they are today. This was the chapter titled “Copyright and Compromise.” In sum, I would say: what a soap opera. And somehow I was not surprised. My favourite passage records just such a moment of bureaucracy-meets-humanity that, amazingly, got the entire 20th century of digital copyright lawmaking in motion:
Beginning in 1901, Thorvald Solberg, the recently appointed first Register of Copyrights, pleaded repeatedly with Congress to appoint a special commission to revise the copyright law. Members of the Senate Patent Committee, however, were hostile to the idea of a commission. The Librarian of Congress, Herbert Putnam, suggested that Congress instead pass a resolution authorizing the Library of Congress to convene a conference of experts and interested parties to consider a codification of the copyright laws. The members of the Senate Patent Committee concluded that it would be improper for Congress to authorize such a conference, but suggested that they would be delighted if the Librarian were to call an unauthorized conference on his own motion. (38-39)
You betcha that the Librarian did exactly that.
I was also gratified that both Litman and Russell commented upon the “potential market” loophole within the Fair Use exemption (Section 107). “[T]he effect of the use upon the potential market for or value of the copyrighted work” is one of the factors to be considered when determining whether or not a use made of a copyrighted work falls under “fair use.” The problem here is that everything has a “potential market,” and virtually any use of a work could be construed to have an effect upon an imaginary, yet-to-exist market that could take any form. Basically, the clause asks you to consider the potential effect of a use of a work upon a potential market. And get this: a market itself is about potential. It’s common sense if you think about it. I don’t own an economics dictionary and I’m already all comfy in my study at home, so here’s an economic definition of “market” from About.com, which I am happy to quote since the attached bio of the definition’s author is pretty convincing (too bad it contains a typo–see if you can find it):
A market is any place where the sellers of a particular good or service can meet with the buyers of that goods and service where there is a potential for a transaction to take place. The buyers must have something they can offer in exchange for there to be a potential transaction.
Yippee. Officially, one of the clauses in the Fair Use exemption asks you to consider the effect of your use of a copyrighted work on the potential potential transactions that the copyright owner could make.
Bottom line: “potential market” loophole = bad.
Okay, it’s really time for dinner now so I’ll just leave you with my (other) favourite passage from Litman’s book so far. This one I like because it sums up a thorny situation so accurately and accessibly. What it comments upon is the pre-legislative process for copyright legislation that has become typical since the 1920s–one where all the industry stakeholders for the types of information media affected by the proposed legislation hold the power in determining what goes in a copyright bill. They negotiate amongst themselves and then bring a draft of a bill that they have all agreed upon to Congress. Congress doesn’t bother trying to draft a copyright bill without the industry stakeholders because the moment they try to pass it, all the stakeholders move to block it. This is what happens when stakeholder negotiation is the primary way by which copyright bills get written:
The need to balance concessions in order to achieve such agreement, of course, imposes constraints on the sort of legislation that is likely to emerge from the process. Unless the participants become convinced that the new legislation gives them no fewer benefits than they currently enjoy, they are likely to press for additional concessions. It must, therefore, be expected that any successful copyright legislation will confer advantages on many of the interests involved in hammering it out, and that those advantages will probably come at some absent party’s expense. But nobody need take the responsibility for making difficult political choices associated with selecting the interests that the legislation will disadvantage. Indeed, the process is almost tailormade to select those interests thoughtlessly and automatically, as a by-product of ongoing negotiations. (62)
Laws as by-products of negotiation. How *comforting*. Or realistic? I can’t decide.
In any case, a subsequent observation that Litman makes holds true, which is that “[n]egotiations among current stakeholders tend to produce laws that resolve existing interindustry disputes with detailed and specific statutory language, which rapidly grows obsolete” (63). That is definitely not comforting at all, sarcastic or not.