I have been talking about copyright issues from the perspective of taking Lawrence Lessig’s Free Culture for granted. Not all of my readers have that perspective. So I’d like to take a moment to get us on the same page.
Lessig’s 2003 book was a watershed moment in the copyright discussion. He articulates a sharp distinction between publishing’s need for some copyright protections, on the one hand, and the value of the once-unregulated copying that has been lost with modern copyright’s expansion to regulate digital media.
We used to be able to rely on the relative narrowness of the copying process — only people with printing presses could copy books — to set a reasonable scope on copyright. Most uses of books (reading, excerpting, repurposing, etc.) were therefore not regulated by copyright, striking a good balance between public benefit from promoting publishers and public benefit from unregulated use of the work (including its free use in the public domain after, originally in 1790, 14 years).
But the fact that this public/private balance was a good one turns out to be contingent on the technological environment of those times, not on an absolute right of publishers to control copying. As I mentioned earlier, anything you do with media on a computer involves making copies. So recently, at the media industries’ urging, all those unregulated uses are being subsumed under copyright law and locked down by software. In the digital world, there is no room for unregulated use of copyrighted media.
Fair use has been pressed into service to counteract this imbalance, but as Lessig argues, the right to hire a lawyer and claim fair use is just no match for the presumption of copyright infringement with which fair use is now burdened. In another recent post I mentioned the very real “chilling effect” the prospect of being sued has on even the Sarah Lawrence College library, which is in theory protected not only by fair use but by its status as an educational institution and a library.
Lessig does a great job illustrating these forces at work in much more detail. And I won’t give away the ending. You can get a free pdf version here: http://www.free-culture.cc/freecontent/. Pages 140-147 sum up Lessig’s main point with handy diagrams, and should be required reading for any discussion of copyright policy.
— Edited 2007.06.15 to clarify that publishers’ interests are only countenanced in copyright insofar as they are a proxy for the public interest in publishing.