Revise the draft
Who Will Own Your Next Good Idea?
Some corporations want to lock up copyright even tighter. Some naive intellectuals want to abandon copyright altogether. Where is a "do-nothing" Congress now that we need one?
CHARLES C. MANN SEPTEMBER 1998 ISSUE
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(The online version of this article appears in three parts. Click here to go to part two. Click here to go to part three.)
ABOUT twelve years ago I walked past a magazine kiosk in Europe and noticed the words "temple des rats" on the cover of a French magazine. Rat temple! I was amazed. A few months before, a friend of mine had traveled to northwestern India to write about the world's only shrine to humankind's least favorite rodent. The temple was in a village in the Marusthali Desert. That two Western journalists should have visited within a few months of each other stunned me. Naturally, I bought the magazine.
The article began with a Gallic tirade against the genus Rattus. -- that sort of thing. Then came the meat: an interview, in Q&A form, with a "noted American journalist" who had just gone to the rat temple. The journalist, who was named, was my friend. No such interview had occurred: the article was a straight translation, with fake interruptions by the "interviewer" such as "Vraiment?" and "Mon Dieu!"
I was outraged. To my way of thinking, these French people had ripped off my friend. I telephoned him immediately; he had the same reaction. Expletives crackled wildly across the Atlantic. Reprinting his copyrighted article without permission or payment was the same, we decided, as kicking down his door and stealing his CD player.
We were wrong. Although the magazine had done my friend wrong, what was stolen was not at all like a CD player. CD players are physical property. Magazine articles are intellectual property, a different matter entirely. When thieves steal CD players, the owners no longer have them, and are obviously worse off.
AUTHOR'S NOTE
A translation is not a copy? Could anyone believe this? In 1853 Harriet Beecher Stowe sued to stop an unauthorized German translation of Uncle Tom's Cabin -- and lost. Copyright, ruled Judge Robert Grier, applies only to the "precise words." Calling a translation "a copy of the original," he opined, is "ridiculous." Only in 1870 did Congress include translations in the Copyright Act.
But when my friend's writing was appropriated, he still had the original manuscript. What, then, was stolen? Because the article had been translated, not one sentence in the French version appeared in the original. How could it be considered a copy? Anomalies like this are why intellectual property has its own set of laws.
Intellectual property is knowledge or expression that is owned by someone. It has three customary domains: copyright, patent, and trademark (a fourth form, trade secrets, is sometimes included). Copyrighted songs, patented drugs, and trademarked soft drinks have long been familiar denizens of the American landscape, but the growth of digital technology has pushed intellectual property into new territory. Nowadays one might best define intellectual property as anything that can be sold in the form of zeroes and ones. It is the primary product of the Information Age.
All three forms of intellectual property are growing in importance, but copyright holds pride of place. In legal terms, copyright governs the right to make copies of a given work. It awards limited monopolies to creators on their creations: for a given number of years no one but Walt Disney can sell Mickey Mouse cartoons without permission. Such monopolies, always valuable, are increasingly lucrative. For the past twenty years the copyright industry has grown almost three times as fast as the economy as a whole, according to the International Intellectual Property Alliance, a trade group representing film studios, book publishers, and the like. Last year, the alliance says, copyrighted material contributed more than $400 billion to the national economy and was the country's single most important export.
These figures may actually understate the value of copyright. Today it is widely believed that personal computers, cable television, the Internet, and the telephone system are converging into a giant hose that will spray huge amounts of data -- intellectual property -- into American living rooms. As this occurs, according to the conventional scenario, the economic winners will be those who own the zeroes and ones, not those who make the equipment that copies, transmits, and displays them. Because copyright is the mechanism for establishing ownership, it is increasingly seen as the key to wealth in the Information Age.
At the same time, the transformation of intellectual property into electronic form creates new problems. If the cost of manufacturing and distributing a product falls, economic forces will drive down its price, too. The Net embodies this principle to an extreme degree. Manufacturing and distribution costs collapse almost to nothing online: zeroes and ones can be shot around the world with a few clicks of a mouse. Hence producers of digital texts, music, and films will have trouble charging anything at all for copies of their works -- competitors can always offer substitutes for less, pushing the price toward the vanishing point.
In addition, creators must deal with piracy, which is vastly easier and more effective in the digital environment. People have long been able to photocopy texts, tape-record music, and videotape television shows. Such leakage, as copyright lawyers call it, has existed since the first day a reader lent a (copyrighted) book to a friend. With the rise of digital media, the leakage threatens to turn into a gush. To make and distribute a dozen copies of a videotaped film requires at least two videocassette recorders, a dozen tapes, padded envelopes and postage, and considerable patience. And because the copies are tapes of tapes, the quality suffers. But if the film has been digitized into a computer file, it can be E-mailed to millions of people in minutes; because strings of zeroes and ones can be reproduced with absolute fidelity, the copies are perfect. And online pirates have no development costs -- they don't even have to pay for paper or blank cassettes -- so they don't really have a bottom line. In other words, even as digital technology drives the potential value of copyright to ever greater heights, that same technology threatens to make it next to worthless.
This paradox has engendered two reactions. One is to advocate eliminating copyright altogether. Led by a small but surprisingly influential cadre of libertarian futurists, anti-copyrightists believe that the increased ease of copying effectively obviates the © symbol and all it entails. "Information wants to be free" -- a phrase apparently coined by the writer Stewart Brand -- is the apothegm of choice here. In this view, copyright restricts what people can do with the intellectual property coming through the wires. Futilely but dangerously, it tries to fence the electronic frontier. It unjustly creates monopolies in the basic commodity of the Information Age. It is a relic of the past and should be expunged.
The other, opposing reaction is to strengthen the hand of copyright owners. Realizing the growing economic import of copyright, Congress is rapidly trying to overhaul the nation's intellectual-property regime. The changes would give copyright owners more control for longer times; some would make it a crime to work around copyright-protection schemes. A different tack is being taken by state governments, which may bypass copyright altogether by amending the laws governing sales contracts. If they succeed, copyright owners will be able to ask individual customers to agree to contracts regulating the zeroes and ones flowing into their homes.
AUTHOR'S NOTE
"Most people do not realize the extent to which copyright pervades their lives," says L. Ray Patterson, a professor at the University of Georgia School of Law and the author of a standard history of copyright. "They get their education from copyrighted books, they get their news from copyrighted papers and TV programs, they get their jobs from copyrighted want ads, they get their entertainment from copyrighted music and motion pictures -- every aspect of life is affected by the law of copyright."
Seinfeld to your computer, please read the following conditions and terms, paying careful attention to the clauses that forbid taping or replaying the program even once. After you click "OK," the transmission will start.
Because I make much of my living from copyright, I find the to-and-fro fascinating, and have a vested interest in the results. But issues bigger than the financial status of writers are involved. Copyright is the regulatory authority for the marketplace of ideas. It lays out the economic ground rules to create the hubbub of debate that the Founders believed necessary for democracy -- one reason that they included copyright in the Constitution (Article I, Section 8, instructs Congress to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries"). Copyright law allows Michael Jackson to make a fortune from the Beatles catalogue, and Bill Gates to add to his untold wealth by licensing electronic reproductions of the photographs of Ansel Adams. But its real purpose is to foster ever more ideas and ever more innovation from ever more diverse sources. When, in 1790, George Washington asked Congress to enact copyright legislation, he argued that it would increase the national stock of knowledge. And knowledge, he said, is "the surest basis of public happiness."
Today the marketplace of ideas is being shaken up by the competing demands of technology, finance, and law. Large sums of money are at stake. Change seems inevitable. One way or another, we will lay a new institutional foundation for literary culture in the United States. How we do it will play a big role, according to the logic of the Founders, in determining our future well-being. It would be comforting to believe that decisions will be made thoughtfully and well. But little evidence suggests this is true. Indeed, we may be heading into a muddle that it will take us a long time to escape.
