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| Library Competes With Animated Characters |
Once upon a time, there was a wall, just like in medieval times, it was high, with ramparts, protecting a magnificent town. Today the town is called the city of contemporary arts. The height of its wall varies from section to section, and it is measured in years - some parts are 120 years high, some parts are 90 years high but most of it has a height of "life plus 70." The wall is called copyright.
Across the river from that city is the land of literature and history and philosophy, the natives call it the LOAK, the Land Of All Knowledge: the trivium and the quadrivium, the land of knowing about and the land of knowing that, the land of the internalists and the externalists, the land of Dewey and Bliss, the swamp of Richardson (Ray, Tiger Sis, Boom, ah!), and the Library of Congress. It is the land of information architecture, the land of knowledge representation. There are no walls here; yet that does not mean access is easy. Many may look, and some will see and few will be able to internalize some fraction of the vastness. Yet we are working on increasing that fraction and decreasing the number of the few to less few, i.e. to more. Our electronic minds are far ahead of the grey matter between the ears, at least in recall, and even in juxtaposition, if not in whimsical association, caprice and self-serving rhetoric - there the human mind still reigns supreme.
Looking toward the walled city on the island and looking down the narrow causeway, one wonders why someone would build a wall that high around all contemporary expression. Is there a market for this stuff? Is the a market for most of it? Will a poem still make money in a hundred years? This wall has a secret; this wall is really an unintended consequence having nothing to do with actual contemporary arts.
Life plus 70 can be justified for big hit blockbusters; it seems excessive to include all contemporary arts. Any expression completed in the last year of an artists life will be protected for 3 score and ten - any expression earlier in an artists life will be protected for well over a hundred years. Even if a best selling author should die young, the time that the author's "expressions" spends behind the wall will outlive all contemporary readers, except the most precocious babies. Contemporary expressions have been excluded from the public domain. Congress has declared the public domain to be a realm of history; temporally remote history.
The copyright wall surrounds a city of things created after 1923. Nothing created before 1923 may live in this city. The new gigantic wall was built in 1976; before that the citizens had let the fortifications protecting contemporary expressions crumble. They had let their wares, the written expressions of contemporary art, thought and ideas, i.e. written expression in general, pass over the causeway into the land of knowledge with no thought of guarding their ideas for the market. Through an accident of "legislative oversight" [define: unintentional failure to notice] 85% of copyrights registered before 1964 slipped into the public domain before Congress was able the stanch the hemorrhage. It seems not many cared to renew "protection." Easy enough to fix this embarrassing problem; abolish renewal. But that was still before animation. Animation changed all that.
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| Early WWWrestling |
Toward the beginning of the third generation, the sense (at that time) of "limited time" had been reached; the measure was full. The law of the land read that enough money had been made; limited time had expired. Donald and Mikey were invited into the city of knowledge as had all beloved figures before - Ulysses and Penelope, and Aeneas and Dido, and Parsifal, Arthur and the Green Knight, and Faust and Gretchen and the Dashwood girls, and Dorothea and Ladislaw, and, of course, Captains Bligh and Ahab, but not Captain Queeg. Yet the characters would not go. The Big Bad Wolf and the Three Little Pigs had had experience in building fortifications of various kinds and recommended the wall (of brick and stone). The garrison of Disney Castle concurred, Congress was activated for paltry fraction of the net, the rubber stamp was stamped and the wall was built. The Black Robes of the USDC were stationed on the ramparts. The wall to protect Disney animations enclosed all of contemporary expression. The big stars of the trivial genres of expression were pleased.
Each day, bags of money are hauled across the causeway and each day images and music and text are in the back haul. Will we ever tire of the Magic Kingdom and the trivial arts?
Meanwhile, in the Public Domain
In Information Architecture Land, meanwhile, the builders are busy. At uchicago they have built a web site that takes the articles of the US Constitution and links each Article with the writings of the "founders" that could be considered a commentary on the relevant Clause - all men and only men, I am afraid - hence the "Founding Fathers" and not the founding single-moms.
The "Copyright Clause" reads: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
There are 15 commentaries or background to Article 1, Section 8, Clause 8, aka the "Copyright Clause," going back to when the Crown was calling the shots in the 13 Colonies.
For a list of the 15 commentaries see:
http://press-pubs.uchicago.edu/founders/tocs/toc.html
ITEM: Perhaps it would be good to start the peripatetic meander through historical comment on intellectual property with Blackstone. William Blackstone (1723–1780), jurist, law professor and MP, was a British theoretician and proponent of common law and a great influence on the development of law in the 13 Colonies to the time of Lincoln. First his view of intellectual property in Roman Law:
The Roman law adjudged, that if one man wrote any thing, though never [sic] so elegantly, on the paper or parchment of another, the writing should belong to the original owner of the materials on which it was written: meaning certainly nothing more thereby, than the mere mechanical operation of writing, for which it directed the scribe to receive a satisfaction; [Blackstone, 1776 - Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979.]see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s3.html
The guidance for Roman Law was whoever owned the vellum owned the ideas written thereon. Much was written by slaves, Greek slaves, who could be considered employees with rights to anything produced going to the owners of the slave. Given that copies were propagated from copies and that the act of copying was the main expense, it made sense that the physical copy held the value. [Aside: The rights to much I produced personally in my working life belongs to the Trustees of the institutions that paid my rent, furnished the tools of my trade and filled my lunch pail.] The Roman attitude towards written expression also explains why there were no bestseller lists of Roman blockbusters that survived the Vandals; blank paper was more valuable.
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| 1771 American Printing |
Yet Blackstone does see a precedent for IP in Rome if I read the text correctly:
"... in works of genius and invention, such as a picture painted on another man's canvas, the same law gave the canvas to the painter." [ibid.]Written ideas are not mentioned but pictures are. Did the Romans prize interior decoration over literature? It is possible that copying text was thought of a mechanical task with a low skill level. Painting, however, be it a copy or not, would require advanced skills worth paying for.
Perhaps we can call it a tie, the Romans seemed interested in projecting power - the thought that knowledge could be power eluded them. They seemed to have resisted innovative Greek ideas especially. That explains among other things their amazingly simple minded road maps of the Empire. Merely crude and merely effective, no big picture. [Google: Peutinger Map]. Moving on.
It is ironic that the development printing press in the 15c. really mimics the development of high speed scanning in the 21c. In each case copying became dramatically easier. Before printing copies had to be fashioned by hand. This meant that the cost of making the copy was the primary consideration. Verbatim copies were practically impossible. The copy, whatever its defects, was the object of value. Any thought of the original was impossible. The limited distribution of hand-written copies made payments to authors unrealistic. Printing allowed much wider distribution of books and opened the prospect of paying authors.
As easy as printing is compared to scribal copies, so are electronic copies compared to printed copies. In the 15c. the task was to control the rampant spread of printed material - censorship was a chief priority. Creating a monopoly for the printer's guild was an administrative strategy. The rights of authors evolved out of this mechanism for censorship, production and distribution. Today, both legacy printings and new expression are finding their way to a virtual market no longer dependent on physical artifacts. As the "copiers" of the 15c. saw their industry evaporate - so electronic publication may make some specific kinds of printing evaporate. Clearly copying by hand did not disappear in the 15c. - so printing will not disappear in the 21c.
By the 18c. Blackstone seems to have felt that the exclusive privileges that the crown had traditionally reserved for the Stationers Guild should open the door for exclusive privileges for the subjects of the crown, for the authors. This is a tentative reading.
The argument given is that any "expression," oral or written has the unmistakable mark of the author's style and thus: "... it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given." [ibid.]
Should an author give up this right - or [my thought: should this right expire] - then: "... it is then a present to the public, like the building of a church, or the laying out a new highway." [ibid]Blackstone thus lays a theoretical foundation for both copyright, the transfer of copyright, as well as the public domain - the present of the author for the common weal.
ITEM: In the Massachusetts Constitution, of 1780, there is one of those unbearably long 18th c. sentences that mentions everything in long lists of disparate items at whose center is the phrase: "... it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences ..." followed by a pitch for raising funds for Harvard. The Commonwealth seems to have proposed a generous regimen of public subsidy.
see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s4.html
ITEM: James Madison's statute for copyright for Virginia grants a 21 year period of exclusive publications rights. It covers all the bases they could imagine back then - 1785. These bases are: fee, 3 Shilling, books (or pamphlet) already printed, or yet to be printed, exclusive rights to author, heirs, or whoever might have bought the right to copy or a piece of the action, nix on having someone else copy it, nix on importing copies from England - term 21 years - penalty, double the value of the books.
see: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s5.html
It is comical to consider how many more wrinkles future generations will find, for a random example: copyright for a single page instructions to a seamstress to guide the work on a dress pattern - a concern of the garment district, late 19c.
ITEM: Snippets from the Federal Convention of 1787 show the final language of clause 1,8,8:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" [US Const., 1,8,8]see: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s6.html
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| Federal Convention of 1787 |
It is instructive to note some of the items that did not make it into the clause - in the form of a top 8 list:
8. To secure to literary authors their copy rights for a limited time
7. To establish an University
6. To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries
5. To establish seminaries for the promotion of literature and the arts and sciences
4. To grant charters of incorporation
3. To grant patents for useful inventions
2. To secure to authors exclusive rights for a certain time
And the top language that did not make it into Clause 1,8,8 - number 1.: "To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures." [Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.]
Some items were combined some items were rejected for the Federal Govt. and reserved for the States should they care to do such things. The goal seems to have been a lean, clean government machine in DC.
ITEM: Madison's notes on 1,8,8 in the Federalist seems to be just an avowal of the uncontroversial nature of the clause.
see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s7.html
ITEM: The letter of the boiler inventor James Rumsey to Jefferson illustrates some of the complexities of the patent process as handled by the states. First, I am glad the letter was published as part of the Jefferson Papers and not held hostage in a document box somewhere by a literal interpretation of the statutes on unpublished materials. Second, the letter is the first peek into an amazing can of worms that the warriors in the current patent wars have brought to ever more amazing levels.
see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s8.html
A thorough discussion must wait for a later time.
ITEM: Hamilton's suggestions in the area of the useful arts go along the lines of public investment.
see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s9.html
The Ideas of Jefferson on IP.
As I understand it, to approach Jefferson's position on Intellectual Property (IP), one first must deal with his antipathy to Blackwell and English common law. It may be that English law stimulated his dialectic reflexes. Yet IP is hard to argue out of existence. Jefferson's arguments do not seem as apodictic or incontrovertible as one might wish, should one want to build on his ideas. Questioning the concept of intellectual property can be done from the perspective of a rich man, from the perspective of an aristocrat who may not understand the aspirations of the lower orders; it cannot be done if concern for someone attempting to earn a living through writing is part of the equation. Intellectual property may be one area where Jefferson's ever present elevated view of "MAN" cannot be transferred easily to the ordinary person.
The occasion is a letter from Thomas Jefferson to Isaac McPherson 13 Aug. 1813. See:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html
The rhetorical construct is clearly Jeffersonian, had I more experience with his work I could give similar examples. First comes a swipe at the English precedent. He disdains the idea that there is a "natural right," hence "exclusive right" of inventors and heirs to the inventor's inventions. He does not want to grant the implications of arguments based on "natural right" however much he might actually embody it in practice. His own chosen term is "Universal Right."
Then comes a Jeffersonian thought - property does not derive from "nature" to a person, property is granted by social law within the community of all men (and the women managing their households). One must remember that the "natural" rights of property (and IP) according to Blackstone was derived from the natural right of the Crown to do whatever it pleased with any property as long as a piece of parchment could be filled with words and a seal affixed and a troupe of men with spears sent to deliver it.
Hence Jefferson's hostility to the beguiling and rather inescapable logic of an author's exclusive [read: natural] rights to creations and his counter attempt to assert a kind of groovy communal collective perspective. Jefferson saw himself as a temporary steward of property. He saw the claims of natural right as being used to oppress generation after generation. It may be that the great families of Virginia in Colonial times still had form of paternalistic communal spirit, effective stewardship of agricultural resources, and a sense of extended family in which rebellion might have been punished, severely even, yet the fabric of community had not begun to fray.
There are some attempt in the late 19c. to foster ideas of benevolent, liberal authority to counter nationalism in the multi-national Hapsburg Empire. While the Emperor and his class saw themselves as benevolent stewards, nationalism swept any soothing attempts to placate and maintain the old order into the dust-bin of history.
In Virginia, after the Civil War, a more precise notion of property was promulgated, and privileges were distributed according to new schemes.
In Jefferson's time, oppression had gotten so bad in France, that the notion of "natural right" or the permutation "divine right," effectively yielding a cruel "perpetual right" with no attendant benevolent stewardship, finally exploded into an orgy of blood and retribution emerging as "liberty, fraternity and equality" - whatever they might have meant by that in the decades of war that followed. Perhaps this explosion did not reach his awareness fully since he had participated in an explosion of his own and had cast off unwelcome masters. Yet the idea that property "belongs to all men equally and in common" did get a life of its own that played out in the urban setting of European cities for many many decades to come.
With a clear conscience the American landowner, lord of all he sees can honestly say: "By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it." [op. cit.] Perhaps history has proven him right: his own palace and most of the palaces of the aristocrats in Europe are now a public trust eking out a precarious existence on the income from tickets purchased by tourists and public grants to fix the roof. Yet, many bodies floated down the rivers before the palaces reverted to the public.
But let me return to IP. Jefferson values ideas greatly, but he fails to grasp the role ideas will have in the society for which he is laying the foundation. He believes that he is in a period "late in the progress of society" which I read to mean that his society was mature. Yet it would grow from agrarian roots to industrial growth, runaway growth, to post-industrial globalism. "Late" was still to come; these were "early" ideas; our ideas may be early still.
"It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property." [ibid.]The author in a garret in London, Paris or New York did indeed work for a meager income from exclusive rights if they were not appropriated by the publisher or circumvented by the printer. No doubt the class of landowner in the late 19c. might still believe with Jefferson:
"That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation." [ibid.]My own view and my expectations for my ideas echo Jefferson's. Only through free, untrammeled use will ideas grow. My move from literature to computing was prompted in part by the desire to escape the secretive, suspicious world of scholarship where it was thought important to hide one's work till it was finished, to the open, unrestricted exchange of ideas and mutual assistance I experienced when the computer age dawned on me in the 70's. The climate may be different now in both fields.
That said, the idealism having been given voice and echo, Jefferson did assert the right of the collective to grant rights; not rights that are claimed with sword and gun as the agents of nature, or innate superiority conferred by God, but rights that are given by an advanced society.
"Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody." [ibid.]They key is to strike a balance between the exclusive right to prosper from written expression and the eventual release of the ideas from exclusive appropriation to the public for instruction. When I try to lean on Jefferson it is to argue for a balance between the right to exclusivity and the right to copy.
Perhaps Jefferson is drawing lessons from the European experience, perhaps he is anticipating industrialization. The argument is more formal than substantive. Jefferson still governed; yet he did not want to base the legitimization for government on the ideas that had been used in the past for that task. The French Revolution, for all the havoc it created could yield only a new Emperor and a new dynasty and new institutions that reek of elitism and exclusivity to this day. The Founders had the room and the leisure to let aristocratic conceptions mature into a system of adaptable rule of law. In any case, for whatever reason, Jefferson mediated between his own ideas and the political reality, Clause 1,8,8 stands and he testifies in the last paragraph [op. cit.] that he is working toward mature rules.
ITEM: The question of orphans came up in 1823 in Willam Rawle's commentary on the Constitution.
See:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s13.html
The argument is legal, what else from a Philadelphia lawyer, somewhat lacking in substance and elaboration, but still indicative of what the Founders were thinking. The question is: what to do should a living author not renew the copyright for another 14 years. In common law one could presume the renewal would be automatic, no formalism could abridge a right. Yet if the right were granted by the collective, I speculate, rules requiring formal application can be enforced. Hence the irrevocable reversion of 85% of pre-1964 copyrights to the public domain. Of course in 1992, Congress put an end to this question.
To sum up - the wall was built. Despite Jefferson's effusions on ideas lighting up the globe, his notion that the collective can make the rules prevailed. Well into the 19c., there were voices claiming that common law superseded the constitution and vice versa. To the superficial meander through wiki, the question has become moot because much of the impetus for the distinction has been lost. Congress has piled act upon act and there are now statues for anything and everything. My apologies to the experts.
The inflation of the wall of copyright from 14 years and maybe 14 more to life plus 70 cannot be accepted as a reasonable evolution of the statutory rule of law. Something went wrong. That Information Architecture should come in conflict with animation characters is a sign of wonky-wonky logic with a major shimmy. No doubt lawyers can make it work for them, but it is becoming an embarrassment to thinking with integrity about electronic representation of knowledge.
Of course, I once had a professor of literature who assured me that there was nothing worth reading (of primary texts) after 1832, the death of Goethe. I believed him and still do even though I wrote my dissertation in the 20th c. Congress may temporarily force us into the manicured hands of dead white men.
