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Copyrights and Their (un)Intended Consequences

September 25, 2010

Lawrence Lessig’s Free Culture

Chapters 6-8: PROPERTY

Understanding copyrights and their  significance as property is an interesting topic to consider .  A copyright is a kind of property that can be owned and sold, and the law protects against its’ theft (Lessig 83).  We most often think of property in the tangible sense as something that can be seen and touched.  When we use the term copyright to apply it to less tangible properties, namely, ideas, defining the terms of a copyright become much more difficult.

A good example of this dilemma is spelled out in the introduction to the “Property” section of Lawrence Lessig’s book, Free Culture:

“I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don’t have it. But when I take the good idea you had to put a picnic table in the backyard…What is the thing I am taking then?” (Lessig 83)

Ideas released into the world are free. As so, why should anyone have to pay for  ideas?

STOP AND THINK: Most of us would think it would be silly to charge someone for using your idea to put a picnic table in their backyard. Other ideas, however, we find worthy of copyrighting and protecting. What makes the copyright of an idea legitimate or worthwhile?

Lessig uses his section on “Property” to dive into the idea of copyrighted material and its history. He answers: Where did it come from? What are its limits? How does it function in practice? (Lessig 84) Understanding the significance of the copyright and the path it has taken to arrive at its present day use helps the reader to better understand its intended purpose.

Copyright law began in 1710 when the British Parliament adopted the Statue of Anne, which stated that all published works would be given a copyright term of 14 years, renewable once if the author was still alive. Works already published by 1710 were given a single 21 years copyright term.  This Statute gave the author or “proprietor” of a book an exclusive right to print that book.  In addition, the bookseller had the rights to sell that book for the copyrighted term. Once the term expired, the work would be ‘free game’ to be published and sold by anyone.

The restrictions behind the copyright from its initial adoption the 1700s differ very much from what they have evolved into today.  It’s original intent of the copyright was simple to grant an exclusive right to print-no less, but also, no more (Lessig 88). It did not go beyond this protection to include more generally HOW a book could be used. What it did, was allow publishers to keep prices high and grant monopoly power to individual booksellers.

The original copyright law was not popular, especially during the Enlightenment when the importance of education and the spread of knowledge was held in high regard. Many believed the power that booksellers held over their monopoly of books was harming the spread of knowledge, which should be free and available to all.

Over the years, Parliament wrestled with copyright law and its terms.  Without going into the details, the important thing to know is that it was a never ending battle trying to find a solution to copyright law that would make everyone happy. One party, whether it be booksellers, publishers, readers, authors, etc., was always feeling shafted. In 1774, this struggle took a dramatic turn. For the first time in Aglo-American history, the legal control over some creative works expired, making some of the great classics (does Romeo and Juliet sound familiar?) free of legal restraint (Lessig 93). The reaction was again, double sided. “Pirate publishers” celebrated, while publishers with previous copyright ownership felt as though their profession and ability to provide for their families had been stripped from their rightful hands.

For the purposes of our discussion, we need not determine which party was in the right.  What we must recognize is this decision meant that “booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter free.” (94) (This term ‘free’ meaning free in the sense that the culture and its growth could no longer be controlled by a small group of publishers once a book’s copyright expired).


After laying the foundation of the history behind the copyright, Lessig jumps ahead to give two real-world examples of the copyright as we know it today and how it has evolved from its original context. I found these two stories to be very interesting, and certainly opened my eyes to just how complex (and to me, outrageously overregulated) copyright law has become. A quick briefing of the two examples provided in Chapters 7&8:

  1. To produce CD-ROM with a retrospective showcase of Clint Eastwood’s acting career, it took over one year to clear all of the rights for the films mentioned and used in the piece. Rights had to be cleared from everyone who appeared in the films, from director to stuntman, and from the artist’s whose music was used in the films. Every actor in each film had a claim to royalties for the reuse of that film.

STOP AND THINK: Where could we draw the line to reduce the complexity of copyright and royalty rights? Would it be fair to limit royalties for say, only the director of the film? Does the extra walking down the street in the scene deserve those same rights? Why or why not?

2. John Else, a filmmaker, was producing a documentary about Wagner’s Ring Cycle, with a focus on stagehands at the  San Francisco Opera.  One of the scenes Else shot was of two stagehands playing checkers during one of the opera’s performances. In the background of the shot,  a TV was on in the corner of the room playing an episode of The Simpsons.  The indirect shot of The Simpsons was about four and a half seconds long.  To make a long story short, in an attempt to get permission to use this 4.5 second clip, Else contacted The Simpsons creator, then the company that produces the program, and finally, Fox, the parent company of the producers.  Phone call after phone call lead to one final decision: Else would have to pay $10,000 to use that tiny, indirect clip of The Simpsons on his documentary.

Because it’s a free market, and the owner of a copyright can set whatever price they please.  “This practice shows just how far the law has come from its 18th century roots. The law was born as a shield to protect publisher’s profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not.” (Lessig 99)  What copyright usage has boiled down to is a process of paying lawyers, whether it be to defend your rights to get permission to use others’ rights. “Therefore, for the law-abiding sorts, a wealth of creativity is never made” because of the cost of clearing rights is so high (106).

In today’s culture, the function of copyright law is more complex than ever. “We live in a ‘cut-and-paste culture’ enabled by technology. Technology means we can now do amazing things easily; but we cant do them legally.” (105) Creativity and new forms of art are being stunted by copyright laws.

This argument over copyright protection (and whether it is BENEFICIAL or HARMFUL) is really interesting to me. I am looking forward to Monday’s class so we can talk about this! =)

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

-Thomas Jefferson

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