Copyright is broken

In a world in which public domain speeches by government officials on government time are copyrighted, it’s hard to conclude anything other than that copyright is broken.

If it is not “fair use” to present film shot by CSPAN’s cameras of congresscritters at work for educational purposes and with attribution, copyright is broken.

Historically, the idea was that works were in the public domain unless Congress, exercising a right granted by the US Constitution in order “to promote the progress of science and useful arts,” grants a copyright, patent or trademark. In our age of corporate mass media, content producers like Disney have worked hard to reverse this equation, making restrictions on copying the default, with public domain occupying a rare and special status.

The consequences of that are far-reaching. I casually quoted the Constitution above, and I could sell materials which casually quote the Bible, Shakespeare, the Federalist Papers or Mark Twain. But if the same document contained an image of Mickey Mouse, or quoted the “I Have a Dream” speech, or a chunk of Porgy and Bess, I could be in trouble. The copyright on those works have been extended every time they get close to expiring. “Oh! Susannah” belongs to all Americans, not just Stephen Foster, and in any just world, so would Gershwin’s “Summertime.” That is what “public domain” means.

Fortunately, Congress is slowly moving to restore some balance. It won’t end the copyrights on century-old works, but the FAIR USE Act would at least clarify the right to quote from a copyrighted work for purposes of journalism, criticism, commentary and research. I can’t say whether that would put the Speaker’s use of CSPAN’s clips back in the clear, but I hope so.


  1. #1 Rob Knop
    February 28, 2007

    Hear hear! I’m 100% with you on this one.

    I will probably blog on this myself shortly as inspiration strikes.

    Have you read “Free Culture” by Lessig?


  2. #2 Josh
    March 1, 2007

    I haven’t read the book, but I’m a big fan of his blog and a lot of the work he’s done in court.

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