Borgman, D. (2000, Summer). Napster, mp3, and intellectual property in the public domain. S. Hamilton, MA: Center for Youth Studies.

OVERVIEW

Around the world the Internet is raising questions about ownership and public access. According to the United States Constitution (Article 1, Section 8) "Congress shall have power…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." Originally, "limited time" was set as 14 years. That has gradually been extended in the United States until in 1998 the Copyright Term Extension Act set 95 years—after their initial release—as the term of protection.

Jack Valenti, president of the Motion Picture Association of America would extend that term to forever. Most everyone agrees that authors of creative works have a right to proceeds during most of their lifetime. Many musicians and writers want a longer legacy provided their children. What Valenti is also fighting for is the right of corporations to profit—and they stand to gain the greater amount of long-term profits. One argument for their doing so is that it takes money to preserve original copies of movies that otherwise might decay and be lost forever.

Professor Lawrence Lessig and many of his associates at Harvard Law School disagree with Valenti, the artists, the movie and music industries. He argues against the longer term by saying, "…95 years is far more than the ‘limited time’ established by the US Constitution…You can’t incent a dead person…I believe in the right to hack (including breaking the codes and safeguards that protect new movies and other intellectual property)…The concept that the framers of the Constitution gave us is a rich public domain."

Between the opinions that intellectual property should be protected forever, on the one hand, and that every artistic work should be available to all immediately, on the other, there should be some middle ground.

Many school systems, small churches, and others are fighting the constitutionality of long terms which enrich wealthy industries and hinder public use of music scripts and movies. For example, small church choirs have been awaiting the release of sheet music to classic anthems whose release will now be delayed. The old fairy tale "Snow White and the Seven Dwarfs" is clearly out of copyright. Walt Disney took advantage of that fact and used the story for his 1930s movie. Should the movie, "Snow White," be in the public domain by now? "Mickey Mouse" was scheduled to be out of copyright by 2003. Under the 1998 extension, it won’t be until the 2040s.

Between the extreme opinions above: that intellectual property should be protected for its creators and corporate owners forever, on the one hand, and that there should be free and immediate access to all movies, music, literature, on the other, there must be a middle way.

The idea of the Internet is a democratizing of information, art, and science. Increasingly, government and business are subsidizing the placement of computers and internet service in poor schools and homes. Strong arguments can be made for access.

A moderate position argues that classics should be released in reasonable time (50 years?) and that current work should be previewed free and perhaps bought on the Internet for a reasonable price. Protection, especially of artists themselves, should be balanced with the need for a strong public domain.

QUESTIONS FOR REFLECTION AND DISCUSSION

1. Have you written or composed—or do you know someone who is trying to make a living in the creative arts? What kind of financial remuneration should go to such creators of intellectual property?
2. Have you downloaded any music or movies or ripped any CDs—used Napster or any of its equivalents? What rights do you think you and others should have to find creative art or intellectual property on the Web?
3. In the article above are you more with Valenti or Lessig? What examples on either side of this debate could you give?
4. If you were to get together with music artists and industry, or with legislators, what would you propose?

IMPLICATIONS

• The Internet is going to change the movie and music industry and especially the way their products are distributed.
• Just as the United States needs to go back and reexamine the evolution of its interpretations of the First Amendment (relation of church and state and free speech) and Second Amendment (the right of citizens to bear arms and form well-regulated militias), so we should study the evolution of copyright laws (Article 1, Section 8). We should consider, in this, the power of lobbies funded by rich corporations—as well as the influence and political giving of wealthy artists.
• The integrity of the Internet and control of reckless extremes are part of the equation.

Dean Borgman cCYS