Friends,

The problem of copyright is confusing and often vexed. It is difficult
today because new technology permits us to publish and share material
that is actually or potentially subject to copyright law more easily
than ever in the past. I agree with many of the notes posted here on the
importance of sharing information – and I agree that publishers often
abuse their copyright control in inappropriate and unfair ways.

Nevertheless, there are two issues where a bit of reflection on the
history and reality of copyright will shed light. First, there is too
little understanding of the concept of fair use for scholarly and
scientific purposes and for study. Many of the problems that seem to
prevent use of material evaporate swiftly with proper application of
fair use. Second, there is too little understanding of the actual
history and nature of copyright and copyright law.

Different historical paths and legal regimes have very different effects
on the different ways that copyright came into being. There is
confusion, for example, about public domain as the general state prior
to copyright. This is not the case. In England and many European
nations, publishing rights were vested in the crown prior to copyright.
These notes are essentially a discussion of copyright in the English and
American legal systems.

In the early days of book production, there were no publishing firms as
we know them today. Each printer was a publisher, and any printer who
could get material as often free to publish it, providing that he (it
was always a he) operated a licensed press. 

The right to print – that is, the royal license to own and operate a
printing press – was effectively the right to own and control that which
one published. The printer – that is, the publisher – and not the author
had the right to sell and derive all profit from the work. A printer
might pay an author to write the work, but from that point on, it
effectively belonged to the printer. There were only a few exceptions –
the Bible, for example, was licensed by the crown to Oxford University
Press, and Bible sales and royalties have been a cornerstone of the
Press and its business structure ever since. 

The lack of copyright was a great problem to many authors. This became
especially difficult in the early days of mechanical newspaper
production. Charles Dickens wrote his novels for newspaper serial
publication. While he made a good living, the majority of his income was
effectively lost to pirate copies of his novels as chapters spread
around the world to unlicensed newspaper publishers.

The law of copyright is a specific form of property law, and copyright
is a property right. Property rights are all rights established by law
to govern the ownership, and control of property, including the right to
manage and benefit from the property.

Property is defined as something owned or possessed to which a person or
business has legal title. Ownership is the right to possess, enjoy, or
dispose of it. Property includes real estate and temporary or movable
things other than real estate. The central property rights that affect
media are intellectual property rights. This involves copyright control
over media content ands the copyright or patent rights governing such
intangibles as software, operating systems, or business processes, as
well as trademarks.

The concept of property rights goes back to antiquity. Modern property
law began in the civil law of ancient Rome and the common law of
medieval England. Laws distinguishing kinds and varieties of property
rights date back to the earliest times, but intellectual property law
only began in 1474 with the first patent law in Venice. The first
copyright law was established in England in 1709. 

While physical goods were protected by physical custody, intellectual
property required different forms of protection. The ideas, formulas, or
processes that constitute intellectual property can be used by anyone
who gains access to their contents. Intelldistinguish between legitimate and illegitimate uses, and today’s law
distinguishes between theft and proper acquisition. Before these laws
existed, the concept of theft applied only to physical goods. Using
stolen intellectual property to increase the value of legal physical
goods was legal when secrecy was the only protection available. A firm’s
competitors could legally use the firm’s own intellectual property to
compete against it. 

A manufacturer able to copy a process or a formula could use it. A
printer who acquired an unprotected text or image was free to publish
it. Anyone able to reach a market with goods or services based on
unprotected intellectual property could derive the entire benefit of
work that others had developed while returning no profit to the creator.
Intellectual property laws secured the legitimate interests of creators
in the fruits of their work.

Intellectual property is the central cost in most new media. Products
costing millions of dollars to create can be copied and distributed on a
CD costing pennies. With the Internet, even the cost of a disk vanishes
with the free distribution of illegal shareware.

Computers and media convergence gives powerful new importance to
intellectual property rights when software enables a computer to emulate
hundreds of other machines. When media content is digital code, the
greatest creation and the least are subject to the same constraints. The
growing use of code to create physical artifacts in distributed
manufacturing networks means that the only coded instructions
differentiate products. Years of work may be transmitted in
microseconds. Intellectual property rights make rational investment
decisions possible. Without them, there would be no capital investments,
increasingly fewer entrepreneurs, and a less innovative society.

Intellectual property laws do more than protect the rights and interest
of a creator. The social basis of intellectual property law is twofold.
By protecting the creation of inventors or authors, patent and copyright
laws secure to creators the legitimate interest in their property. The
larger social justification of this protection is the value of discovery
and invention to societies and nations. By making it possible for
inventors or authors to benefit from their investment of work through
exclusive control of their creations, intellectual property laws
encourage intellectual investment.

Modern intellectual property refers to creations of the mind. These
include inventions, writings, works of art, and music that form the
content of media, as well as the symbols, names, images, and designs
used in business.

The media world includes two main minds of intellectual property. The
first is industrial property. Patents protect inventions. Trademarks,
service marks, and origin marks protect reputation and exclusive right
of production and sale. Industrial designs cover look and feel, and
unique physical attributes. 

The second form governs the literary, musical, and artistic content of
such works as books, magazines, Web sites, plays, films, and musical
works, as well as artistic works and architectures. Rights of
performance, broadcast and publication are linked to copyright control.

Intellectual property rights are a vital form of capital in the
knowledge economy. Protecting those rights is itself a form of social
capital that contributes to the wealth of nations.

The problem we face now is the legal power and scale that permits
publishers to manage increasingly large domains of publishing –
expanding the domain article by article as the price of publication.

The best general book on copyright is by lawyer and writer Paul
Goldstein, now available in a new edition at address some of the
challenges and problems that were not as evident in 1995 when he wrote
the first edition. The book is titled Copyright’s Highway: From
Gutenberg to the Celestial Jukebox

There are several ways around copyright – including open access,
different kinds of copylelicenses that govern journals such as the International Journal of
Design. Many publishers permit different kinds of self-archiving or
university-based archiving of next-to-last version and even published
versions, while others also grant authors the right to reprint their own
articles in anthologies of their own work.

At the same time, we authors also benefit in different ways from current
systems. On the one hand, we do not like the fact that a prestigious
journal controls the rights to our work. On the other, we – and our
universities – benefit from the continuous, long-term investment that
prestigious publishers make in marketing and publicizing prestigious
journals. On the third hand, the fact remains that we – and our
universities – actually subsidize these journals given the fact that the
investment we make in doing the research, writing the articles, editing
and reviewing the journals is probably larger than the investment
publishers make in printing, publishing, and archiving. 

Moving from hands to feet, of course, universities and university
libraries COULD decide to save the money we spend on journal
subscriptions if we could agree to shift to a web-based, archive-based
publishing regime where universities made and supported the long-term
investments these require. But then, that would put universities back in
the publishing businesses they have been trying to exit.

My guess is that if this were to happen, a moment would come when
traditional journal publishers would lose enough money that they’d have
to liquidate their holdings by selling their rights and properties to a
university consortium. This, in turn, would create as many problems as
it might solve.

Today’s technology provides intriguing opportunities. To make use of
these opportunities, we must rethink what we ourselves want as authors –
and what we are willing to trade in exchange for the larger social good
we create in shifting from the copyright conventions on which we – and
our universities – have long relied. 

Below, you’ll find some sources and resources on intellectual property
rights and copyright. I compiled this back at the start of the decade
while working on some articles for the Encyclopedia of New Media edited
by Steve Jones. Some of these sources give you access to outstanding
collections of research, articles, and information on these topics – as
well as lining you to appropriate web sites concerning the law of
copyright and related government web sites.

In the next post, I will provide a copyright article on copyleft that I
wrote for the Encyclopedia of New Media. I have not asked permission,
but I justify my breach of law by hoping you’ll want your library to
order the book so you can learn more about the intersection of media and
ideas.

Best regards,

Ken

Ken Friedman, PhD, DSc (hc), FDRS
Professor
Dean

Swinburne Design
Swinburne University of Technology
Melbourne, Australia

Telephone +61 3 9214 6755 
www.swinburne.edu.au/design

--

Bibliography

Boston College Law School. Intellectual Property and Technology Forum at
Boston College Law School. [Online resource and journal. Special focus
on technology.] http://www.bc.edu/bc_org/avp/law/st_org/iptf/ 4 June
2001.

Canadian Intellectual Property Office. [Online resource and interactive
learning center.] http://cipo.gc.ca/ 4 June 2001.

Electronic Freedoms Foundation. EFF “Intellectual Property Online:
Patent, Trademark, Copyright” Archive. [Online resource center.]
http://www.eff.org/pub/Intellectual_property/ 5 June 2001.

Field, Thomas G., Jr. “So You Have An Idea.” Franklin Pierce Law Center.
http://www.fplc.edu/tfield/iDea.htm 7 June 2001.

Franklin Pierce Law Center. The IP Mall. [Online resource center.]
http://www.ipmall.fplc.edu/ 6 June 2001.

Intellectual Property: Home. [Government-backed home of UK Intellectual
Property on the Internet.] http://www.intellectual-property.gov.uk/ 2
June 2001.

Intellectual Property Rights Help Desk. [Europeanhttp://www.ipr-helpdesk.org/t_en/home.asp 6 June 2001.

WIPO – World Intellectual Property Organization.
http://www.wipo.org/ 6 June 2001.


Further Reading

Aaker, David A. Managing Brand Equity. New York, Free Press, 1991.

Arden, Thomas P. Protection of Nontraditional Trademarks Trademark
Rights in Sounds, Scents, Colors, Motions, and Product Designs in the
U.S. New York: International Trademark Association, 2000.

Bryer, Lanning G. and Reese Taylor, Editors. 2000 Trademark Handbook US
and International, Vol. II. New York: International Trademark
Association, 2000.

Encycopedia Brittanica. “Property Law.”
http://www.britannica.com/eb/article?eu=117332 (8 June 2001) 

Fletcher, Anthony L. and David J. Kera, Editors. 2000 Trademark Handbook
US and International, Vol. I. New York: International Trademark
Association, 2000.

Imparato, Nicholas and Oren Harari. Jumping the Curve: Innovation and
Strageic Choice in an Age of Transition. San Francisco, California:
Jossey-Bass Inc, Publishers, 1994.

Imparato, Nicholas. Capital for Our Time: the Economic, Legal, and
Management Challenges of Intellectual Capital. Stanford, California:
Hoover Institution Press, 1999.

International Trademark Association (INTA). [Web site and online
resource center]. http://www.inta.org/ (5 June 2001).

Legal Information Institute. “GATT 1994 (1999-2000 ed.)” [GATT Treaty
1994 including the Agreement on Trade-Related Aspects of Intellectual
Property]. http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/GATT? (5
June 2001).

Legal Information Institute. “Trademark law: an overview.” [Web site and
online resource center].
http://www.law.cornell.edu/topics/trademark.html (5 June 2001).

National Conference of Commissioners on Uniform State Laws. Revised
Uniform Deceptive Trade Practices Act. 1966. [Available as online
document] http://www.law.upenn.edu/bll/ulc/fnact99/1920_69/rudtpa66.htm
(2 June 2001).

UK Patent Office. [Online resource center.] http://www.patent.gov.uk/
(25 May 2001)

United States Patent and Trademark Office. [Web site and online resource
center]. http://www.uspto.gov/ (5 June 2001).

United States Patent and Trademark Office. Intellectual Property and the
National Information Infrastructure. The Report of the Working Group on
Intellectual Property Rights.
http://www.uspto.gov/web/offices/com/doc/ipnii/ (8 June 2001)

Varian, Hal R. The Information Economy. The Economics of the Internet,
Information Goods, Intellectual Property and Related Issues Compiled by
Hal R. Varian. http://www.sims.berkeley.edu/resources/infoecon/
 (May 4 2000)