The Sleeping Beauty Model of Copyright Law History:or "Invite all the Fairies."
(Based on readings by Jessica Litman)
Litman, J. (2001). Digital copyright. Amherst (N.Y.: Prometheus Books.
According to Litman, early American copyright law was formed on the principle of idea sharing--striking a balance between author and audience in terms of who will benefit from a new work. Congress set the law based on this principle. However, as 19th and 20th century American copyright concerns moved beyond the simplicity of print media, a tradition of heavy stakeholder influence on copyright law has emerged. Inventions that provided new ways to create and present works, such as the piano roll, photography, movies, broadcast radio, television, cable and the Internet, among others, created vacuums of copyright ambiguity. Prospective copyright holders hurried to ensure all vacuums would be filled with laws that would best protect their individual interests. Stakeholders gathered and agreed amongst themselves how to divide up copyrights to the mutual benefit of all attendees, and of no benefit at all to missing parties. One of the many drawbacks that can be found in this tradition is the damage that exclusion of interested stakeholders does to the cohesive formation of the law.
I like to think of this as the Sleeping Beauty Model. This is because I find Sleeping Beauty bright and colorful and familiar, as opposed to the confusing murkiness of copyright law history. Not because the model fits perfectly. But, let's try.
So, if all the industry faeries are not invited to give gifts to the copyright law baby before proceeding to congress, excluded faeries will be vengeful, angry, and combative, and will try to alter or block the agreed-upon set of conditions. Fairies include: Broadcasters, radio and phonograph manufacturers and motion picture theater owners, map publishers, writers, composers, sheet music publishers, print publishers, organized labor, photographers, movie studios, software companies, and many many more varieties. (Note -the public is not a fairy, and will not be invited. Actually, the public just falls asleep). Congress is the little ineffective fairy who might try to moderate end products before they become law. And the copyright law baby continues to get gift after gift from an endless sequence of fairies, until she turns into a 200 page Frankenstein--which is a whole different metaphor.
On p.46 Litman notes that "The battles that preceded the enactment of the 1909 act should have demonstrated to the participants that interests excluded from negotiations could effectively block legislation." However, despite past examples its flaws, the Sleeping Beauty Model of getting things done has extended throughout the 20th century, and into the 21st century. Litman discusses how this has caused the Balance principle envisioned by Congress to be co-opted by the Bargain metaphor, and then by the Incentive metaphor, and now moving into an Property Ownership metaphor (Litman, p.81) as corporate interests guide copyright law.
Note: I was able to use the 1899 drawing Sleeping Beauty by Henry Maynell Rheam because it is in the public domain, due to Mr. Reams's death over 70 years ago. Accessed from Wikimedia Commons
Some additional notes:
1717: U.S. Passes first copyright law(p.15)
1790: U.S. Passes first copyright statue (p.15)
Original principle: neither creator nor general public should get all the benefits coming from a new work. U.S. Copyright law based on model devised for print media
1909 Copyright Act (p.36) Exclusive performance rights for copyright holders of performance art works, like lectures, plays, music. Performance rights do not apply to books.
1912 Townsend Amendment (p. 41) to protect motion picture industry from the 1909 copyright act.
1910's Motion picture industry
1920's commercial radio broadcasting
1976 Copyright Act (p.36) Initiated in 1956. p.51
1992 Audio Home Recording Act (p.36)
1998: Digital Millennium Copyright Act (p.27). Shift towards paying on a per consumption basis
Copyright law vs. Information Policy. Copyright law attempts to restrict access to information, which is detrimental to information policies issues such as expanding affordable access.
Present: copyright protection is automatic and kicks in as soon as work is fixed in permanent tangible object. Can reproduce work in fixed copies, create adaptations, perform.
Quiz:
Which doctrine says that owner has no right to control distribution of a copy of a work after it is sold? Why are copyright owners of electronic material trying to find loopholes in this doctrine?
What loophole do the Lehman group green and white papers find to work around this doctrine?
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