According to Siva Vaidhyanathan in his book "Copyrights and Copywrongs", United States copyright law and practices have a problem. This problem has been developing slowly over the history of American copyright, from the earliest British copyright laws to the latest amendment, the Sonny Bono Copyright Term Extension Act of 1998. The problem is the original goals of copyright have been left behind in the name of protecting and profiting from intellectual property. This threatens creativity and access to information. Vaidhyanathan attributes this to a breakdown of the idea/expression dichotomy that has traditionally existed in the realm of copyright.
American copyright law was based on a set of ethical assumptions and cultural habits. Copyright law was designed to reward hard work, recognize genius and creativity, ensure wide and easy access to information, and encourage experimentation in both art and commerce. Vaidhyanathan states that "copyright is the result of a wise utilitarian bargain". Limited monopolies are granted by the government to encourage creating new, original work by protecting that work from exploitation by others. After a set amount of time, that monopoly is lifted, placing the work in the public domain and allowing others to freely use that work.
Copyrights are intended to protect literary, artistic, musical, and computer-generated works for a limited period of time. They provide enough reward to encourage creativity. Copyrights grant an exclusive right to copy, sell, and perform a work of original authorship that has been fixed in a tangible medium.
Vaidhyanathan argues that in the last century, there has been a breakdown in the idea/expression dichotomy. According to traditional copyright rules, ideas cannot be copyrighted, but expressions of ideas can. For example, I can write a story about a mighty baseball player that at a clutch moment strikes-out at the bat. At worst, I could be accused of plagiarism, which is not illegal (though possibly unethical). If I were to write a story about a baseball player named Casey, though, I would probably be violating copyright. The story "Casey At Bat" is an expression of the idea I describe. My own story would be a different expression of the same idea, though enough fo the details would have to be different to confirm this under the scrutiny of a court case.
According to Vaidhyanathan, too much separation between idea and expression will stifle creativity because of lack of incentive to create. Similarly, too little separation will also stifle as transference of content from one medium to another justifies absurd levels of copyright protection. The trend in modern copyright law is a shift toward the latter. Vaidhyanathan states that 20th Century copyright law is about controling markets instead of fostering creativity. As the last century progressed and new case law and copyright law was developed, the split between ideas and expressions became clouded.
One example of the clouding of the split between ideas and expressions is found in music copyright. Federal courts ask two questions to determine whether a song infringes on the copyright for an earlier song. First, the plaintiff must show that the second composer had access to the first song. Also, the second song must show a "substantial similarity" to the first. This gague causes problems when used against artistic forms that reuse elements and tropes from other songs, such as in West African musical traditions. Also, this gague makes little or no space for performanced-based models of originality since contributions of style or delivery are excluded from consideration. The result of this is a limiting in the creative sources made available to artists and content developers.
Vaidhyanathan goes on to describe Paul Goldstein's idea of a Clestial Jukebox, where all content is available to anyone, but the means of access to that content is controled by the content providers. This allows for an economy based on individual usage and pay-per-view control. Basically, the public will have to get permission before accessing content, whether it be to purchase a copy of the content for personal use, parody, educational use, or critique. This creates corporate monopolies over content and information. Also, since the controlling technology must in some way keep track of what people are reading or listening to, privacy concerns emerge.
Laws like the Digital Millenium Copyright Act of 1998 (DMCA) are exensions of this idea. The DMCA prohibits the circumvention of any effective technological protection measure installed to restrict access to a copyrighted work. Also, the DMCA prohibits the manufacture of any device, composition of any program, or offering of any service that is designed to defeat technological protection measures. The Librarian of Congress is ordered to conduct rule-making hearings to judge the effects the law would have on non-infringing uses of copyrighted material, such as use for parody or educational use. The DMCA does allow certain uses such as reverse engineering, security testing, privacy protection, and encryption research, but these permitted activities are limited. Not textual changes are made to the fair use provisions of the Copyright Law, despite eliminating the possiblity of unauthorized access to protected materials for fair use purposes. Finally, limits are placed on the liability that on-line service providers might face if one of their clients were circumventing copyright protections or pirating content.
The consequenses of the DMCA are severe. The "first sale doctrine" is eroded significantly, since resale or redistribution of purchased work is inhibited by technological copyright controls. Also, the DMCA creates potentially unlimited monopolies through technological controls over content. This flies in the face of the idea of "securing for limited times" copyright protections and then allowing content to enter the public domain. Also, works that are already in the public domain can be recaptured and restricted by the same technology that is designed to protect only copyrighted material. Finally, the DMCA restricts the ability to parody or criticize work in exchange for access to that work though potential licensing agreements that operate outside established copyright law and are enforced by technology.
If future laws follow the trend continued by the DMCA, soon private corporations will severly limit the content available to the general public and how they might view that content. It is the hope of Vaidhyanathan that future legislation and case law will slow or reverse this trend so that the benefits of copyright are enjoyed by the general public and not just by the content providers.