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If trends in copyright law are beginning to baffle you, don't worry--be relieved. If you aren't confused, then you probably haven't thought about copyright deeply enough.

In publishing today, copyright is taking two wildly divergent paths. In literature and entertainment, copyright protections are growing stronger than ever, even when that means that corporate mediaopolies cling to information that some may argue reasonably belongs to the public. In scholarly literature, by contrast, publishers' copyrights are receiving increasing scorn from critics who see them as unholy relics of dying print media.

It's the battle between Mickey Mouse and laboratory mice.

The squabble has its roots in the U.S. Constition. Article 1, Section 8 states that, "The Congress shall have Power . . .To promote the Progress of Science and useful Arts, by securing for limited Times to Author and Inventors the exclusive Right to their respective Writings and Discoveries."

Here, as in so many things, the framers of the Constitution were wise. They recognized that to promote the public good, innovators needed exclusive rights, but that these should be "for limited times"--that is, just enough to provide reward for innovation, but not so much as to hinder its application for the general good.

Fast forward 200 years or so. The principle of copyright remains as sound as ever, but its application is less clear. For one thing, copyright holders are no longer humble "Author and Inventors" like, say, Ben Franklin toiling in his laboratory or print shop, but rather large media corporations. Does copyright today reward innovation, or does it serve to tighten the corporate stranglehold on intellectual property that rightfully belongs in the public domain?

Moreover, the Internet has made it at least technologically possible to give anyone, anywhere, anytime, access to all the world's knowledge. Is copyright inhibiting the spread of knowledge, progress in science, universal understanding--and perhaps world harmony and peace?

It may come as no surprise that different people take violently different answers to these questions. On one hand, The Copyright Term Extension Act of 1998—sometimes dismissively called Mickey Mouse Protection Act for the extended protection it gave to certain Disney works—extended copyright terms in the United States by 20 years. Before the act copyright would last for the life of the author plus 50 years, or 75 years for a corporately authored work. The act extended the terms to life of the author plus 70 years and 95 years, respectively.

The act provoked--and continues to provoke--attacks on major entertainment companies and their copyright practices. For example, the group Downhill Battle has proclaimed its effort to "break the major label monopoly of the record industry and put control back in the hands of musicians and fans." The group engages in act of civil disobedience, like secretly affixing to CDs in WalMart and Target stickers that say, "Buying this CD funds lawsuits against children and families"--presumably kids who engage in music filesharing.

Despite the defiance of activists, there has been little movement in rolling back lengthy copyright protections for works of literature and entertainment. No so in scholarly publishing, where there is an aggressive effort to jettison copyright in the name of the public welfare.

Here, the argument is made that the Web has made it possible, for the first time in history, to instantly share the results of medical and scientific research. Making research freely available is so important a public goal that it should trump any copyright protections, this argument goes. "The US Constitution says that copyright exists 'to promote the progress of science'," wrote one so-called open access proponent, Richard Stallman, in the journal Nature. "When copyright impedes the progress of science, science must push copyright out of the way."

Not all critics of publishers' copyrights in science and medicine go so far. Yet there is a clear trend to gnaw away at publishers' copyrights in the name of public welfare. For example, the Federal Research Public Access Act of 2006, introduced by Sen. John Cornyn (R-TX) and Sen. Joseph Lieberman (D-CT) requires federal agencies that fund over $100 million in annual external research to make electronic manuscripts of peer-reviewed journal articles stemming from their research publicly available via the Internet. That means that the federal government wants to require authors of papers copyrighted by scholarly journals to make early verisions of those papers freely available to the world, copyright be damned.

In other words, movies featuring Mickey Mouse, a character of considerable charm but no more public benefit than most rodents, gets extended copyright protection. By constrast, papers featuring laboratory mice, which scholarly publishers bring to publication to the benefit of science and medicine, get dwindling copyright protection.

If these protections appear backward, then you have begun to plunge into the muddy and conflicting currents in copyright.

Labels: publishing copyright scholarly

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