Speculations on the Unknowable Future of Copyright

The Next Twenty Years

Copyright (c) 1995 Paul Schaffner
ALL RIGHTS RESERVED

Even if copying, publishing, deriving, using, performing, and displaying were to be governed in fact by the law by which they are governed in theory, I am not confident about being able to predict the future of that law. But the world of copyright practice is much larger than the law, its future influenced by everything from immigration patterns to religious enthusiasms, to say nothing of unpredictable technical innovations: to predict its future is an exercise in speculative fiction. Such unpredictable factors have been at play in the twenty years since the last major revision of U.S. Copyright Law, and should continue to mark the next twenty. The best that I can hope to do is point out some trends that seem likely to continue, that I fear will continue, or that I dare hope will continue. Some of the trends are at odds with each other; I cannot even guess at how the differences will be resolved.

• Moralizing protestations by all parties will continue ("user's rights," "intellectual property rights," "authorial rights"), even as the law will continue to command little respect except as a cloak, a tattered garment snatched at by all to cover the nakedness of their self-interest. In fact, the law will continue to say little about grand rights of any kind and will continue to have almost nothing to say about the dubious concept of "intellectual property," but will continue to be an eclectic list of statutory privileges creating a set of limited and regulated monopolies.
• I believe that the current law is unconstitutional and has grown progressively more so, especially in so far as it has expanded horizontally to include more works and classes of works (from the constitutionally sanctioned "writings" to photographs, sound recordings, computer code, and unpublished ephemera), and vertically to extend for longer and longer periods of time (from a constitutionally sanctioned termination of rights within the life of the author to now proposed life plus seventy years). Though there are some external reasons for some of the changes (technical changes, European precedents), the trend has been driven by the superior political power and plausibility of publishers and producers, who are able to portray copyright expansion as essential to their economic viability and (less often) their cultural vitality. This fundamental equation has been constant and seems likely to remain so: expect more severe penalties for infringment, and further expansion, not only by inclusion of new technologies as they appear, but also by erosion of first-sale rights, fair-use rights, the merger doctrine and the exclusion of useful designs, and perhaps also the more galling enumerated exemptions (e.g. reverse engineering, if the courts agree that that is currently exempt).
• This erosion will in many cases be accomplished through the systematic evasion of statutory rights by means of licensing and technical protections (per-use metering, copy-protection, etc.).
• Expect to see further harmonization of copyright, licensing, and enforcement procedures among at least those countries with the most at stake in the production of "intellectual properties," with ever stronger efforts to enforce the same on all countries. Like all cartels, the copyright cartel will continue to have renegades.
• It must be admitted that not all changes to the law in the past twenty years have belonged to the trend toward greater restriction. There has been a good deal of deliberate conservatism and legislative deference toward the courts. Expect this inertia to preserve much of the law in the same state in which we now see it, especially as regards mature media (e.g., books), and to resist some of the more radical new restrictions (e.g., the addition of a "public lending right" -- too radical by half). There have also been some limited movements towards liberalization, e.g. the 1992 fair-use amendment for unpublished materials (liberalizing for derivative authors, users, and publishers, restrictive for original creators) and the 1990 artists' rights act (liberalizing insofar as it created inalienable authorial rights not assumable by corporate copyright holders. Some sort of hedged "browsing" right would not be an inconceivable addition to the law in the next twenty years, since it has the support of long-engrained public habit.
• Though I would like to see it, I do not expect there to be any substantial rethinking of the copyright scheme in general, least of all in such a way as to recognize the non-monetary rewards that are at least as powerful as the monetary ones in promoting the creation of works that serve to promote science and the useful arts, or in such a way as to recognize the public good realizable, in an era of instant and cheap distribution, by moving works quickly into the public domain. We will not see a reversion of the copyright term to twenty or twenty-five years (my preference), or a full set of legislated authorial moral rights (the latter being simply too dangerous for the creators of expensive derivative works to tolerate).
• A more stringently guarded stock of copyrighted properties will nevertheless not go without competition, chiefly from two sources: (1) free or cheap materials, self-published, much of it awful, but some of it, in some fields, especially academic fields, quite competitive, even dominant. And (2) pirated materials, made readily available by inexpensive technical means (CD recorders, networks, whatever is current), and the political unpalatability of restricting those means once they become widespread and once their illegal use becomes habitual, as video and software recording now has become. The latter is to be hoped for, I think, though it cannot be counted on. Current legislation and litigation threatening (e.g.) the manufacture of decoding and protection-defeating devices, anonymous postings, and the common-carrier status of network-access providers all suggest the need to sign up more voters on the internet before the congress and the courts are able to shut it down! Why should piracy be encouraged? I agree with Esther Dyson that its effect (or rather the effect of the two factors combined: cheap generic self-published software and pirated software) has had a generally beneficial effect on the software industry. Though it has perhaps encouraged code bloat, complexity, and application integration (all things to be discouraged), it has also caused software prices to be quite low, in many cases essentially nil, driving companies to recoup costs through other means: service, installation, rapid upgrades, etc. It has not noticeably impeded the profitability or creativity of programming.
• More importantly, perhaps, the extended experience of networking will, by the end of twenty years, have introduced into a large segment of the population an acquaintance with shared or collective authorship--plagiarism as a cultural way of life--, and thus perhaps begun to create the conditions under which copyright, basically a system under which corporate entities exercise privileges legitimated by a myth of personal, individual, creative authorship, might lose its public legitimacy. This may especially be the case if the same experience has driven copyright owners into calling for yet more restrictive and (to this new public) unreasonable versions of the copyright scheme to be enacted.

As for librarians and "information professionals," they will always be, as they are now, on the front lines of the war over intellectual property, fighting for quality, access and affordability (if they represent users), or fighting for quality, control and return (if they represent producers or distributors), or just keeping their heads down between the lines.