What should an educated researcher know about the law, in addition to what it allows and forbids her to do? For one thing, it is worth knowing how the law has changed over time, and how it is likely to change (if at all) in the near future.
UK's 1709 Statute of Anne
The most prominent trend in the copyright law since its inception in the UK’s Statute of Anne in 1709 is the explosive growth in its scope, both in terms of the number of things it covers and in the extent of protection offered to covered works. The US’s first Copyright Act, passed in 1790 and (ironically) mostly a cut-and-paste of the UK law, was a fairly simple and narrow protection for books, maps, and charts, which was difficult to obtain and usually expired within the author’s lifetime. Even as recently as 1961, according to a study by the Copyright Office, most works rose into the public domain after an initial term of 28 years of protection. For almost two centuries, US copyright terms lasted less than 30 years.
Now the law sprawls across hundreds of pages of detailed provisions, covers a wide variety of works (from books to sculpture to software), attaches automatically at the moment a work is created, and usually endures for decades after the author’s death. This expansion of copyright is in part the result of “harmonization” with the laws of other countries, who have generally been more protective of authors’ rights than the US. The growth of the US creative industries relative to those in the rest of the world is another likely contributor to copyright’s expansion. When the US was a developing country best served by wide access to British and other creative works, our copyright laws were relatively lax. Once we became a world power whose copyright industries relied on strong protection at home and abroad, the US took steps to make copyright longer, stronger, and easier to obtain.
Because copyright law is so complex, and it has traditionally effected a relatively narrow group of core interest groups (authors, publishers, record labels, and film studios on one side, and educational groups on the other), the law has been made primarily by consensus among interested parties, which Congress subsequently blesses and adopts as law. Now, with copyright the subject of intense debate amongst a broader group of stakeholders (the aforementioned content industries and educational groups, plus powerful internet and technology companies and an increasingly active and engaged community of Internet users), Congress is even more apt to stand back and wait for consensus to emerge before changing the law. Prospects for sweeping legislative reform favoring the public interest are therefore quite dim. Private arrangements like YouTube’s ContentID and modest reforms to favor business are the most likely modes of copyright reform so long as this dynamic dominates in Washington.
Speaking of private arrangements, the other major development effecting copyright law over the last few decades is the rise of licensed content. While the copyright law provides a somewhat balanced set of default rules to govern copyright holders and owners of copies of protected works, nowadays many transactions involving copyrighted works are governed by private legal arrangements called licenses. These binding contracts governing access to and use of protected works can change the rights of distributors and users in dramatic ways. Libraries provide huge swaths of academic material to their users subject to license agreements. Electronic journal content, for example, is governed by complex agreements between the publisher and the university describing who can access journal articles and what can be done with them. These agreements can provide substantially more rights to users than might exist under ordinary copyright law - to share full text with students beyond the limits of fair use, for example—but they can also constrict rights that might apply in the absence of a contract—to ingest large numbers of articles into a database for text-mining purposes, for example. These days the private law of contracts is just as important as the public law of copyright in determining the rights of authors and the public.
Contribution from Brandon Butler
