When the United States was founded, we began to consider our own copyright regime. The founders of the United States were actually a little bit ambivalent about copyright. It is a monopoly power. It's an exclusive right over a particular work, and we tend to be suspicious of monopoly power. But, ultimately, the founder's decided that the incentive that was provided to people to write by their ability to have exclusive rights, and therefore to make more money from their writings. Was worth the risk. However, as you can see from the quote from the United States Constitution here, they specified in the Constitution, that copyright must be only for a limited time. In other words, they took what parliament had done in Donaldson vs Beckett to create the public domain. And made it part of the requirement of our law. So, what we have in the Constitution, in this quotation here, is one of the sections where the Constitution tells us what powers Congress has, what kinds of laws Congress is allowed to pass. Copyright and patent laws are two of those particular grants of power. And they're embodied in this phrase. To promote the Progress of Science and useful Arts, by securing for limited Times, that's the public domain, to Authors and Inventors, copyright and patent, the exclusive Right in their respective Writings and Discoveries. So that's the foundation of copyright law in the United States. One of the things that's interesting about this is that it is the only grant of congressional power in the Constitution that actually specifies a purpose. Copyright is there to promote the progress of science and useful arts. And we could argue, if it stopped doing that, then, perhaps, copyright law would become unconstitutional. Because the constitution tells us that it must do a particular thing. In America, the history of copyright has been a history of expansion. Both in terms of what's protected, as you can see in 1790, only maps, charts and books were protected. Now music, audio visual works, movies, architecture, dance, all kinds of things are protected by copyright and in 1790, we had the same 28 year term that Britain had. We now have a maximum term of life of the author plus 70 years. So, you can see in those first three American copyright laws, you can see the beginnings of this expansion of copyright protection. Copyright also is unique in the United States because of its relationship with the guarantee of free speech in our First Amendment. Copyright, as I told you, was born as a tool of censorship or at least of control. But in the United States our Constitution contains a guarantee of free expression and freedom of the press. And it was felt that copyright could be an impediment to those guarantees and so very early in its history it became necessary to define some exceptions to the exclusive rights that are granted by copyright. The most important of those was defined in a case called Folsom versus Marsh in 1841, when Justice Story created what we call today fair use, and fair use is a vital part of the copyright system, especially when we see copyright as the Supreme Court has told us we should, as an engine of free expression. In other words, copyright is supposed to be a medium to encourage free expression rather than an impediment to it, and fair use is an important part of that. [COUGH] Excuse me. In the 1976 Copyright Act, which is our current law, three really important changes were made. Copyright term was adjusted. It became longer, but it was also counted differently. Instead of a term of years. It became life of the author, plus. Originally it was life of the author, plus 50 years and then we expanded it to 70 years. We also made copyright protection completely automatic. There is no notice required. That little C, in the circle, you don't have to have it anymore. Registration isn't required. Technically it's still required to deposit a copy of the work. But, many people don't do that and it doesn't interfere with copyright protection. And then finally we began to fully protect unpublished works. Even though things hadn't been sent through a publisher. Hadn't been printed and made available to customers. We still gave copyright protection. Even to unpublished letters. If it's creative enough, your grocery list, or your laundry list could have protection nowadays. Those three changes that were made in the 1976 Copyright Act were very important. We made those changes in anticipation of joining an international agreement called the Berne Convention and copyright. We had not joined it for a 100 years in the United States. But finally at the end of the 20th century we began to think it would be a good idea to be part of this international agreement. And one of the things that was required was that we do away with formalities. And that we adjust the copyright term to at least life of the author plus 50. So that's the reason behind these three really significant changes in the copyright law. If you look at this chart, you don't need to see the details very well. But it helps illustrate how much we've increased the term of protection. In 1790, the first copyright law in the United States, the maximum term of protection was 28 years. Now it's well over 100 years. So the term of protection has gotten longer. And we've protected a lot more stuff including all of that unpublished stuff. The results of that is that we have this burgeoning problem of orphan works. And an orphan work is a work where you know it's still in copyright protection. But you can't find the person who owns the copyright. Often because the copyright. Has lasted for 70 years after the death of the author. The author's family doesn't even know that they have inherited copyrights. That's one of the difficulties with the changes that we've made recently in our copyright law. So what's changed more recently? Well obviously digital communications have posed increasing challenges for copyright law. It's very easy to make copies very fast, now. Those copies are instantaneous high quality and can be distributed to millions of people with the touch of a button. That change in technology has really posed a problem. For our copyright law that wasn't anticipated until, well, not even in 1976. Copyright law has always been a creature of printing and print technology and publishing and the digital environment has really challenged the very structure really of our copyright law. So in education, and especially in the digital environment, copyright is part of almost everything we do. We teach online, we use online resources, we have online components for our traditional courses; even for our face to face courses. We may find resources online, and they may well be orphan resources. That is, we suspect that they're protected by copyright. But we don't know who to contact. Ownership is very hard to disentangle now. Partly because there are multiple authors. So we have to account for the contributions of different people to the creation of a single work. Most importantly, in the digital environment fair use is more important than ever, because fair use is the one part of our copyright law that is adaptable to new technologies. Without it. We would not really have any exception to the exclusive rights to the monopoly that was capable of addressing situations that could not have been anticipated in 1976, situations involving the internet and other kinds of digital communications. So we'll get to fair use at the very end of this course. But please keep in mind how important it is and hopefully some of this background will help you as I said, put together the pieces, that we're going to cover over this week and for the next four weeks. We'll look forward to talking to you more later.
