Traditional Copyright Law:  Preserving the Balance

Until the recent advent of laws such as the DMCA, copyright legislation traditionally served to balance copyright owners’ rights with consumer rights and public interest.  Also, copyright was a form of protection – not of criminalization – provided by the laws of the United States (Title 17, U.S. Code), serving to protect authors of “original works of authorship,” including artistic, dramatic, literary, musical, and certain intellectual works.  Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following [3]: 

(1) To reproduce the work in copies or phonorecords;

(2) To prepare derivative works based upon the work;

(3) To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

(5) To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

(6) In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

There are several limitations or exceptions to the exclusive rights granted to copyright owners.[ii]  The most notable exception is fair use of a copyrighted work:  “copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” [4].  The other key specification of copyright law is public domain of any copyrighted work once the copyright has expired.  Traditionally, copyright law intended to balance a copyright owner’s right with consumer rights and public interest.  With the passing of the DMCA and consideration of proposed acts such as the SSSCA, this balance is being thwarted.

The DMCA and the SSSCA are upsetting the balance between a copyright owner’s right with consumer rights and public interest that traditional copyright lawmakers worked so hard to establish.  In the RIAA’s and SDMI’s defense, the balance is against them in reality.  Even with the downfall of Napster, users can and do freely download music as well as other forms of entertainment, such as DVDs and ebooks, via alternative mechanisms, thereby violating copyright owners’ rights.  Musicians, artists, songwriters, and the rest of the music industry surely have a right to protect their respective copyrighted works.  However, it is not clear how laws such as the DMCA are a solution.  It seems that the DMCA was an immediate reaction whose implications were not carefully thought out, as opposed to a thoughtful way to handle a serious problem.  Furthermore, while the music industry is making determined attempts at new technologies, such as watermarking, that would serve to inhibit illegitimate copying of copyrighted works, such technologies can unfortunately be easily circumvented as demonstrated by Felten.  One of Felten’s closing remarks was “There has to be a new business model.”  In fact, this seems to be a better approach to a more proactive and effective solution.