On April 20, a federal judge named Charles Pannell, Jr., barred Houghton Mifflin from publishing Alice Randall's novel The Wind Done Gone--a takeoff on Gone With the Wind from a slave's perspective--on the grounds that the book's borrowings of characters and scenes constitute "piracy." The ruling has prompted widespread critical derision and may well be overturned on appeal, but it ought to serve as a wake-up call about the trend toward excessive protection of intellectual property rights.
American law originally took a highly restrictive view of copyright. The Constitution authorizes Congress to give authors and inventors the "exclusive right" to their writings and discoveries, but it sets two important provisos: The rights are to be for "limited times," and the purpose of granting them is "to promote the progress of science and useful arts." Other provisions of the Constitution granting powers to Congress are silent as to purpose, but the copyright and patent clause explicitly says that the object is a public benefit. Or as a committee of Congress put it nearly a century ago, copyright is "not based upon any natural right that the author has in his writings ... but upon the ground that the welfare of the public will be served."
In 1790 the first copyright act set the length of protection at just 14 years, renewable for another 14 only if the author was still living. Interpreting the Constitution strictly, courts before the twentieth century refused copyright to much published matter, such as commercial information, which seemed to them neither science nor art. And they gave a narrow interpretation to the scope of copyright, denying one best-selling writer about Southern plantation life, Harriet Beecher Stowe, ownership of her fictional characters. Legislators and judges worried that copyright was a form of monopoly and that extending its duration and scope would mean restricting competition and the progress of knowledge.
These concerns have had waning influence during the past century, and in recent years the law has swung decisively in favor of broader intellectual property rights. Under the influence of intensive lobbying from the entertainment and information industries, Congress has expanded copyright with little thought to the effects on the public. By the time Margaret Mitchell published Gone With the Wind in 1936, the duration of copyright was up to 56 years; if it had been left unchanged, the book would be in the public domain today. But Congress has lengthened copyright 11 times in the past four decades, extending it to the author's lifetime plus 70 years. Judges are also increasingly likely to find infringement by those who abridge or borrow copyrighted material, although exceptions are allowed for "fair use," which is supposed to include parody and social commentary.
The same trend in favor of intellectual property claims has characterized patent law. As the technology writer James Gleick points out, no one used to be able to patent an idea, formula, or algorithm, but those limits to patentability no longer apply. While the Internet began as a pure public domain, recent years have seen an epidemic of patent claims to such marvels as Amazon.com one-click ordering, calendars kept on the Web, regular downloading of Web pages, and countless other features that threaten to erect roadblocks and tollbooths for future entrepreneurs. The Supreme Court saw the problem with this kind of process a century ago: "It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country."
Monopolies created by copyright raise the additional problem of curtailing free expression. As Judge Pannell's injunction against The Wind Done Gone ought to remind us, insofar as copyright conveys an exclusive right to publish, it may also convey a right to suppress. And when judges mistake parody for piracy, they turn copyright into a means of censorship. There can be little question that censorship is exactly what the Mitchell estate has in mind; it has authorized sequels to Gone With the Wind but insists that they do not portray miscegenation or homoeroticism.
Copyright monopolies are tolerable when they are limited in duration with broad exceptions for fair use, but when copyright is overextended, it threatens to hinder the very "progress of science and useful arts" that it is supposed to encourage. Members of Congress who have supported extensions of copyright, most recently in 1998, may consider it a victimless vote, but there are real costs to free inquiry. Cultural historians and documentary makers often find it impossible to get permission to use film, radio broadcasts, and other materials that, according to the copyright law in force at the time they were produced, would now be in the public domain. Because the sources disapprove of the message, writers frequently cannot obtain rights to use copyrighted materials even for the kind of social commentary that ought to qualify as fair use. In a case described in Lingua Franca in 1995, for example, a professor of American studies sought to use cartoons from the jazz monthly Down Beat to illustrate racism in big-band culture of the 1940s, but the magazine denied permission because the cartoons would make it "look bad."
On May 25, the 11th U.S. Circuit Court of Appeals hears the Wind Done Gone case. May the sequel to Judge Pannell's ruling be better than the original. It's time to put intellectual property rights in their place--below free expression and in line with the public benefit they were intended to promote.
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