Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity [Hardcover]

This book is great for beginners as well as some pros on this matter. It seemed like a perfect blend of what Noel Carroll calls in his "A Philosophy of Mass Art," mass art and avant-garde art - it is written in a style that the mass can understand (which defines mass art) yet challenges convential thinking and equips the reader with enough background knowledge early off to understand the rest of the book (avant-garde art usually doesn't even bother to give background knowledge as it is geared towards a certain field, not the masses).

Siva Vaidhyanathan did a masterful research in law and the history of law as he uncovers a bright story concerning intellectual property even from the time of the founding fathers of this nation. If you are a beginner in the field of IP, I suggest this book to be the first one that you read as it is an excellent base.

Vaidhyanathan sets out his own objectives thus:

"This book has three goals. The first is to trace the development of American copyright law though the twentieth century. . . . The second goal is to succinctly and clearly outline the principles of copyright while describing the alarming erosion of the notion that copyright should protect specific expressions but not the ideas that lie beneath the expressions. The third and most important purpose of this book is to argue that American culture and politics would function better under a system that guarantees 'thin' copyright protection -- just enough protection to encourage creativity, yet limited so that emerging artists, scholars, writers, and students can enjoy a right public domain and broad 'fair use' of copyrighted material."

I believe that he succeeds on these terms. Even better, the book is very well written as prose, which we'd expect from a creative academic with long experience in print journalism. (The book is also full of fascinating tidbits. Did you know that Samuel Clemens would spend a weekend in Canada to register each of his books there? He did it to fortify his copyright protection throughout the Commonwealth.)

The chapters proceed more or less chronologically as Vaidhyanathan moves from early conceptions of copyright; through the careers of Mark Twain and D. W. Griffith as key users and developers of evolving notions of copyright; through the development of the modern recording industry, and its tangles with rap music in the past 25 years; and on into what I might call the copyright-command-and-control battles of the Internet era.

Along the way, he shows how we moved away from an older ideal of "thin" copyrights towards the modern regime of "thick" ones. In particular, he's strong in making the case that copyrights used to be -- and should be still -- the legal codification of a sort of utilitarian policy bargain. Vaidhyanathan drives home this interpretation time and again:

"Significantly, the founders, whether enamored of the virtuous potential of copyright as Washington was, enchanted by the machinery of incentive as Madison was, or alarmed by the threat of concentrated power as Jefferson was, did not argue for copyrights or patents as 'property.' Copyright was a matter of policy, of a bargain among the state, its authors, and its citizens." (page 23)

"The law [the first American copyright statute, enacted in Connecticut in 1783] also required that the author 'furnish the Public with sufficient Editions,' such that an author could not benefit from the protection of the law while restricting access to his work. Such a balance, a tradeoff, between public good and private reward served as the germinal idea of American copyright . . ." (page 44)

"Property rights in America are traditionally a matter of convention and agreement, and not, as the judge in [a case he's just been discussing] asserted, a matter of divine decree or 'natural' law." (page 59)

Throughout the book, Vaidhyanathan is an ardent proponent of a system of "thin" copyrights. He argues such a regime would be more reflective of U.S. legal history (as demonstrated in the quotation above about the Founders); allow a better balance between private commercial interests and broader societal interests; and promotes both protection for the established artist -- for a limited time -- and then the availability of our common cultural heritage to emerging artists.

(In making this last argument, he covers some fascinating ground, particularly in contrasting the typically linear nature of European [and European-American] creativity and the typically circular nature of African [and Caribbean, and African-American] creativity. While his absorbing discussions of the creativity embodied in Delta Blues, reggae, and rap music effectively demonstrate the latter point, I would have liked him to give more credit to the great classical-music tradition of one composer offering arrangements of or variations upon the work of another.)

Standing against this ideal of thin copyrights is the current corporation-dominated regime of thick copyrights and "intellectual property". While Vaidhyanathan sometimes shades toward stridency in his dicsussion of this, he's quite apt is assessing its major ills. The system has progressively done away with the "bargain" discussed above, in favor of making ideas, and not merely their expressions, the "property" of owners, and especially of owners who have the lawyerly firepower to back up their claims. Such a regime tends to ignore or suppress the broader societal interests served by balanced principles of fair use, in favor of private commercial interests. And in general, the system promotes the haves while it ignores, chills, or actively bars the have-nots.

The new property-talk regime of thick copyrights is a relatively recent innovation -- it really picked up steam in the 1970s -- that has been immensely ramified by the growth of computer technology and networked sytems. Copyright holders -- especially large commercial interests -- now have the technology to enforce copyrights much more rigorously. And, as Vaidhyanathan rightly points out, wrongheaded and antidemocratic legislation like the Digital Millennium Copyright Act (DMCA) puts too much of the police power behind such enforcement into the hands of the copyright holders themselves.

Fundamentally, Vaidhyanathan's got it right: ordinary citizens, newcomers, little people, and outsiders are getting the shaft at the expense of major corporations, the media Establishment, big wheels, and insiders. DMCA deserves to be opposed by clear-thinking citizens everywhere, and at some point we have to abandon the ridiculous prospect of extending copyrights ad infinitum. Though this book explicitly addresses the situation in the United States, folks beyond its borders should likewise heed its call to support better, freer, and fairer interpretations of copyright.