Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (review)

Groucho Marx toyed with the legal department at Warner Brothers studios in 1946 over the meaning of "exclusive rights" in the film Casablanca. Mark Twain testified before Congress in 1906 advocating stricter protection for the "exclusive rights" of authors under United States copyright law. Thomas Edison triggered a lawsuit in 1903 that examined the relationship of "exclusive rights" in existing copyright law to a new development in technology—the motion picture. Noah Webster persuaded Connecticut legislators in 1783 to enact a law entitled "Act for the encouragement of Literature and Genius." Such laws of "encouragement" provided the early legal foundation for granting "exclusive rights" in "intellectual property," beginning conceptually with English efforts in the 1500s to control the printing press and connecting functionally with laws enacted in the 1990s, such as the Digital Millennium Copyright Act and other efforts to control the use of information technology.

Copyright struggles are not new, but they are rich and often entertaining, much like author Siva Vaidhyanathan's work. Vaidhyanathan is a cultural historian and media studies scholar and assistant professor of Culture and Communication at New York University. His insight into modern challenges is perceptive and welcome in an evolving digital world.

Vaidhyanathan articulates concisely the principles supporting existing copyright laws and demonstrates clearly the influence that those principles can exert upon culture, history, and the flow of information. He captures in "great" historical moments the evolution of copyright when the likes of Twain and Marx become embroiled in "intellectual property" debates and echoes in "lesser" moments the outcome of those debates when individual users, such as blues musicians, rap artists, scholars, teachers, and others explore new ideas, new technologies, and create "new" works. The author identifies what it means to make a "new work" under existing legal principles and explains how those principles sometimes conflict directly with cultural traditions, finding ultimately that ignoring such differences reveals much about copyright and its underpinnings. Vaidhyanathan also argues compellingly throughout the book, sometimes subtly, sometimes forcefully, against continuing the public debate about copyright under the relatively modern rubric of "intellectual property," recognizing that "property rules" in the law and notions of ownership in the public sphere have infected and governed discussions of copyright for decades. This "property" focus has grown exceptionally problematic in what the author calls the "digital moment" and has led to increasingly restrictive copyright laws. The Digital Millennium Copyright Act of 1998, for instance, includes among its complex provisions language that "[p]rohibits the circumvention of any effective technological protection measure installed to restrict access to a copyrighted work" (p. 174). This property-based and legally sanctioned model of "locking" copyrighted works threatens to destroy the carefully articulated principles of "fair use" law in the United States by severely restricting general access to the range of copyrighted works. A fundamental condition of "fair use" is lawful access to copyrighted works. The likely elimination of "fair use" as a viable means to make lawful uses of copyrighted works in the absence of permission is one of the dominant "copywrongs" cited by Vaidhyanathan and the critical threat to creativity in the "digital moment." Vaidhyanathan ultimately proposes abandoning "property talk" in the copyright debate in favor of "forging intellectual policy" to "encourage creative expression without limiting the prospects for future creators" (p.12).

As copyright law grows progressively denser in the "digital moment," librarians face increasing challenges in making materials widely available. The interrelationship of copyright and the library likely offers little surprise to librarians and others in the academy confronting copyright dilemmas at every turn. What may come as great surprise is that understanding the principles of copyright is not only possible but also essential to influencing the debate on "forging intellectual policy" envisioned by Vaidhyanathan. Librarians bring to that debate a...