Just Another Word for Nothing Left to Lose?: Public Domains and Intellectual Property Law

The Future of Ideas: The Fate of the Commons in a Connected World . By Lawrence Lessig. New York: Random House, 2001. 352 pages. $30.00 (cloth). $15.00 (paper).

Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity . By Siva Vaidhyanathan. New York: New York University Press, 2001. 240 pages. $27.95 (cloth). $17.95 (paper).

Who Owns Academic Work? Battling for Control of Intellectual Property . By Corynne McSherry. Cambridge, Mass.: Harvard University Press, 2001. 275 pages. $29.95 (cloth). $16.95 (paper).

THE U.S. CONSTITUTION AUTHORIZES CONGRESS to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The words copyright and patent do not appear, and as Siva Vaidhyanathan and others have pointed out, this clause describes not a natural right but a mechanism to ensure and enrich the public good. The earliest copyright provisions in the United States guaranteed a fourteen-year term. Today, the interpretation of this constitutional article emphasizes "exclusive right" over "limited times": "writings and discoveries" are now called "intellectual property" and are behaving ever more like real property. The 1998 Sonny Bono Copyright Term Extension Act grants a copyright of life of the author plus seventy years, and the idea of "moral right" is expanding creators' or owners' control within and beyond that time period. In addition, the American legal tradition of "fair use," which permits for quotation and limited copying even while a work is covered by copyright for the purposes of criticism, research, or education, is being eroded by both technology and law. For example, music companies have been experimenting with CDs that cannot be copied, and the 1998 Digital Millenium Copyright Act forbids decoding, and therefore copying, of encrypted DVDs. The realm of patent is also growing: patents have notoriously been granted to cell lines and organisms, but, perhaps more importantly, they are now routinely granted to scientific discoveries previously deemed "basic" and therefore public. ¹

Perhaps in our time "the progress of science and useful arts" has slowed so much that Congress and its agencies have had to take aggressive measures to promote it? Perhaps musicians used to be able to make a decent living until kids started ripping their CDs? Perhaps authors and inventors are refusing to produce unless their great-grandchildren benefit from their work? Well, of course not, and Vaidhyanathan and Lawrence Lessig make various and vehement cases for the ways in which thinking about words or ideas as property is actually constraining creativity and innovation. Vaidhyanathan traces the expansion of American copyright from the late nineteenth century on, giving an especially interesting account of the complexities and absurdities raised by its application to film and music; Lessig presents the technical, conceptual, and regulatory history of the Internet and predicts a bleak future for what he calls "the most powerful and diverse spur to innovation of any in modern times" (5). Central to both these books is a defense of "fair use" as a fundamental principle of democracy rather than a hole that we now have the technology to plug. Corynne McSherry's book is less polemical than the other two, although no less sobering; beginning from the claim that "the university's traditional service mission, once construed as an obligation to provide tools for public decision-making, has been substantially redefined to mean the transfer of university research from academia to the market via patenting and licensing" (2), it shows how the university is increasingly turning to property as a concept with which to resolve disputes and determine value, where it once might have governed itself by rules of propriety.

Together, the three books provide many examples of creators, researchers, and scholars in all circles and fields choosing or being forced to contend with intellectual...