Copyright law has become İompletely İrazy. Before we can understand how the copyright has fallen into the idea-stifling morass it is in today, we have to look at how the blamed thing came to be in the first place.

Conventional wisdom has it that our modern concept of intellectual property protection goes back to a British law enacted in 1710 called the Statute of Anne. There had been laws regulating the ownership of writings before the Statute of Anne, but those previous edicts had existed chiefly to prevent seditious or profane writings from reaching a mass audience. But with this new act, Britain established a number of interesting and novel ideas — for instance, that an author had the right of ownership over his writings; that it was the government's place to enforce and regulate that right; and that, in order that ideas might flow freely, the right had a time limit. (A copyright lasted only 14 years in those days, although an author or his licensee could renew the copyright for an additional 14 if he or she so wished.)

Although you will often hear the Statute of Anne cited as a means of protecting authors and facilitating discourse, in truth, even then, the real benefactors of the law were middle-men -- the publishers and distributors, to whom copyright was routinely licensed as a requirement of publication. It was publishers who lobbied Parliament for the law, and it was publishers, much more than authors, who saw great financial return from this first implementation of copyright.

Nevertheless, this notion of “protecting authors” and its implicit transformation of ideas into property was attractive to the drafters of the U.S. Constitution, which borrowed the notions inherent in the Statute of Anne when it authorized Congress to “promote the progress of science and useful arts by securing for limited times to authors the exclusive right to their respective writings.”

As a consequence, the U.S. adopted Britain's 28-year copyright duration for the express purpose of promoting the progress of “science and useful arts,” despite there never having been compelling evidence that, in the absence of the copyright, writers would cease to write. (In fact, since authors had busily set quill to parchment for centuries before copyright came along, there was ample reason to believe the contrary.)

This notion of “protecting authors” that they might write more has been further belied by every subsequent extension of copyright protection. Nowadays, thanks to the most recent revision of copyright law in 1998, a copyright protects a work for the life of the author plus 70 years (apparently to ensure that an author who has only been dead for 69 years will have incentive to keep writing).

Of course, once again, it is obvious the real beneficiaries of copyright's growing duration are the publishers and distributors — who are also, not coincidentally, the ones who have lobbied for every extension of copyright laws in American history. The case can be made that these middle-men deserved some protection in the past, when the technologies of distributing books, films and records, etc., demanded cash and manpower. But now that the internet has made distribution practically costless, and to a large extent made such middle-men obsolete, we are witness to astonishing perversions of copyright law that make a mockery of the effort to “promote science and useful arts.”

Prepare to peer at the pernicious peccancies of the publishers when we continue our look at copyright next week.

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