January 8, 2000
The Artist's Friend Turned Enemy: A Backlash Against the Copyright
By PAUL LEWIS
hakespeare was great at writing plays but lousy at inventing
plots. So he borrowed them.
"Romeo and Juliet," for instance, was lifted from "The
Tragicall Historye of Romeus and Juliet," a 1562 translation of a
tale by Matteo Bandello, an Italian writer, soldier and monk.
"Julius Caesar" came out of Sir Thomas North's 1579 translation
of Plutarch's "Lives of Nobel Grecians and Romans."
Nobody sued for breach of copyright because there wasn't any. By
and large, the work of artists, inventors and scientists was
available for others to copy, improve or improvise on at will.
Of course, that hasn't been true the last couple of hundred
years. The idea of a copyright -- to establish personal ownership of
artworks, ideas, techniques and other intellectual property -- was
included in Article 1 of the U.S. Constitution. In 1989, Americans
took out 95,537 patents; in 1998 the number reached 147,521 and
72,395 more were issued to foreigners.
In 1998, Congress extended existing copyright protection for an
additional 20 years. Major beneficiaries were corporations like
Disney, whose copyright on Mickey Mouse, for example, was to expire
in 2004, but has now been extended.
Since then, criticism has been building in the academic world,
with many arguing that the growing privatization of knowledge will
threaten traditional intellectual and artistic freedoms.
"Industries and governments always favor strong intellectual
property protection; academics tend to favor weaker protection,"
said Robert P. Merges, an expert on intellectual property law at
the University of California at Berkeley. "If you took a poll of
American academics, you'd find most believe the knowledge grab has
gone too far."
This year, a group of Harvard University law professors asked
the U.S. District Court for the District of Columbia to declare the
Copyright Extension Act of 1998 unconstitutional. They argued that
it violated guarantees of free speech by reprivatizing works that
would otherwise have become public property. They also said it
breached a constitutional requirement that copyright laws "promote
the progress of science and useful arts."
"Extending a dead author's copyright won't encourage him to
write another book," said Lawrence Lessig, one of the Harvard
professors bringing the case. "Would Shakespeare have written
'Romeo and Juliet' if he had to get permission from Bandello and
The court rejected the argument, and the professors have
Patents and copyrights are essentially a monopoly that the
government grants for a limited time to encourage art and invention
by publicizing new discoveries while ensuring the authors a fair
In his book "Knowledge Diplomacy," a study of the
international diplomacy of intellectual property rights, Michael P.
Ryan, of Georgetown University, explains: "From its beginning, the
basic contract between the innovator and society has been that,
rather than safeguarding the know-how of an innovation through the
darkness of trade secrets, the innovator discloses the know-how in
exchange for a limited period of exclusivity to produce and
authorize to produce."
After World War II, he writes, "industrial diplomacy" created
global markets for manufactured goods. Today, that has been
replaced by "knowledge diplomacy," which is "institutionalizing
trade in products of invention and expression, offering innovators
the incentive to make their products for the global market."
While some of the fastest growth in copyrights has been in the
field of computer software (where the number of patents granted is
expected to increase to 22,500 for 1999 from 1,300 in 1990),
companies are increasingly patenting such innovations as methods of
Amazon.com, the online bookseller, for example, has patented its
"one click" sales system, allowing customers to place new orders
with a single press on the computer mouse. Priceline.com has done
the same for "reverse auctions," which enable buyers to name a
price and find a seller. Applications for such "business method"
patents have risen 70 percent this year, according to the U.S.
Patent and Trademark Office.
Critics say that the current laws on intellectual property may
shrink the pool of freely available artworks and ideas from which
artists and inventors often draw their inspiration.
In "Shamans, Software and Spleens: Law and the Construction of
the Information Society" (Harvard University Press), James Boyle
of American University argues that the present system
overemphasizes the rights of the romanticized author at the expense
of "the public domain necessary to give the magpie genius the raw
material she needs."
Already many universities and colleges have stopped providing
students with photocopied anthologies of learned articles as an
introduction to their courses. Those that still do may charge an
additional fee to cover royalties.
Ronald V. Bettif, a communications professor at Pennsylvania
State University, writes in his book "Copyrighting Culture: the
Political Economy of Intellectual Property"(Westview Press): "The
consequences of expanded intellectual property rights are always
the same: the continuing enclosure of the intellectual and artistic
More and more knowledge and culture are being privately
appropriated and submitted to the logic of the marketplace," he
What is patented is supposed to be novel, useful and not
obvious. Today, many critics feel the U.S. Patent and Trademark
Office is granting patents too readily with insufficient research
to establish that what it protects really is new and useful.
"The PTO refuses to give examiners enough time, money and
resources to search for relevant 'prior art' to establish
novelty," said Gregory Aharonian, who runs the specialist Internet
Patent Newservice in San Francisco.
As examples of what he calls "ridiculous patents" he cites one
for a disposable razor with a small mirror attached so the shaver
can watch himself shave and another for a dog collar that
discourages dogs from barking by buzzing them when they do.
Lessig agrees. "It takes $1.2 million on average to challenge
the validity of a patent, which means it is often cheaper simply to
pay the royalties than establish that a patent isn't deserved," he
Although many academic experts say copyrights can have
suffocating side effects, few argue for their abandonment. Boyle,
for instance, favors establishing a new property right that would
encourage native peoples to preserve forests and their tribal lore
by receiving royalty payments from pharmaceutical companies that
use the plants they live among and the natives' knowledge of them
to make profitable drugs.
Sales of a drug derived from the rosy periwinkle found in
Madagascar is used to treat Hodgkin's disease and are worth about
$100 million a year, he points out. But Madagascar gets nothing and
its people chop down their forests to live.
"Who knows what other unique and potentially valuable plants
disappear with the forest, what generations of pharmacological
experience disappear as the indigenous culture is destroyed?" he
Others argue that not only researchers but also participants in
experimental research should benefit from resulting medical
advances. Boyle cites the case of John Moore vs. the Regents of the
University of California, in which American courts decided that a
patient had no rights deriving from medical information about
proteins that regulate the immune system discovered through
research on his spleen.
Ryan writes that the United States, at the urging of business,
has been aggressively pushing other countries to accept its system
of intellectual property rights in international trade
negotiations. The results are mixed, however.
Susan K. Sell, the author of "Power and Ideas: North-South
Aspects of Intellectual Property and Antitrust," argues that
despite "their glaring vulnerability to trade threats, developing
countries have not enforced intellectual property protection" and
"do not believe in it at this point."
Washington is nonetheless likely to press for enforcement. Ryan
puts the cost of foreign piracy to American industry at more than
$10 billion in 1996, including $1.8 billion in the film industry,
$1.2 billion in music, $3.8 billion in business application
software, and $690 million in book publishing.