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The Owners of Culture vs. the Free Agents
NYT January 18, 2003
By EDWARD ROTHSTEIN

The Stanford Law School professor Lawrence Lessig called it
the "Mickey Mouse Protection Act." And even though Mickey
himself does not figure in the law or in the Supreme
Court's 7-to-2 decision to uphold the 1998 Copyright Term
Extension Act on Wednesday, the smiling rodent still has a
starring role in discussions of the case.

This is partly because the act, which expanded copyright
protection for intellectual property another 20 years, was
actively supported by major corporations in the
entertainment industry. Indeed, without the copyright
extension - which protects corporate copyrights for 95
years, and individual copyright for 70 years after the
creator's death - the Disney mascot, whose squeaky-voiced
endorsements are associated with the corporation's films,
resorts, cruises and amusement parks, would have been
entering the public domain next year. He would be a free
agent.

But there are other serious issues involved in addition to
serious commercial interests. And opponents of the act, led
by Mr. Lessig, who took on the case pro bono and argued it
before the Supreme Court, see this defeat as the first
battle in a major war. On one side they see corporate power
and quashed possibility; on the other, creativity, openness
and the possibilities of the Internet. In a speech last
summer (oreillynet .com/pub/au/1015), Mr. Lessig declared,
"Ours is less and less a free society." Far from being
free, he argued, "culture is owned."

Mr. Lessig, an activist in the area of copyright and
intellectual property law, advocates a radical weakening of
its protections and a dramatic strengthening of the public
domain. He has also argued that the Internet, which began
as a free and open network, is in imminent danger of
similarly becoming a constricted arena molded by corporate
and governmental interests. This perspective was
influential in shaping the ideological direction of the
Berkman Center for Internet and Society at the Harvard Law
School (cyber.law.harvard.edu), where he taught before
leaving for Stanford and founding the Stanford Center for
Internet and Society at the Stanford Law School
(cyberlaw.stanford .edu).

Mr. Lessig's arguments in his books ("Code and Other Laws
of Cyberspace" and "The Future of Ideas") even have
countercultural overtones, with their invocations of an
earlier, more natural world disrupted by corporate power
and misused technology. And his notion that copyright is
crushing artistic creativity is actually an inversion of
the traditional view of copyright, which was seen as an
incentive and protection. Mr. Lessig argues that this has
occurred because copyright itself has changed. It has been
extended to cover so long a period that it has ceased to
serve as an incentive. In 1790 it lasted for 14 years and
was renewable for 14 more; now it affects grandchildren.
Mr. Lessig is hoping authors and creators will sign a
Founders' Copyright contract (creativecommons.org), which
will voluntarily limit copyright to just 14 years and then
place the work in the public domain.

But copyright controls have expanded over time for a
variety of reasons: people live longer; commercial
enterprises have evolved that are closely linked with
specific images and stories; authors and publishers have
different needs and expectations; international commerce
has required equivalent protections. In fact the 1998 law
Mr. Lessig challenged was intended to match the kinds of
copyright protections already offered by the European
Union.

Yes, there are sometimes absurd problems incurred in
obtaining permissions. Yes, there are also examples of
abuse and intolerable schemes to prevent the copying of
music and software. The 20-year extension may also be too
long (as the Court seemed prepared to grant). But the
recurring argument that culture is now "owned" and must be
freed and that creativity is being stifled as a result is
overwrought. What innovations, for example, are being
thwarted by corporate control over Mickey Mouse?

In a lecture in August, Mr. Lessig gave a kind of answer,
suggesting that today's rules would never allow Disney to
flourish in the same way. Walt Disney required the public
domain to create his films, drawing on Grimm's Fairy Tales.
Mickey's first major cartoon ("Steamboat Willie") was based
on a new Buster Keaton film, "Steamboat Bill." Today, Mr.
Lessig asserts, the public domain is poorer and such
imitation restricted.

But the public domain is larger now than in 1928, not
smaller, and the continuing influence of copyrighted works
should not be underestimated. Even Disney had to purchase
rights to "Winnie the Pooh." Moreover, his Mickey cartoon
was hardly, as Mr. Lessig joked, a matter of "rip, mix and
burn," resembling the actions of today's compilers and
copiers. It was an innovative parody. And courts have
tended to allow this kind of enterprise (witness the
publication of "The Wind Done Gone," Alice Randall's
African-American version of "Gone With the Wind.")

It may be that one reason passions have flared so high is
that a dominant style of popular culture in the 1990's was
pastiche, which is indeed hampered by copyright. But if
cultural health were really affected by whether Mickey and
his contemporaries were in the public domain, there may be
other, more serious problems to consider first - like why a
truly creative culture can't find other ideas to work with.


There really are copyright issues to discuss, but not as
part of the kind of ideological romance that has grown up
in the current debates. A problem is posed by technological
innovations that allow easy copying and transmission; there
are dangers to the incentives copyright establishes. So new
forms of control develop and those controls, in turn, pose
dangers. But this is not the war that Mr. Lessig and his
colleagues have in mind.

As it turns out, the extension of 20 years means that
copyright law has held off for a while what will be a
large-scale entrance of television and movies into the
public domain. In the meantime, the absence of a public
domain has not hampered creativity in either medium. And it
will give Mickey and Minnie and Goofy plenty of time to
prepare for becoming public figures.

http://www.nytimes.com/2003/01/18/arts/18CONN.html