Ed Felten deconstructs the 2004 Annual Report of the Register of Copyrights. The critique is aimed largely at the Report’s conflation of the descriptive with the normative — the idea that the current state of copyright is, in fact, a good thing — and its justifying that conflation by implying that the Founders would approve of what’s happening in current law.
The Founders would be skeptical, I think, but perhaps on different grounds, or at least additional ones. The foundational error that the Report makes, and it’s a common one, is to treat copyright law solely as a framework for content creation and content delivery. (Individual) authors produce; (individual) consumers consume. I put “individual” in parentheses there, but the word is important. From the Report:
The Founders knew what they were doing when they made explicit that Congress was to secure to authors an “exclusive Right.” They understood that individual rights, especially property-like rights, were the key to establishing a stable and productive society.
Ed Felten points out, rightly, that an authentic notion of public welfare is absent in the Report’s formulation. Access to copyrighted works is a necessary part of the public’s end of the copyright bargain, and access is not the Report’s primary concern.
Note, though, that once granted, access perpetuates the “individual authors produce; individual consumers consume” paradigm. I’m going to speculate that the Founders looked at maps, charts, and books (the original subject matter of copyright) as more than mere vehicles for information delivery. Maps, charts, and books were the original social media, ways for people to explore, to encounter the new, and most important to communicate with one another about what they knew and what they found. Jefferson wrote: “No one more sincerely wishes the spread of information among mankind than I do, and none has greater confidence in its effect towards supporting free and good government.” Madison: “The advancement and diffusion of knowledge is the only guardian of true liberty.”
Modern copyright has almost entirely lost that socializing sense, not merely with respect to books and other media, but with respect to knowledge and information generally. The Report notes:
The purpose of the Constitutionâ€™s copyright clause and subsequent legislation is to foster the growth of learning and culture for the good of the public. The grant of exclusive rights for a limited time is the means to that end.
but the Report speaks of consumers, customers, and users — passive receptacles for the material supplied by creators and owners. My sense is that the Founders saw copyright as an instrument for the circulation of knowledge — a social function. The rhetoric of “authors” and “publishers” was familiar to them. But the rhetoric of customers, consumers, and users, I suspect, was not.