Tuesday, July 28, 2009

Unconstitutional Copyrights?

As part of a revise-and-resubmit process, I've been spending much of my summer upgrading my draft book, Intellectual Privilege: A Libertarian View of Copyright. That effort has led me to revisit copyright's constitutional foundations. I find them very shaky, indeed. This passage (with footnotes excerpted) explains why modern copyright law often fails "to promote the Progress of Science and the useful Arts":

What would copyright look like if we took the Constitution at its word, requiring that copyright promote the progress of both science and the useful arts? We would then have to look askance at the current practice of affording copyright protection to such purely artistic creations as songs, plays, novels, paintings, and sculptures. Even supposing that "science" reaches broadly enough to cover all of the humane sciences—a reading that Malla Pollack documents as an original meaning of the term—copyright law today focuses far more on the expressive arts than on the "useful" ones.

Taking "Science and useful Arts" seriously would thus radically narrow the proper scope of copyright. The first Copyright Act, enacted in 1790 by some of the same people who wrote and ratified the Constitution, covered only maps, charts, and books. Permitting copyrights in first two types of works plainly promoted both science and the useful arts. Lawmakers in 1790 probably regarded books, too, primarily as tools rather than diversions. Novels had yet to rise to prominence, after all; the first American one, William Hill Brown's THE POWER OF SYMPATHY, had appeared only the year before, and even it aimed at practical ends, promising "to Expose the fatal consequences of SEDUCTION." Judging from the titles in libraries and on sale, fiction made up only a small portion of the books available in late eighteenth century America. The 1790 Copyright Acts moreover excluded such purely artistic expressions as songs, plays, paintings, and sculptures—even though its drafters undoubtedly knew of and appreciated those sorts of works.

It appears, then, that "[t]o promote the Progress of Science and useful Arts" originally meant that that copyrights had to serve practical ends, rather than merely expressive ones. But originalists should not alone embrace that constitutional limitation on copyright's scope. Given that "Science" now connotes a more technical and specialized endeavor than it did in the eighteenth century, the plain, present, public meaning of the Constitution likewise counsels against extending copyright protection to purely artistic works. Whether we give the Constitution's text its original meaning or its current one, therefore, copyright should cover little more than maps, charts, non-fiction books, illustrations, documentaries, computer programs, and architecture. Most songs, plays, fictional books, paintings, sculptures, dances, movies, and other artistic works, because they fail to promote the progress of science and the useful arts, would on that reasoning not qualify for copyright protection.

However rigorously logical, that argument against the constitutionality of almost all modern copyright law will, I grant, probably generate more grins than agreement. Courts and commentators have hitherto hardly bothered to distinguish between "Science and useful Arts"; still less have they taken those words to impose real limitations on federal power. Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however—"the Progress of Science and useful Arts"—and a great many works now covered by copyright cannot plausibly claim to do both.

This argument against the constitutionality of most modern copyright relies, by the way, on a prior argument about the structure of the copyright clause; to wit, that "Science and useful Arts" modifies both "authors" and "inventors." Also, I intend to follow up the above with an analysis of how the Supreme Court in Eldred took a view almost exactly opposite to the text-based one I've embraced. (I'd call that an admission, were I not proud to disagree with the Court.)

[Crossposted at Agoraphilia, TechLiberation Front.]


dgm said...

"Most songs, plays, fictional books, ..., because they fail to promote the progress of science and the useful arts, would on that reasoning qualify as unconstitutional."

Don't you mean to say that affording them copyright protection would be unconstitutional, not that they are, in themselves, unconstitutional?

Scott said...

a question about photography.

Since illustrations should be allowed copyright status, would photographs used in science books have copyright protection separate from the book itself?

If I take a picture of a tree for the purpose of selling to a science book but it never sells, is it copyright protected? What if Ansel Adams took a picture of a tree (for purely artistic reasons) and someone buys the rights and puts it in a science book, does that image get copyright protection separate from the book?
How would you decide which picture is allowed a copyright. By intent or use?

Tom W. Bell said...

dgm: Yes, thanks.

Scott: Interesting hypo. I suppose that the easiest solution would be the one that the Founding generation evidently took in the 1790 Act, with regard to books: Ignore the particulars of each work and instead judge the medium by its general propensity to promote science and useful arts. They knew of fiction books, after all, but probably reasoned that most books (as they knew them) aimed at practical goals. So, too, might lawmakers judge photographs. But songs? Dances? Operas? It strains credulity to think most of those would promote science and useful arts.

Tenrou Ugetsu said...

In answer to Scott, I think the nature of copyright protection would make all the scenarios you present to be protected from unfair use. A photo from Ansel Adams used in a book would need the permission Ansel Adams. Similarly, if someone buys the rights to the book, they would have theoretically retained the same permission to use Adams' photo in that book, however if they were to put that same photo in a new book, they would need to get permission from Ansel again since the photo is the property of Ansel and the original author was just given permission to use it.

Don Marti said...

Does the "progress" doctrine imply that courts should recognize a bad science or useless art defense in copyright infringement cases? Or, if A writes a book of really bad advice, and B publishes a derivative work with substantial corrections, should B be able to claim the "progress defense?"

Scott said...

I understand how the Adam's image would be protected under the book's copyright. What about the photograph itself?

Tom, are there any cases where an independent photograph can, constitutionally, have a copyright?

Under the "scientific or useful arts" standard, is it intent or usage that would give copyright protection to the photographer?

ceh said...

If indeed we are presupposing that "science" includes the humane sciences, we might also explore what the Founders meant by "useful" arts. I think this question has been addressed at length in the patent context, but query what is the measure of a writing's usefulness? I think that the Founders knew many contemporary works to be purely fictional and expressive in nature, e.g. poems, plays, paintings. As such, perhaps they understood such works to be "useful" because of their expressive nature, such that the liberal arts, including visual arts, would have been considered to be useful.

As support, it is also important to note that article 1, section 8 is permissive, not mandatory, in that it defines the scope of Congress's powers, but it does not require Congress to do anything (e.g. Congress may also organize militias and establish uniform laws on weights and measures, but does not currently do so). Thus, insofar as the 1790 Act was also drafted by the Founders, there is no evidence (based on what you have written so far) that they intended the Act to be coextensive with their constitutional legislative power to grant copyrights. In other words, they could have thought that "science and useful arts" was really broad class of writings and they wanted only to give protection to a subset thereof. As the economic value of other types of works expanded, they said fine, let's expand the subject matter. There is quite a bit of scholarship about the economic impetus behind the expansion of statutory copyright subject matter through the nineteenth and twentieth centuries (some cited by TWB in his own useful arts, if I recall correctly...).

Anyways, just throwing this out there. I look forward to seeing the final version of your book.

Tom W. Bell said...

Don Marti: I suspect you jest--and well!--but in all seriousness, courts would probably dodge judgments about whether any particular work (as opposed to class of works) promotes progress. It would suffice if, say, the plaintiff had created a map, maps generally promote the progress of science and useful arts, and defendant had infringed.

Scott: I should think that photographs would more likely satisfy the constitutional test I've advanced than drawings or paintings would. As to your second question, it would probably take some back-and-forth in the courts to figure out what works best, but I'd start with the presumption that the way a work get used, rather than the (always elusive) intent of its author matters most.

ceh: Yes, you can interpret "useful arts" that broadly . . . but only by doing violence to the notion that the words meaningfully limit lawmakers' powers. Agreed, though, that the 1790 Act might well have represented only part of what 1790 lawmakers thought themselves empowered to do. We have next to no information about that question, though. Copyright was not a very big deal back then; patents got much more attention.

ceh said...

I'm no constitutional scholar, but I thought 1.8 a/k/a the enumerated powers was broadly construed, unless narrowed by some other provision. Cf. 1.9 ("limits on congress"). For example, the 1.8 power to "regulate commerce" among the states has been interpreted fairly broadly, at least to varying degrees, throughout U.S. history.

With respect to the issue of whether they meant to be exercising the full extent of their powers, there is evidence that in at least some cases, they didn't mean to. For example, patentable subject matter was defined in 1790 as "any useful art, manufacture, engine, machine, or device." In 1790, the scope was expanded to include "composition of matter." Processes did not become patentable subject matter until much later.

If patents received a lot more attention than copyrights back then, shouldn't that make it more likely that Congress would try to maximize the scope of patentable subject matter?

As an interesting aside, do you think Congress intended the term "useful art" in the 1790 Patent Act (titled "An Act to promote the useful Arts") to take the same meaning as the constitutional "useful arts"? If so, could you get a patent on a book in 1790? Note also that the word "science" is conspicuously absent from the 1790 Act.

ceh said...

*edit* the 2nd reference to 1790 should read 1793.

Tom W. Bell said...

ceh: Don't get me started on how broadly courts have interpreted the powers of federal lawmakers. I'll tell you about the unconstitutionality of that interpretation, and you'll conclude that I'm an ivory tower theorist.

Stephen said...

Actually, what about the application of the rule against perpetuity to the construction of the constitutional meaning of a reasonable limitation?