[free-sklyarov] Another ebook "processor"

[Jeme A Brelin]

On Fri, 17 Aug 2001, Seth Johnson wrote:
> Do you have any references that show how things were different before
> the Berne Convention, particularly as relates to the application of
> copyright to fine arts?

It's been a while since I've read the Copyright Act of 1793, penned by
Jefferson himself who was opposed to copyright.  I'm not sure how it
distinguished works of authorship that carried exclusive rights from works
of authorship that did not.

The short answer is no, but I think that would be interesting.  I don't
believe the US has ever implemented a copyright act that was as strict as
the Constitutional mandate.  And I think the popular perception fo
copyright has always been more broad than the law has ever intended.  We
see that, even today when copyright law is more restrictive of the
majority than it ever has been, people still mistake non-infringing acts
for infringing ones.

Personally, I believe this stems from the belief by most that they,
themselves, might some day become an author and be able to retire to the
workless life they perceive copyright protection granting them in this
magical world.

[I had a conversation with a coworker today about real estate and the
ethics of renting property.  He agreed with everything I said... until I
said I thought it should be illegal.  Then he rebuffed, "Well, it
shouldn't be ILLEGAL."  I said, "Why not?  You just agreed that it was
unethical to take profit from something to which you add no value."  And
he said, "Well, I was thinking I might want to do it some day!"]

The Berne Convention wasn't formally adopted by the United States until
1988, but the concepts within it were adopted gradually over the course of
the last century.

In particular the 1908 revision of the Berne Convention (the Berlin
Act) is the one that prohibited formalities (such as copyright
registration and, therefore, publication) as a prerequisite for copyright
protection.

In 1909 the US revised the Copyright Act to include ALL works of
authoriship and the gross extension of copyright to a total of 56 years
(which is nothing compared to the Berlin Act's life+50 years or the
current US law, Life+70 or 95 for corporate authoriship).

Already at this time, the public interest and balance of copyright was
swayed toward the concept of proprietor's rights, as opposed to public
interest.

"The main object to be desired in expanding copyright protection accorded
to music has been to give the composer an adequate return for the value of
his composition, and it has been a serious and difficult task to combine
the protection of the composer with the protection of the public, and to
so frame an act that it would accomplish the double purpose of securing to
the composer an adequate return for all use made of his composition and at
the same time prevent the formation of oppressive monopolies, which might
be founded upon the very rights granted to the composer for the purpose of
protecting his interests." H.R. Rep. No. 2222 60th Cong., 2nd Sess.7
(1909).

The fact of seven media companies today controlling more than 80% of the
circulated works of authorship (including music, film, and words) shows
how well this "double purpose" was served.

Full statutory Berne Convention compliance came with the Copyright Act of
1976 (twelve years before actual signature of the Convention).

The 1976 act was the first to make the fair use provision statutory.  All
fair use, to date, had been based on common law and cases like Folsom v.
Marsh, in which Justice Storey stated: "In short, we must often, in
deciding questions of this sort, look to the nature and objects of the
selections made, the quantity and value of the materials used, and the
degree in which the use may prejudice the sale or diminish the profits, or
supersede the objects, of the original work."

It's important to note, I think, that fair use has received a statutory
limitation of scope (as opposed to being left to the discretion of the
judiciary).  For example, the clearly educational and publicly beneficial
nature of the acts in Encyclopedia Britannica v. Crooks show that the
statutory implementation of fair use restricts expression far more than
the common law.

But it was not until 1988 that the US increased its copyright relations
with the addition of the 24 Berne signatories not already in copyright
treaty with the United states, the removal of a copyright mark or notice
on copyrighted works of authorship, and greater protection for
proprietors.



-- 
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     Jeme A Brelin
    jeme at brelin.net
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 [cc] counter-copyright
 http://www.openlaw.org