In Henry VI, Part II (c. 1590-1591), William Shakespeare describes a plot being hatched by a group of commoners against the English nobility. In outlining the rebels’ plan of attack, Dick the Butcher delivers a line that has taken on a life outside what is otherwise a minor drama. “The first thing we do,” he says, “let's kill all the lawyers.”
That might well have served as an epithet for attorney Lawrence Lessig's Free Culture, for lawyers are first among the cast of villains identified as the modern enemies of creativity. Lessig's third book on intellectual property rights in the age of the Internet is subtitled How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. It is not a systematic examination of the difficulties individuals have in using others’ materials for creative purposes. Rather, it is a carefully crafted legal brief demonstrating the urgent need for reforms to current laws that favor the few who now hold copyright to materials that ought to be available in some reasonable fashion to those who wish to use them.
Lessig believes that the old rules governing rights to intellectual property are inadequate tools for governing the use of such property by those he calls creators. Old laws were designed when the principal items being copyrighted were print materials. Accommodations made during the early years of the twentieth century to cover films and recorded music were barely adequate at the time, and the dawn of the Internet—with the attendant ability to store, retrieve, and manipulate mass amounts of data instantaneously—makes current copyright law totally outmoded.
The Internet, Lessig says, makes it possible to share information at a rate far exceeding anything human society had available in past ages. With such ability comes the need for revising laws so that those who use others’ materials appropriately will not be stymied by the courts. In a society where those with money are those that have power, the law must become the ally, not the enemy, of the “little guys” who will in the future, as they have in the past, be the principal innovators that advance society technologically and culturally.
When Lessig writes of the dangers to “free culture,” he is not clandestinely advocating the abolishment of copyright. For him, “free” is a synonym for “permissive”—against which he opposes “regulated” culture. His review of the history of creativity in the arts and sciences in the United States suggests that the country has, until recent times, been relatively permissive in allowing those who want to build on the work of the past to create new art or invent new items of practical use. What he calls the Progress Clause of the U.S. Constitution, in which the government is required to promote the useful and creative arts by assigning and limiting copyrights and patents, unfortunately was ignored in the latter decades of the twentieth century by members of Congress who have gone along with proposals to extend protections far beyond limits set by the Founding Fathers. Practically speaking, Lessig argues, the current copyright laws prevent intellectual property from ever passing into the public domain, where they may be used without compensation to creators or their heirs.
The problem, as Lessig sees it, is that those holding the copyright on a work can strangle creativity by denying individuals not only the right to copy the work but also the right to use it in any fashion to produce new, original works that may be seen as deriving in some way from the work under copyright.
The issue is twofold. First, the requirements for recording copyrighted materials have led to chaos when individuals try to secure permission to use printed materials; there is no practical way to determine who must grant permission for the use of many books, pamphlets, and other documents produced long ago but still protected by law. Second, in the realm of films and music, the growing concentration of ownership in fewer and fewer firms is giving a limited number of organizations the right to determine who will be free to create new art inspired by the artwork of the past. If allowed to continue to operate as they are now, these entities—“big businesses” all of them—will eventually stifle creativity among all but the few who are fortunate enough to end up on the payrolls of companies that will reap the...
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