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The Copyright Divide

The Copyright Divide

By PETER K. YU - Michigan State University College of Law

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Abstract

    Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

    In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens.

    The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world.

    This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts.

Facts on copyright

  • Two major developments in the 14th and 15th centuries seem to have provoked the development of modern copyright. First, the expansion of mercantilist trade in major European cities and the appearance of the secular university helped produce an educated bourgeois class interested in the information of the day. This helped spur the emergence of a "public sphere," which was increasingly served by entrepreneurial "stationers" who would produce copies of books on demand. Second, Gutenberg's development of movable type and the development and spread of the printing press made mass reproduction of printed works quick and cheap. Before these two developments, the process of copying a work could be nearly as labor intensive and expensive as creating the original, and was largely relegated to monastic scribes.
  • Article I, Section 8 of the Constitution for the United States gives the United States Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.". Congress first exercised this power with the enactment of the Copyright Act of 1790, and has changed and updated statutory copyright law multiple times since. The specific language is as follows: "Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
  • Different countries impose different tests, although generally the requirements are low. In the United Kingdom there has to be some 'skill, originality and work' which has gone into it. However, even fairly trivial amounts of these qualities are sufficient for determining whether a particular act of copying constitutes an infringement of the author's original expression.

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