Copyright's Knowledge Principle
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COPYRIGHT’S KNOWLEDGE PRINCIPLE Jenny Lynn Sheridan* This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the Constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works. Under what is best termed the “knowledge principle,” access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers—from early booksellers to modern Hollywood film companies— failing to notice the central role of access to works as a necessary pre-condition to the creation of new works. The realities of the digital era further hinder the functioning of this mechanism. Ownership of copies of texts has morphed into a limited right of possession of digital files. Public libraries can no longer fulfill their mission of maximizing the circulation of materials in order to spread available knowledge among citizens. This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works. In this model, public libraries would exercise non-waivable “fair access” rights on behalf of the public for the purposes of learning and education. These “fair access” rights serve to realign copyright with its Constitutional justification, and more importantly serve to support the knowledge creation process for the future of our democratic society. * Visiting Assistant Professor, Drexel University School of Law, J.D., Columbia Law School. I wish to thank Rebecca Tushnet, Terry Jean Seligmann, Pammela Q. Saunders, and Richard Frankel for their helpful comments. I am also grateful for the diligent research assistance of Christina Haines and Meredith Lowry. A draft of this Article was presented and refined at the 2011 IP Scholars Conference hosted by DePaul Law School, the 2012 Columbia Fellows Workshop at Columbia Law School, and the 2013 Junior Faculty Workshop at Drexel’s School of Law. DRAFT—DO NOT CITE 8/5/2014 2 SHERIDAN [8/5/2014 DRAFT—DO NOT CITE INTRODUCTION ......................................................................................... 4 PART I. KNOWLEDGE .............................................................................. 13 A. Copyright’s Public Good ........................................................... 15 B. Anglo-American Copyright’s Birth Story .................................. 21 PART II. DOCTRINE ................................................................................. 26 A. Early Copyright Jurisprudence – Literal Copyright .................. 29 1. British pro-restraint approach ............................................ 29 2. American pro-expansion framework ................................. 30 3. Emergence of non-literal protection .................................. 33 B. Modern Copyright Jurisprudence – Print Era ........................... 35 1. The Romantic Movement and its influence on copyright .. 37 2. Originality and substantial similarity: the music cases ...... 39 3. Idea-expression doctrine: the film cases ............................ 44 C. Back to the Future –Digital Transition and Pure Digital ......... 48 PART III. THEORY ................................................................................... 55 A. Contemporary Copyright ........................................................... 55 1. Traditional incentives model and the fair use doctrine ...... 57 2. Property rights model and the idea-expression doctrine .... 61 B. The Future of Copyright ............................................................ 67 1. Monopolies of knowledge .................................................. 67 2. Towards a “Fair Access” Rights Framework ..................... 73 CONCLUSION ........................................................................................... 77 DRAFT—DO NOT CITE 8/5/2014 4 SHERIDAN [8/5/2014 INTRODUCTION DATELINE: New York City, December 12, 2050. Visitors can now see how information used to be published and circulated to the public at large by viewing the “New York Public Library Museum” exhibit, which opened today. Public libraries disappeared after the Great Recession of 2008-2018, as the explosion in the use of e-readers like the now antiquated Kindle or Nook made sustaining buildings and staff financially untenable in the face of reduced demand. The project of digitizing all extant print materials was completed shortly afterwards. In contrast to today’s OogleWorks-managed, cloud-based licensing operation, which rents time-limited access to digitized works for reading (formerly books), viewing (movies), or listening (music), the Museum harkens back to a time when there was free access to information by members of the public regardless of means, and when the public itself could own, share, and circulate information. This vision of the near future is becoming real.1 Copyright jurisprudence has lost sight of what is best termed the “knowledge principle,” which lies at the heart of the Constitutional justification 1 See The State of America’s Libraries: Long-term pain persists, with minimal relief, AM. LIBR. ASS’N (2011), http://www.ala.org/news/mediapresscenter/americaslibraries/libraryfunding; Stacey von Winckelmann, The American Public Library System: A Case Study of Public Libraries in the twenty-first Century (July 20, 2011) (unpublished M.A. thesis, Leiden University), available at http://www.academia.edu/888046/The_American_Public_Library_System_A_C ase_Study_of_Public_Libraries_in_the_twenty-first_Century; Celeste Bruno, With Demand Growing, Libraries Face Fiscal Pressure, 27 MUN. ADVOC. 15 (2012), available at http://www.mma.org/resources-mainmenu- 182/doc_view/769-with-demand-growing-libraries-face-fiscal-pressure; Mike Shatzkin, It Will Be Hard To Find A Public Library 15 Years From Now, THE SHATZKIN FILES BLOG (Apr. 8, 2011, 5:53 PM), http://www.idealog.com/blog/it-will-be-hard-to-find-a-public-library-15-years- from-now/. John Tehranian claims that “[D]igital fences have begun to dot the online landscape, bringing a new enclosure movement to our cyber commons every bit as significant as the eighteenth-century edition.” John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, UTAH L. REV. 537, 539 (2007). See also James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 34-37, 40-41 (2003). DRAFT—DO NOT CITE 8/5/2014] Copyright’s Knowledge Principle 5 for copyright.2 The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works.3 The meaning of “advancement of knowledge” in this context is of critical importance to a thriving democratic society and is examined in this Article through the lens of copyright’s knowledge principle. In so doing, this Article reframes copyright theory and jurisprudence to focus on society’s interest rather than producers’ interests.4 The knowledge principle holds that access to existing knowledge is a necessary condition for the creation of new knowledge.5 Even more simply, knowledge must be acquired first before it can be advanced. For example, a scientist must access 2 The copyright power reads, “to promote the Progress of Science . by securing for limited Times to Authors . the exclusive Right to their respective Writings . .” “Science” in colonial times referred to knowledge. U.S. CONST. art. I, § 8. In the colonial era, the term “Science” was associated with knowledge, whereas “the Arts” referred to innovation and patents. JANICE MUELLER, PATENT LAW 32 (3rd ed. 2009). See also Edward Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective, 83 J. PAT. & TRADEMARK OFF. SOC’Y 763, 781 (2001). The first U.S. copyright statute of 1790 referred to the “encouragement of learning,” following the title of the world’s first copyright statute, the Statute of Anne in Britain in 1710. See 1 Stat. 124 (1789-1790); Statute of Anne, 1710, 8 Ann., c. 19 (Gr. Brit.). See also WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 38-39 (2009) (referring to Lord Macaulay’s speech about public good being the “bounty of genius and learning” and further characterizing copyright monopoly as a tax on society whose rate should be justified by an increase in the bounty of genius and learning); MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 42, 44 (1993) (discussing the priority given to encouragement and learning and Locke’s memo advocating limited terms from monopoly of printing); Isabella Alexander, All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century, 25 BERKELEY TECH. L.J. 1351, 1373 (2010) (discussing Samuel Johnson arguing for abridgements as not prohibited by the Statute of Anne because they benefit learning and knowledge); Jessica Litman, Readers’ Copyright, 58 J. COPYRIGHT SOC’Y U.S.A. 325, 335 (2011). 3 See supra note 2 and accompanying text. 4 The Framers saw the creation and dissemination of copyrighted material as the method to accomplish copyright’s end—the “advancement of knowledge” for society, not for authors or publishers. Jessica Litman notes “Congress, for its part, once took some care to paint copyright laws as designed to benefit