Content uploaded by Siva Vaidhyanathan
Author content
All content in this area was uploaded by Siva Vaidhyanathan on May 14, 2016
Content may be subject to copyright.
Copyrights and Copywrongs: The Rise of Intellectual Property and How It
Threatens Creativity
By Siva Vaidhyanathan
New York, New York: New York University Press, 2003, Paper: ISBN 0-8147-8807-6
(Price $18.95), pp. 254.
Reviewed by Kristin Connarn
Journal of High Technology Law
Suffolk University Law School
In the past, copyright law was of interest only to legal scholars and Hollywood
film types. Today, however, copyright law is on the front page of local newspapers,
argued about in conversations at the water cooler, and discussed by teenagers looking to
find free music on the Web. Intellectual property intimidates those who don’t understand
the underlying principles or those that don’t speak the language of copyright law. Siva
Vaidhyanathan’s Copyrights and Copywrongs explains the history of American copyright
law in prose that is surprisingly free of legal and academic terminology.
Vaidhyanathan’s book surveys the historical developments from the literary works of
Mark Twain to the music sampling cases of Napster. The book highlights how copyright
law has accommodated the changing ways in which information is disseminated across
America. The book is well written and full of examples taken from popular culture that
allow the reader to connect with the author and the underlying philosophy of copyright
law.
Professor Vaidhyanathan is an Assistant Professor of Culture and Communication
at New York University. In addition to Copyrights and Copywrongs, he is the author of
The Anarchist in the Library: How Peer-to-Peer Networks Are Transforming Politics,
Culture, and Control of Information, Basic Books, 2004. He has also written for The
Nation, The Chronicle of Higher Education and The New York Times Magazine, among
others.
Copyrights and Copywrongs begins with an introduction to copyright law as it
relates to popular culture. Vaidhyanathan introduces the reader to the concept of
copyright with an anecdotal story of Groucho Marx’s A Night in Casablanca and the
accusations of copyright infringement on Warner Brothers’ Casablanca. Instead of
defining copyright in the Introduction, Vaidhyanathan questions for whom copyright is
really meant. This book uses a series of case studies to argue for “thin” copyright
protection: that which is “just strong enough to encourage and reward aspiring artists,
writers, musicians, and entrepreneurs, yet porous enough to allow full and rich
democratic speech and the free flow of information.”1 The author identifies three main
goals in writing this book: first, to trace the development of American copyright law
through the twentieth century; second, to outline the principles of copyright with an
emphasis on the declining notion that copyright should protect specific expressions but
not the ideas beneath those expressions; and finally, to argue that a system which
guarantees “thin” copyright protection would allow American culture and politics to
function better.
American copyright stems from the U.S. Constitution, which directed Congress to
create a federal law that would provide an incentive for authors to create and distribute
new works. The law grants an exclusive right to copy, sell, and perform a work of
original authorship that has been fixed in a tangible medium. Copyright is a monopoly
that lasts for a limited time and contains a few exceptions that allow for good faith use by
1 Pg. 5
private citizens, journalists, educators, and students. Contrary to popular belief,
copyright is actually a “bundle” of rights including the exclusive right to make copies,
authorize others to make copies, create derivative works, sell the work, perform the work
publicly, and sue for relief in case others infringe on any of these rights.
The field of copyright is based on an idea/expression dichotomy. This dichotomy
emerged during the discussions at the Constitutional Convention, where Republican
leaders recognized that the complete control over writings by the British Crown and the
Stationers’ Company had limited public discourse and stifled criticism of royalty and
parliamentary policy. Copyright, as intended by the framers of the Constitution, meant to
balance between the interests of the author and the interests of the public. When the
federal copyright laws were revised in 1976, the idea/expression dichotomy became a
part of the federal statute, codifying a principle that had developed through case law
during the last century. The first chapter of Copyrights and Copywrongs uses examples
to demonstrate the idea/expression dichotomy, making it easy for the reader to
understand this convoluted copyright theory.
The next chapter introduces the reader to the long fight for extended copyright
protection. Mark Twain was a committed advocate for authorship and the concept of
literary “property”. As a young writer, Twain supported the American public in their acts
of purchasing high-quality volumes of British literature at a much lower price than they
were being sold in England. As Twain’s career progressed, his opinion about copyright
evolved as he watched publishers in England and Canada pirate his books. By the end of
his career, Twain endorsed maximum protection for authors and for the thickest possible
copyright.
This chapter is full of history, illustrating the doctrinal differences that have
characterized copyright throughout the years. Vaidhyanathan explains the English
statutory copyright and the common law developments that formed American copyright
law. He explains how the Crown initially used copyright as a censorship tool. Under the
Licensing Acts, the Stationer’s were only allowed to publish books that were licensed by
the Crown. This licensing process gave the Crown an efficient method for enforcing
censorship. Eventually the monopoly ended, as the Licensing Act expired in 1964. The
Statute of Anne emerged, creating a free market for writers, and allowing copyright
protection for 28 years after a work was published. Copyright, as we know it today, was
starting to take form. This is the longest chapter of the book and the hardest to get
through. Certain parts are very slow and go into far more detail than needed for a book
of this type. However, Vaidhyanathan does a thorough job of tracing the evolution of
copyright and illustrating the lessons learned along the way.
The next chapter, “Celluloid Copyright and Derivative Works” picks up the pace
and grabs the reader’s attention once again. This time the topic is copyright in the motion
picture industry. This chapter traces the evolution of the motion picture studios from
copyright-poor individuals to copyright-rich industry. Previously, all of Mark Twain’s
pronouncements about copyright law centered on the literary copyright. After the
inventions of Thomas Edison and others, it was possible to commercially exploit
recorded music and motion pictures. The emerging new markets and technologies forced
the copyright industry to evolve once again. Vaidhyanathan uses specific examples to
demonstrate the film industry’s interest in allowing free and easy adaptation from literary
works to film. As the industry developed, however, the studios switched sides, looking
for stronger copyright protection and taking the plaintiff’s side in legal arguments.
Vaidhyanathan does a wonderful job of juxtaposing the current attitudes of Hollywood
executives; easily exploiting nonfictions works from the public domain while at the same
time lobbying for increased international and domestic copyright protection for their
films.
The theme of exploitation from the public domain continues as “American Music
Challenges the Copyright Protection”.2 The music industry provides more questions
about what exactly constitutes an idea versus an expression than any other industry
examined in this book. The expressions used in motion picture films and literary works,
the images and words, are relatively easy to separate from the underlying ideas. The
ideas and expressions in a musical creation, however, are more difficult to discern.
Common questions in this area are: “is the string of six notes that initiates “Happy
Birthday to You” an idea, an expression, or both? If it is an idea, there must be another
way to express the same idea. Would playing the same notes at a different tempo
constitute a new expression of the same idea? Would playing it in a different key be an
exercise in novel expression? Is there an idea behind a particular arrangement of musical
notes? Is there an idea behind a tone, texture, timbre, or “feel” of a song? Are these
features of a song ideas in themselves?”3 Although this chapter doesn’t provide the
answers to these questions, it does provoke a lot of thought in the area. After considering
this type of question, the reader will want an answer, but ultimately begin to understand
why even the law doesn’t yet have all of the answers.
2 pg 117
3 pg 117
This book creatively shows how one genre has “stolen” from another and how
even the “original” authors have taken from ethical and cultural traditions that were never
subject to copyrights, and called them their own. Ownership is a sloppy and confusing
idea when related to the creation of music. The underlying theme throughout this section
is that very little American popular music has not been influenced by some tradition of
the past. This chapter uses many examples; as a result, each reader will be able to
identify with a song or artist they are familiar with. This type of broad survey makes the
book appropriate to almost everyone. Unlike other books, Copyrights and Copywrongs
provides an inside look at some of the most difficult questions relating to copyright and
uses examples that appeal to a wide audience.
As if music didn’t leave enough unanswered questions, the digital revolution has
turned American copyright law upside down. The book eventually gets to a point where
it stops discussing the past, and starts examining current copyright issues. The expansion
of the Internet and the ease of making high-quality copies have challenged the
underpinnings of copyright law. It has become faster and easier for the masses to access
information, and as a result the threat of widespread copyright infringement has become
even greater. Themes such as the development of UNIX, the buildup and downfall of
Apple Computers, the introduction of CSS and DVD players, and Napster are discussed
in the final chapter.
Professor Vaidhyanathan discusses copyright law of today and of the past with
great thoroughness and presents a couple of suggestions for solutions to copyright issues
of the future. The book is well written and very interesting, even for those without a
background in intellectual property law. Vaidhyanathan explains copyright issues in
clear, concise language without unneeded legal jargon confusing the issues. The use of
historical examples and current case law illustrate his points in a way in which formal
legal writing would fail. The only area of the book that fails to grab the reader’s attention
is the comparison of the different cultures of copyright. This section is slow and tedious,
but a necessary component nonetheless.
Vaidhyanathan is a strong advocate for James Madison’s philosophy on
copyright: a leaky copyright system works best. He argues that when properly balanced,
copyright law allows the public to enjoy the benefits of cultural creativity at a relatively
low cost through the copyright monopoly. He calls for a thin, leaky copyright system
that allows writers to comment on copyrighted works, teachers and students to make
copies for educational purposes, and allows busy people to record their favorite television
shows for later viewing at their convenience.
Overall, Professor Vaidhyanathan’s Copyrights and Copywrongs is an interesting
book for both those that know a little about copyright law and those with only a casual
interest. It provides a great background of copyright history and an insight into where
copyright is headed. Some areas of the book are tedious and provide unnecessary details,
but I would still recommend this book to anyone interested in copyright and the
challenges this area of law faces in the future.
