Article I, Section 8 of the U.S. Constitution gives 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.” U. S. Copyright legislation no longer does this — it has become a means of protecting property rights.

This piece from GalleyCat, based on a talk with someone from CCC, leaves one assuming that lyrics can never be quoted without permission. This is not true: if you are quoting a song for “criticism and review”, as many who wish to quote lyrics probably are, then no permission is required from the copyright owner. Such fair use used to be held to permit quotation which was “not substantial” — the whole point of copyright being to encourage new writing, not to stifle it. Thus I (a strict constructionist in this matter) would maintain that quoting one line from a pop song’s lyrics is likely to be fair use, and thus exempt from any need for permission. I’d also maintain that it was likely to benefit the song’s owner, not damage the sale — but the publishing industry, ever eager to avoid any mistake, rather than to do right, has apparently conceded the point (without any change in the law) by habitually seeking to clear permission even for short extracts.

Did you realize that no books would be entering the public domain this year. Here’s why. Giving ever longer copyright protection to books is a consequence of lobbying, principally by the film industry. Michael Perry comments (in response to a Publishers Weekly piece on Authors Guild testimony):

We can vent our rage at Google or at judges, but the real fault lies with Congress. We’ve not had a major revision in copyright law since the late 1970s. The courts are being asked to decide cases based on laws that predate personal computers and the Internet. For a parallel, imagine a 1950 court being forced to handle legal issues involving car accidents with traffic laws that’d had not be revised since the horse-and-buggy era. It really is that bad.
For an explanation, you need look no further than the only major change that Congress has managed to make in recent decades, the Sonny Bono Copyright Extension Act of 1998. Copyright term extension had all the big money behind it. That made action easy.
Today’s Congress is owned, lock, stock and barrel, by those who fund lobbyists.”

I think we have come to the point where we need two kinds of copyright. Movies, which cost so much to make, are just so different from books — you can see some sort of need for the rights owner to want solid and lengthy protection of their investment in a film. Whereas, in its origin, copyright was all about encouraging the dissemination of knowledge, setting some sorts of limits (but not prohibiting) quoting, adapting, extending, parodying existing works. Obviously this sort of activity isn’t what’s being thought about when it comes to protecting movies, yet books are today getting the extensive protection they have as a side benefit of the movie studio’s requirements.

Of course if one accepts this split, one might need to consider whether other categories of “intellectual property” covered by copyright might also need to be split off into some different mode of protection too — music, art works, computer programs and games etc. At the time of the Sonny Bono Act, Mickey Mouse was about to enter the public domain. Maybe Mickey Mouse and The Cat in the Hat have more in common than I’m willing to concede. Perhaps the real distinction needs to be between entertainment and information. One of the non-fiction bestsellers of 1957 (thus, no doubt, not entering the public domain this year) was Don Whitehead: The FBI Story. I can see more need for such a book to have its content freely usable by others than The Cat in the Hat; Atlas Shrugged too — so it’s not just a simple fiction/non-fiction split. Drawing the line between entertainment and information is liable to be difficult: perhaps we might come up with some distinction in coverage which would make you want to go for one kind of protection for books which might be used one way while inclining you in the other direction with the others. Of course now you are liable to say “What do you have in mind?” Well, I do have an idea — as the long term protection drive is all about protecting an investment, how about making copyright coverage into an investment decision. Movie budgets are so large that a payment for the privilege of extended protection could be insignificant to the studios. Thus if you paid $100,000 you could get 100 years’ protection, $50,000 would get you 50 years’ protection and zero dollars would keep copyright in effect for 25 years. Probably the sums I list are too low, but I think there’s at least a debate to be had around such a plan.

The good news is that the leviathan is stirring. The British parliament is looking at copyright revision I believe, and the U.S. Congress is at least holding hearings, though action is probably a fairly long way off.