copyright law

When making the case that the terms of copyright protection are too long – currently, an author’s lifetime plus 70 years – it is not uncommon to note that “Happy Birthday to You” is still under copyright.  Yes, that ubiquitous little ditty of folk culture is a piece of private property.  It should inspire a fair bit of outrage that a song first published in 1893 will remain copyrighted until 2030. 

While you won’t get dunned for singing it at home, the private ownership of the song means that many restaurants such as Red Lobster and Outback Steakhouse have had to develop their own “birthday songs” in order to avoid paying a “public performance” licensing fee to ASCAP.  If a documentary film or TV broadcast (such as the news) carries a snippet of “Happy Birthday,” the producers must pay a fee to Summy-Birchard, the current owner of the song, which is also a subsidiary of Warner/Chappell Music Inc., which is the publishing arm of Warner Music Group, which itself is owned by Time Warner.  

In the 1990s, a variety of industries dependent on copyright, trademark and patent law decided that the Internet and new digital technologies were getting way too dangerous. Upstart competitors with innovative business models were starting to invade well-established markets.  Worse, ordinary people were starting to bypass the market system and challenge the supremacy of copyright and patent law (and to a lesser extent, trademark law).  People began to create their own freely shareable alternatives using free software, co-production of content and virtually free distribution.

And so it was that the corporate giants of information and culture staked out the high ground of “property rights.”  It would be the citadel from which they would defend their entrenched business models and fight the “dangers” of digital networks.  The result has been the IP Wars, a sprawling set of political, economic and cultural conflicts that continue to rage today. 

It is a far-ranging conflagration that affects dozens of creative and cultural enterprises -- film production and distribution, musical performance and recording, book publishing, photography and video production, pharmaceutical development, scientific research, scholarly publishing and databases, among many other arenas.

There has also been a strenuous backlash to IP industries.  People with HIV/AIDS have risen up to fight the broad patent claims of the pharmaceutical industry, which has made life-saving drugs unaffordable to millions of people in need.  Hackers have organized to resist the proprietary lock-down of software code, and insisted upon basic human freedom to copy and share their code.  Subsistence farmers have resisted patent laws that promote genetically modified crops and threaten their seed-sharing practices.

Those antic law professors who gave us Bound by Law – a glorious superhero-comic treatment of the fair use doctrine in filmmaking -- are at it again!  Forget DC Comics.  I want my IP Comics!  Keith Aoki, James Boyle and Jennifer Jenkins are apparently out to build a franchise by translating the arcane monstrosities of copyright law into clever, hilarious and downright educational comic books. 

Their latest offering, due out in the spring or summer of 2011, is Theft!  A History of Music -- Musical Borrowing from Plato to Hip-Hop. Aoki, a professor of law at the UC-Davis School of Law, is the graphic artist for the comic book.  Boyle and Jenkins  -- both professors at Duke Law School – researched, wrote and designed it.  Boyle is the former Chairman of Creative Commons and co-founder of its spinoff project, Science Commons.  Jenkins heads the Center for the Study of the Public Domain.