Copyright law faces sea change

A scene that could come from any of the past four centuries: An artist paints a picture and attempts to exhibit and sell the work.

A scenario, however, that has been only possible over the past decade: The artist's image is scanned into a computer, placed on the Internet, and downloaded worldwide, wherever someone wants a copy.

Fortunately, for Michael Whelan, a book illustrator in Danbury, Conn., a friend of his happened to be looking through a computer bulletin board when he came upon a few of Mr. Whelan's images that he recognized. They were being offered for sale.

Nowhere did it say that Whelan was the artist, and, in fact, the copyright notice had been deleted. The images themselves had been somewhat altered. In one case, mountains were replaced by a sign that said "Welcome to the World of Macintosh."

At least two copyright laws were violated by an unknown number of electronic services that had appropriated Whelan's work.

But if Whelan was fortunate to have a friend find his work on a computer bulletin board, New York City illustrator Bill Lombardo was a little less fortunate. A friend found his work on a bulletin board, but, before "I could bring a lawsuit, the company that had done this had gone out of business," he says.

What is copyright?

Copyright refers to the right to make and distribute copies of one's artwork. It involves the exclusive use of private property. And it often appears in conflict with the computer world, which values usable and immediate public access. "The ethos of the Internet," says Marci Hamilton, a professor at Cardozo Law School of Yeshiva University in New York City, "is that anything online may be downloaded, cut, copied, and sent along to others."

Copyright has proven to be an elastic concept over the two centuries that it has existed in United States law. Statutes first referred exclusively to the printed word but were later amended to encompass works of visual art. They were then expanded to permit artists' ownership of copyright even after they sold the physical artwork, and again broadened to include moral rights (preventing intentional alteration, damage, and destruction of the physical work of art).

Periodic judicial rulings also have widened the scope of copyright protections here and there.

All these changes and additions have given increased control to creators over their artwork. The Internet, on the other hand, makes that control all the more tenuous because of the computer world ethos and the technology to place written and visual information wherever there is a computer, a modem, and a telephone.

Proponents of traditional copyright protections are met by advocates of free access to information, who believe that more information disseminated widely is a public good that should be encouraged rather than impeded by antique legal concepts of limiting the use of intellectual property.

"The underlying theme is that copyright is rather ungenerous," Professor Hamilton states. "Increasingly, the courts have been saying that copyright should not prohibit the creation of interesting, original work."

Creating something new out of copyrighted material may be accomplished when an artist's image is downloaded and appears on someone's computer screen. Basic keyboard commands make all manner of changes, and the resultant work may bear close, moderate, or minimal resemblance to the original artist's work.

"The model that we have in copyright - I have this property, and I can control how this property is used for 75 years - is going to change," says Ethan Katsh, professor of legal studies at the University of Massachusetts, Amherst. "The law should want to encourage people to take one thing and make something new out of it, and the question then becomes, when does something become new. That's a more interesting issue than should the original something be kept under tight controls."

The courts are increasingly of the same view, limiting the ability of copyright owners to seek injunctions against the unauthorized use of their work. As a result, a number of arts advocates are calling for solutions that don't contest infringement as much as ensure that artists will be paid for the use of their artwork, however it is used.

"If you can't fight them - and right now you can't - join them," says Martin Bressler, vice president of the New York City-based Visual Artists and Galleries Association.

ASCAP didn't try to fight the technology of radio and records but worked with broadcasters to establish a royalty system, setting up licensing arrangements with the distributors.

Compulsory licensing

Under current copyright law, artists and other copyright owners may seek not to prohibit the use of their work but to receive remuneration through compulsory licensing, which requires those who make certain uses of copyrighted material to pay royalties (predetermined by the US Copyright Office). The basis of compulsory licensing is the belief that the public's interest in free access to copyrighted material outweighs the copyright owner's rights to control that access. In the area of the new computer technology, that appears to be the growing sentiment of the courts.