A long time ago, a woman and her family collected grains, worked the soil, planted the seeds, and watered and weeded the plot. As they harvested the grain, another family came to harvest that grain saying, "You don't own this. It came from the soil. It will keep us all alive."
Sometime later, a poet and orator performed his works that drew enthusiastic audiences who paid for their pleasure. Later, a young performer found that other audiences would also pay for the pleasure of hearing those words even though it wasn't the poet reciting them. He told his friends, "Only a fool releases his fowl so that others can catch and eat (from them)."
Some time ago, a scribe copied his master's book, saying, "My master has this book. I can copy it through my own labors. He doesn't need another book. We both can read and learn at the same time."
Not so long ago, an advertising director told her artistic director to create a commercial that uses the same sequence of camera angles and set design as a recent movie simply placing their product in each scene. She said, "Those setting and shots are standard fare in movies now. You see them in dozens of movies, and they are taken from movies before them."
Common law has developed and long recognized that soil and grain can be property--possessed exclusively by a person. That (tangible) matter is conserved has become a scientific law. No matter how hard society has tried, matter cannot be copied (even if it can be divided and shared).
Markings, words, expressions, and the like, can be copied. The original--and even a bad copy of an effective original--can make each possessor better, happier, more competent, more secure, and the like. Disseminating effective designs, knowledge, and instructions, makes the community better!
Why should the competent not contribute to the common good of the community?
They are, after all, the most effective and efficient in contributing.… because, unlike a farmer, an author cannot eat his or her produce-- his or her words, marks, or expressions!
Sure, a blacksmith or a shipwright cannot eat their produce either--but they can trade or sell their produce. Common law gives them the exclusive right to decide to who, when, and for what price to trade or sell. But then again, who is going to assure that the blacksmith gets the ongoing benefit of a particularly effective plow design or that the shipwright gets the ongoing benefit of a particularly effective hull design?
Certainly, we can all see that the community will benefit from plenty of plows and fast ships--especially if the supply of plows and ships drives down the cost of them so everyone that wants one can buy one.
Nonetheless, the blacksmith, the shipwright, the poet-performer, or the author, cannot benefit from the special effectiveness of their design if they cannot control how it is copied. They also do not benefit when someone else sells a copy of their product or design in place of the original.
The greater community has recognized that, while some people create because they are internally driven, because they are curious, or because they enjoy attention, the most prevalent motivator for creation and innovation is exchange, that is, payment: Society has recognized that the best (most effective) strategy is to motivate the innovators in the society through payment for as long as they can (working to make sure that they have enough to satisfy their needs for food, shelter, and whatever else for as long as they live).
All states have created laws that recognize ideas that produce tangible innovations are as valuable as any physical property, that give their creators exclusive control over the coping of those innovations, and that give the creators strong remedies when that control is ignored by others. Judges in intellectual property suits side with and protect innovators whenever the innovators can show that idea that created the innovation is their product and their product alone, that the defendant has had an opportunity to view the product, and that the defendant has copied the product.
States have also recognized that the motivation of innovators is not damaged by limiting their exclusive rights to a period of time after which society benefits from the unfettered circulation and application of the innovation. Currently, intellectual properties in the US become publicly available for duplication and derivation 70 years after the death of the creator.
Later, states recognized that limited copying at any time in some situations is very beneficial to society and not detrimental to the motivation of innovators. Those situations are ones that lead to further innovation: teaching, research, criticism, parody, and reporting. Copying is allowed (is protected from punishment) in these "fair use" situations as long as the copier can show that they acted within the preponderance of a set of four limitations:
- The copying has a minimal effect on the value of the work and on the potential market for the work.
- The purpose of the use is primarily educational and not commercial.
- The fraction and importance of the part copied is small compared to the work as a whole.
- The nature, state, or purpose of the original work suggests that the work can be shared.
- Society benefits from engineering and artistic innovation.
- Society benefits most when innovators continue to innovate for as long as possible.
- Innovators need economic motivation to continue to innovate.
- Society needs to help and assure innovators to continue innovating by recognizing tangible expressions of as property that can be possessed, traded, and sold.
- Society can still benefit from innovation after the innovator does.
- Society needs to limit an innovator's exclusive right to copy in certain "fair use" situations and protect other innovators that can use limited pieces of another's innovation to create other simultaneous innovations.
- literary works
- musical works and lyrics
- dramatic works with any accompanying music
- pantomimes and choreographic performances
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
The ideas in the above text come from and are expanded in the following resources:
- The US Copyright Office web site:
- Copyright Clearance Center:
- Paul Goldstein, Copyright's Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox, Hill and Wang: New York (1994).
- "Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway", John Delaney and Meredith W. Louis, March 3rd, 2015, http://www.sociallyawareblog.com/2015/03/03/twenty-years-down-the-road-a-qa-with-paul-goldstein-author-of-copyrights-highway/
Michael G. Prais, Ph.D., provides instructional technology support at UIC out of central User Services. He has provided similar services at Roosevelt University, NIU, and Saint Xavier University. Michael started as a faculty member in chemistry at Roosevelt promoting information technologies in a wide variety of courses and becoming tenured and the chair before deciding to leave and focus on promoting and supporting technologies across all departments. He is a chemical physicist with experience developing mathematical models and large scale calculations. Behind it all, he is a teacher who likes helping others understand and use mathematical, chemical, physical, information, and multimedia technologies.
Thank you to Michael for sharing his perspective!
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