(I’m working through a set of preparatory questions as I ready myself for an oral exam on Friday.)

What are the major functions of copyright law and in what way have new technologies transformed those functions?

Copyright�s original primary functions were twofold: to promote progress and to protect the Commons. These functions are codified in Title 17: “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In the 1790 code, the Founders promoted a limited monopoly that would encourage production of creative and scientific works, which would in turn enrich the information commons of a foundling nation.

In the 20th century, copyright was largely reinterpreted (in practice, if not in fact) as protection of the author, whether simple or complex. Section 106 secures specific rights for the Author: the right to reproduction, the right to prepare derivative works, the right to distribution, and the rights to public display and performance. The incremental increase of duration terms has reinforced the notion that copyright exists to protect the creator, not the commons.

I wouldn’t say that new technologies have transformed the functions of copyright. Rather, I might suggest that new technologies have reminded us of the original functions of copyright, and are pushing us to reconsider what it has become. Technological developments have transformed the physical nature of content and the means of production, most obviously for works that exist in digital spaces. Digital works facilitate reproduction and derivative works in ways that previous forms didn‛t. It is easier to rip-mix-burn, to left-click-save-as, than it ever was to reproduce a hard copy, and digital reproductions don’t suffer the loss of quality that analog reproductions did. Thus, we’ve been forced to start reconsidering the extent of protection afforded the creator, and how we make something that was developed for print work for something that isn�t really print. Software ain’t literature, but we’re still trying to legislate it as if it were. Are the periods of duration that we found reasonable for print still reasonable when digital reproductions are needed? Is the digital Author the same as the print Author? Both Authors have to eat, so how do we distinguish between them when it comes to rights? Should we distinguish between them at all?, if we want to promote progress in the digital commons? Should code be closed? Should mash-ups be permissible, and is repressing them denial of free speech? What about nonprofit bloggers who want to reproduce art on their blogs as homage?

Technology has not transformed the functions of copyright, but it has transformed the dialogue surrounding it. Eventually, it will transform the policy. In order to do that, the dialogue will continue on for quite some time.