Examining an “essential” copyright

The article has been all over the news media, which is unusual for something about copyright. In my RSS feed from a Google search for copyright issues it has appeared at least a dozen times, based on different newspapers that have run it.

What “it” is, is an article from the Associated Press about copyright and the film preservation efforts at the Library of Congress.  Here, for example, is the article on the website of the San Francisco Chronicle, and here it is again from the Seattle Post-Intelligencer.  The article alternates between talking about the LoC’s film preservation project and about copyright protection for film.  The latter is involved, ostensibly, because Congress added motion pictures to the list of protected subject matter in August of 1912, so the article ran on roughly the 100th anniversary of that legislation.

Here is a key sentence from the article, which contains the quote from which the word “essential” in the headline is taken and also some of the confusion of two issues that concerns me:

“Copyright was essential from the very beginning of the industry,” said Patrick Loughney, chief of the Packard campus, a former Federal Reserve bunker… that has been converted into a state-of-the-art archive.  It is a dual safe-haven, intended to protect both the film’s creators and establish a collection that outlasts a film’s box-office haul.

What strikes me as curious is how these sentences are related.  What, specifically, is intended to be this safe-haven that is referred to — copyright protection, or the underground preservation vault?  It is that apparent confusion (toward the end of the article a little bit of light dawns on the issue) that got me thinking about what role copyright plays in the preservation of film.

As a preliminary matter, it is worth noting two points.

First, although the headline says that copyright protection for film is turning 100, that is the anniversary of the legislation; copyright protection itself does not normally last that long, and many of the films being discussed, or that are stored in the vault, are likely to be out of copyright protection and in the public domain.

Second, the role of copyright, and the 1912 addition of motion pictures to the statute, in the earliest development of the film industry is much more ambiguous than this article suggests.  For one thing, the earliest films were registered for copyright well before Congress acted; they were simply registered as sets of photographs.  Thomas Edison was the first to register a film (of a man sneezing) in this way, in 1894.  Filmmakers were thus able to get copyright protection, if they wanted it, eighteen years before Congress acted.  The Third Circuit Court of Appeals upheld the validity of this type of registration in a lawsuit, brought by Edison, in 1903.

But if copyright protection was available prior to the 1912 legislation, its impact may not have been as great as the quote above suggests.  In his book Hollywood’s Copyright Wars, from which the facts in the previous paragraph are taken, Peter Decherney makes the case that the earliest film executives, who began by suing each other over patents and copyright, usually ending by forming associations and arriving at agreements that were much more important to progress than legal enforcement measures were.  This turn toward forms of self-regulation often was the real move that proved vital to innovation and growth; statutory rights and judicial decisions merely set the boundaries that the industry payers then renegotiated.

Now we come to the central issue — what is the role of copyright protection in preservation?  Toward the end of the article we finally get an indication of why the two things have been tied together this way, when Mr. Loughney is quoted saying that copyright “has a practical function.  The physical depositing … of material creates a national archive that can live on for future generations.”  So copyright supports preservation because of its mandate that registered works be deposited with the Library of Congress; it is not the exclusive rights themselves but this “add on” requirement that seems to be the key.  This may indeed be true, but the registration requirement has never been strictly enforced, and under our current regime of automatic protection, registration and deposit rates are minuscule compared to all that is created.

And, of course, actually preserving the materials that are deposited might well have been easier were it not for copyright protections.  The article notes that many early films have been lost, and specifically mentions that nitrate films were not preserved because the medium was so flammable.  One solution to that problem, of course, would be to make copies of those films to a different, less volatile medium.  But to do that might infringe the exclusive rights of the copyright holder.  This is a dilemma that librarians and archivists encounter all the time; copyright creates uncertainty and risk around reformatting, and thus hinders many preservation efforts.  Old films are lost, even today, not just because they were made on materials that deteriorate, but also because excessive copyright enforcement is too risky to make the needed investment in reformatting.

Copyright has certainly been important to the developing film industry, but in a very ambiguous way, as Decherney shows.  It is quite possible that many films were made that would not have been started but for the assurance of copyright protection.  And the deposit requirement has allowed the LoC to amass an important collection.  But it is also true that many early filmmakers were able to get started in business because they could “dupe” other people’s films (just as the early publishing industry in the US often depended on piracy of British works).  And it is true that the collection the LoC holds might be even more valuable if copyright protections had not, and did not even today, prevent or deter reformatting for preservation.