The American Century: Business and Globalisation

In the United States the first national copyright was introduced in 1790. It was mostly a copy of the Statute of Anne, with the difference that the 14-year author's monopoly could be extended once with another 14 years at the authors request. It was written just three years after the American Constitution, in which a clause on intellectual property had already been included (article 1, section 8, clause 8):

"The Congress shall have Power To ... promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

The founding fathers were concerned with the dangers of (centralized) monopolies, and they thus determined that copyrights should be limited in time and vested in individual authors only. Also their standpoint - and that of many prominent Americans - was that the United States as a newly independent country could freely print and use foreign literature. Still in 1842 a US publisher declared: "All the riches of English literature are ours ... Why dam the rivers of knowledge ?".

In 1841, as a result of the Folsom vs Marsh case - which was about the publishing of president Washingtons letters for use in a biography - the concept of fair use was introduced into US jurisprudence. With the Copyright Act of 1976 this right of fair use became law, and it was granted depending on: the purpose of the copying (educational or commercial), whether the work copied from was factual or fiction, the amount that was copied in relation to the totality of the work, and the effects that the copying would have on the market for the original work. Another important change introduced by this act was that commissioners, besides employers, were now also considered authors, stretching the limits posed by the Constitution.

By this time the United States had still not signed the Berne Convention, and foreign authors still had no rights unless they published their works in the US first. Many US-publishers however did make use of the Berne Convention for protecting their own works, by simultaneously publishing them in Canada (which did sign the Berne Convention). Over the years however Intellectual Property had become more profitable to the US: movie and television series exports to Europe had risen by 225% between 1984 and 1989, and worldwide exports doubled from that year until 1991 to $2.2 billion. The export of US corporations mainly producing IP was 36 billion 1991, and it grew to 89 billion in 2001 (which is more export than sectors like auto- and airplane-industries generate, but at the US national level traditional industries are still larger). In 1984 some of these corporations, among which Disney and Time Warner together with IBM, General Electric and various other organizations founded the International Intellectual Property Alliance: a lobby organization that wanted and wants the US-government to defend their interests by pressing for more IP rights, both nationally and internationally.

In response to this US Congress signed the Berne Convention in 1986. This happened just before the Uruguay round of the General Agreements on Tariffs and Trade (GATT) was to start. At this round the World Trade Organisation (WTO) was created to replace the GATT treaty. And near the end of it, the US, together with most of the West, pressed for inclusion of IP regulations in the WTO's set of treaties. They were successful and the agreement on Trade-Related aspects of Intellectual Property rights (TRIPs) became a fact. It went into effect in 1995, allowing for a grace period until 2005 before developing countries needed to have implemented strict IP-regulations. And since WTO-membership entailed accepting all WTO-treaties, many developing nations (and other nations like China and Russia) that never would have signed the Berne Convention, now were effectively forced to implement strict IP laws in exchange for access to the world-market. With this the US - who in the past had liberally used British IP - now practically stated: 'do as we say, not as we did'.

And IP-protection went further in the US itself. After extensive lobbying of Disney and others the Copyright Term Extension Act (CTEA) was passed in 1998. It extended copyrights by 20 years to 70 years after the authors death, and to 95 years for corporate IP. This act was also pejoratively named the Mickey Mouse Protection Act by Stanford Law School prof. Lawrence Lessig, as it - just in time - prevented many animation-figures of Disney from falling into the public domain. And in that same year (1998) the Digital Millennium Copyright Act (DMCA) was passed. This act made the circumvention of copy protections (DRM) illegal, even if attempted for legal ends like fair use. It was under this law that in 2001 Dmitry Sklyarov, a Russian programmer working for a company offering e-book decryption software, was arrested by the FBI after giving a presentation on e-book security at a conference in the United States. He was released only after significant public protests, ... and of course because the DMCA did not apply in Russia.