Here is the First Amendment in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
5. How does the First Amendment protect religious liberty?
It protects religious liberty through the establishment clause and the free exercise clause. The establishment clause — “Congress shall make no law respecting an establishment of religion” — provides for separation between church and state. The free exercise clause — “or the free exercise thereof” — means that individuals can hold whatever beliefs they wish on religion or nonreligion and to freely practice those beliefs.
While this is certainly true, it’s not the whole truth. These two clauses certainly explicitly protect religious freedom; all the other clauses, to some extent, implicitly protect religious freedom.
To further discuss this, I’ve parsed the First Amendment into its separate clauses, which I discuss separately. (Note that parsing the First Amendment is a non-trivial exercise and there is at least one other parsing that I considered – if you disagree with my parsing below, I’m most interested in hearing your version.)
Congress shall make no law respecting an establishment of religion
One of the two clauses explicitly protecting religious freedom.
Congress shall make no law prohibiting the free exercise of religion
One of the two clauses explicitly protecting religious freedom.
Congress shall make no law abridging the freedom of speech
Nowadays, when we talk about freedom of speech, we often think of freedom of political speech, but free speech is required for the practice of most religions. Free speech protects the right to preach, to pray aloud, to recite creeds and simply to state one’s religious beliefs.
Congress shall make no law abridging the freedom of the press
Nowadays, when we talk about the press there is almost an implicit assumption that we are talking about the Fourth Estate, that is newspapers and other journals. The framers of the Bill of Rights certainly saw a free press as a protection against tyranny. For example, George Mason in his Master Draft of the Bill of Rights stated “the Freedom of the Press is one of the great Bulwarks of Liberty”.
However the term “press” has a wider meaning, it encompasses the printing press and also applies to any form of publishing establishment.
A free press is required for the printing of religious texts. Restriction of the press has been used to restrict the freedom of religion, and the framers of the Bill of Rights would certainly have been aware of this. For example:
In 16th century England the Tyndale Bible, the first mass produced English translation of the Bible, was banned. Tyndale was arrested by church authorities, tried for heresy, strangled and burnt at the stake.
In 1668, after writing The Sandy Foundation Shaken (a text espousing his Quaker views) William Penn was charged for publication without a license and imprisoned in the Tower of London.
Congress shall make no law abridging the right of the people peaceably to assemble
Nowadays, when we think about the right to assemble, we normally think of political assembly and in particular the right to protest. But we shouldn’t forget that the practice of most religions involves peaceful assembly. Religious persecution has often been carried out by breaking up religious meetings, prosecuting those involved in said meeting, or banning such meetings. For example:
In 1662 John Browne was arrested was arrested on orders of Peter Stuyvesant, Director-General of the colony of New Netherland (now New York) for allowing a Quaker meeting in his house.
In England the Conventicle Act of 1664 forbade religious assemblies of more than five people outside the Church of England.
In 1670 William Penn was arrested, accused of preaching before a gathering in the street. Penn had deliberately provoked the authorities in this way to test the validity of the then new law against assembly.
Congress shall make no law abridging the right to petition the Government for a redress of grievances
What’s this about then? It seems almost unrelated to the other clauses.
In December 1657 by a group of citizens from the town of Flushing (now part of Queens, New York) petitioned Peter Stuyvesant, protesting against his persecution of Quakers. None of the 30 signatories of the petition were Quakers themselves. This petition became known as the
Flushing Remonstrance. Stuyvesant arrested those who presented the document to him, and forced the signatories to recant. Edward Hart, the town clerk, and Tobias Feake, sheriff of Flushing, refused to recant, and spent over a month in prison.
Nowadays we tend to think about the right to petition as a means of achieving political aims and as a means of protecting public participation in government, however petitions have historically been used to protest against religious persecution.
Every single clause of the First Amendment protects religious liberty. Removal of any of these clauses would open the door to a form of religious persecution.
The Statute of Anne, the first copyright law, entered into force 300 years ago today, on the 10th April 1710. It established a copyright term of 14 years, which could be renewed for another 14 years if author was still alive when the first term expired (books already in print were granted a copyright term of 21 years).
The Copyright Act 1814 extended the copyright length to 28 years, and if the author was still alive when the term expired, the right of publication could be extended for the rest of the author’s life.
The Copyright Act 1842 extended the copyright term to the life of the author plus 7 years, or 42 years from the first date of publication, whichever was longer. Posthumously published works were provided with a 42 year copyright term.
The Copyright Act 1911 extended the term of copyright to life and fifty years (with certain exceptions).
The Copyright, Designs and Patents Act 1988 extended the copyright term to seventy years from the death of the author for literary, dramatic, musical or artistic works. If the author is unknown, copyright expires seventy years after the work is first made available to the public. If the work is computer-generated, copyright expires fifty years after the work is made.
In most countries around the world, copyright length is life of the author plus 50 years or life of the author plus 70 years
The first major criminal trial to be held without a jury in Britain for more than 350 years (the Heathrow Airport Robbery Trial) concluded yesterday. Until this case, and since the abolition of the Court of Star Chamber in 1641, all serious criminal offences on indictment were tried by jury. Trial by jury traces its roots back to Article 39 of the Magna Carta signed by King John in 1215.
Trials on indictment without a jury were made possible by The Criminal Justice Act 2003. A judge may now order a jury-less trial in the specific cases of complex fraud and jury tampering.
There has been much discussion about the ramifications of the removal of the right to trial by jury in criminal trials. I think that the right to trial by jury of ones peers is an important right, and I think it was wrong to remove that right.
But, in the context of our situation where we have had our right to trial by jury removed, I want to talk about something else – the form of those jury-less trials.
The jury should be replaced, not eliminated
In a jury trial, broadly speaking, the judge rules on matters of law and is responsible for sentencing; the jury decides matters of fact (by evaluating the evidence). What’s more the jury consists of individuals with varying opinions and backgrounds – the debate that occurs between jurors in the jury room is an essential part of establishing a verdict. A judge sitting on their own has nobody to challenge their assumptions.
When a case is tried by a single judge, both the form of the trial and the dynamic of the courtroom is radically changed.
Part 7 (Trials on indictment without a jury) of The Criminal Justice Act 2003 addresses the problems of complex and lengthy trials and the problems of jury tampering. These are problems resulting from having citizen jurors, not problems resulting from a having a jury per se.
Rather than solving the problems by complete removal of the jury, I believe that the less drastic measure of replacing the citizen jury by an appointed jury should be adopted. In particular:
- The jury should be replaced, not combined with the role of judge. That is there should be a judge who acts as judge in the case, and a separate judge who sits unrobed in the jury box and acts as proxy for the jury. Being unrobed is important, since it is a constant reminder to the court that the judge is acting as jury, not as judge and jury.
- Having said (2), and mentioned the importance of debate within the jury, I think that if the jury is replaced, then it should actually be replaced by at least two judges who sit unrobed in the jury box.
- The sitting judge should treat the appointed jury of judges just like a citizen jury.
- Having three judges for a trial is undoubtedly expensive, but the expense serves as a disincentive to removing a citizen jury.
When I first heard about the Google Book Scanning Program, I thought: They can’t do that, it breaks copyright law. I now know this position is too simplistic.
So why did I change my opinion? Well, I bought an ebook reader. And quite a few of the books that were free were about copyright and copyright law. I read them. To my surprise I found it a fascinating subject. These books included Free Culture by Lawrence Lessig, The Public Domain: Enclosing the Commons of the Mind by James Boyle and CONTENT: Selected Essays on Technology, Creativity, Copyright and the Future of the Future by Cory Doctorow.
As technology advances the law needs to change to keep up. And, perhaps surprisingly, the law has been remarkably good at adapting itself to the advent of new technology. I’ll qualify that: when new broad laws or judgements are made they tend to understand the essence of the new technology and these laws or judgements tend to be remarkably robust, some are even almost prescient (the judgement that software should be protected by copyright law, not patent law, for example). However when new specific laws or judgements are made to address a particular problem the result tends not to be so good.
The pioneers of technology often find themselves in a grey area of the law, or even on the wrong side of the law. Lessig’s and Boyle’s books are full of examples:
- In the early days of aviation it was illegal to fly over private property, since the owner’s property rights extended indefinitely upward.
- When radio started broadcasting recorded music the artists complained that their “creative property” was not being respected and that they should be paid. This claim was rejected (when a radio plays a recording it only has to pay the composer, not the artist)
- Cable TV. When companies first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold.
- VCR. When Sony produced the VCR the film studios claimed that, because the device had a record button, Sony was benefiting from the copyright infringement of its customers. Then MPAA president Jack Valenti warned, “When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of ‘tapeworms,’ eating away at the very heart and essence of the most precious asset the copyright owner has, his copyright. One does not have to be trained in sophisticated marketing and creative judgment, to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense.”
Progress often requires technology pioneers to test the law. If Sony had just acquiesced and said “OK, VCRs are illegal, we won’t do those” it would have been to the detriment of everybody: the general public and the movie and television industries.
As technology evolves, the law adjusts. In the case of copyright sometimes this means more rights for creators, sometimes less. As Lawrence Lessig says in Free Culture:
In each case throughout our history, a new technology changed the way content was distributed. In each case, throughout our history, that change meant that someone got a “free ride” on someone else’s work. In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of “piracy.” In every case, Congress acted to recognize some of the legitimacy in the behavior of the “pirates.” In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake. In our tradition, as the Supreme Court has stated, copyright “has never accorded the copyright owner complete control over all possible uses of his work.” Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates.
The Google Book Scanning Program is just another case where the law must balance the interests at stake. It is certainly in the public interest that our cultural heritage is digitised and made searchable. It’s also in the interests of authors. It’s in the public and authors interest that out of print works are made available.
It’s not, however, in anyone’s interest that Google has a monopoly. But the way to avoid a monopoly is not to stop Google digitising books, but to get more people to do so. Amazon. Microsoft (which only recently stopped its digitization project). Government funded Legal Deposit Libraries (such as the British Library). The EU free access library Europeana.
It seems that after initial knee-jerk reactions people are coming to their senses. In July, Viviane Reding, EU Commissioner for Telecoms and Media, stated:
We should create a modern set of European rules that encourage the digitisation of books. More than 90% of books in Europe’s national libraries are no longer commercially available, because they are either out of print or orphan works (which means that nobody can be identified to give permission to use the work digitally). The creation of a Europe-wide public registry for such works could stimulate private investment in digitisation, while ensuring that authors get fair remuneration also in the digital world… Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic . Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe.
On the 7th of September EU Commissioners Reding and McCreevy issued a joint statement: It is time for Europe to turn over a new e-leaf on digital books and copyright. In it they said:
…we also need to take a hard look at the copyright system we have today in Europe. Is the present framework still fit for the digital age? Will the current set of rules give consumers across Europe access to digitised books? Will it guarantee fair remuneration for authors? Will it ensure a level playing field for digitisation across Europe, or is there still too much fragmentation following national borders? What could be the contribution of Europeana, Europe’s digital library, when it comes to working on a European response to digitisation efforts in other continents? Is Europe’s copyright framework modern enough when it comes to digitising orphan works and out-of print works? These books represent the vast majority of European libraries’ collections (around 90%) . In our view, these books must be recovered and given a new lease of life.
Once again the law is adjusting itself to technology.
I’m a technologist. I love technology. But now I’m starting to love the law as well. I certainly understand why some people have a passion for the law.
On 16 June the Government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy. This report received a lot of coverage in the press because it:
- included proposals to throttle the internet speed of those caught illegally file sharing and allow Ofcom to force ISPs to collect data about those sharing files.
- recommended that every household have access to a connection of 2Mbps or more by 2012.
- proposed that households and businesses will have to pay a £6-a-year tax per landline telephone to extend internet access across the country.
I want to talk about something else: the report also contained proposals about the use of orphan works.
So what are orphan works? An orphan work is a work that is in copyright and where, even after an extensive search, the copyright owner cannot be identified or found.
Orphan works form a large part of our culture and heritage that is virtually inaccessible. These works include books, photographs, movies and television programmes.
These works cannot be used without risk of civil and even criminal prosecution. They cannot even legally be digitized so that they can be searched. The quantity of orphan works is vast: the British Library estimates that 40% of its archive consists of orphan works and the BBC estimates that about one million hours of orphaned programmes are contained in its archives. All this material is effectively lost to humanity. The consequence for film is much more dire: old film deteriorates and will be lost forever unless it is preserved and restored. But no one is going to pay to restore film that cannot be shown.
The problems surrounding orphan works include:
- Some works are physically deteriorating and may be lost entirely before they can be preserved or restored
- Some works are effectively inaccessible to the public. They are only available to those who can access copyright libraries.
- Some works are effectively inaccessible to anyone. They are not indexed, searchable or discoverable so their content cannot be found even by a dedicated searcher such as a historian, filmmaker or publisher with a keen interest in their content.
- Orphan works do not generate income for their copyright holders
- Orphan works cannot be republished, even by someone willing to pay the copyright holder, since the copyright holder cannot be found
You may recall the Mitchell & Kenyon Collection of films that was screened on the BBC a few years ago. The films were rediscovered in the 1990s, after languishing for many decades in the basement of a shop in Blackburn. The films were expensively restored by the BFI (British Film Institute). These films give a fascinating view of Edwardian England and form the largest collection of early non-fiction films in the world. These films date from about 1900 and are out of copyright – this means they can be restored, copied and shown to the public.
Suppose someone found a collection of old films about the Second World War, or the Korean War, or perhaps showing some interesting aspect of our industrial heritage in the 1950s. Could the BFI legally restore and distribute them? Could the BBC show them as part of an educational or cultural programme? The answer is no, not without obtaining permission from the copyright owner(s). But how can the copyright owner(s) be found?
Suppose you found an old photo of your parents’ wedding, taken by a professional photographer. Could you have it professionally retouched? The answer is no, not without obtaining permission from the copyright owner.
When a copyright owner cannot be found projects which might benefit our national heritage are abandoned. Scholars cannot make use of letters, images, books and manuscripts. Publishers cannot republish old works that have been forgotten. Museums are frustrated in the creation of exhibitions, books and websites. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude important source material from their films.
Digital Britain Report and Orphan Works
To its credit the Digital Britain Report looks at the problems associated with orphan works.
The Executive Summary, paragraph 47 states:
we will also make some changes to the legislative framework around copyright licensing, to tackle problems such as those surrounding the use of so-called orphan works and thus help digital markets in those works to develop.
paragraphs 43 and onward in Chapter 4, Creative Industries in the Digital World state:
43. …In order to pave the way for a more effective framework to deal with orphan works, the Government proposes to introduce legislation to enable commercial schemes for dealing with orphan works to be set up on a regulated basis.
…However, the expectation is that anybody wishing to use orphan works will be expected to secure an appropriate permission from the Government first…
Where the Digital Britain Report falls down
The report fails to understand a fundamental point: there is the public interest case for making orphan works more easily accessible and there is the copyright holder’s interest in being reunited with their works, and those two interests are rarely in conflict.
We are currently in the lose-lose situation where works are inaccessible to the public, and where copyright holders are not getting credit or payment for their works. We need to find solutions that work in the public and copyright holders’ interests. Works need to be un-orphaned.
There are two main solutions being proposed, I’ll call these ask permission and ask forgiveness.
This is the approach currently favoured by Britain and the EU. It means anyone proposing to use an orphaned work must as a Government approved body for permission to use the work (after doing a due diligence search for the author).
The trouble with this approach is that it simply does not address the problem. It doesn’t help identify copyright owners. It doesn’t allow mass digitization for indexing purposes. It prejudices the legitimate rights of the copyright holder. It doesn’t address the fact that there are vast quantities of orphaned works.
The latter point is particularly damning. This approach has been adopted in Canada. Since 1990 the Copyright Board of Canada has granted permission for the use of 237 works, these include “the reproduction of Châtelaine magazine covers in a promotional calendar”, “the reproduction of two nursery rhymes in an educational textbook” and “the reproduction of six images of aliens (source unknown)”. This is hardly unlocking the lost works of Canadian culture. (See http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html )
This is the approach being pursued in the US. There, provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of ‘reasonable compensation’ needs to be defined – the US report goes into this in some detail).
Everyone wins. Our cultural heritage is unlocked, and copyright holders can get compensation for their works.
We need a digital archive of our culture that is available to historians, researchers and people who are simply curious. We need a means of republishing orphan works. We need to unlock our lost culture. Let’s not enact legislation that prevents all that.
EU Digital Libraries High Level Expert Group – Copyright Subgroup’s Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works
United States Copyright Report on Orphan Works
Copyright Policy: Orphan Works Reform, Lawrence Lessig’s proposal
Much of the discussion around the release of the Lockerbie bomber has focused on the questions of “Should he have been released?” and “Why was he released?” – Was there a case for compassionate release? Should we ever release prisoners on compassionate grounds? Did Gordon Brown put pressure on the Scottish Government? Was there some kind of deal with Libya?
I’d like to talk about something else: who made the decision to release Abdelbaset al-Megrahi?
The decision to release al-Megrahi was made by Kenny MacAskill, the Scottish Cabinet Secretary for Justice and an elected Member of the Scottish Parliament. A politician. And there’s the rub: as long as a politician is the final decision maker over the liberty or detention of an individual, that decision is politicised. The decision maker is subject to political pressure, and even if they act with absolute integrity, they are subject to political backlash and accusations of political bias.
It is just plain wrong that a politician can decide to release or further detain a prisoner. Such decisions should be made by the judiciary (or in the case of parole, by the parole board).
The decision about whether to release al-Megrahi should have been made by a judge, or a panel of judges.
Much of the discussion around the UK government’s Consultation on Legislation to Address Illicit P2P File-Sharing has been about whether the penalty of internet disconnection is too severe, or about what is or is not legal, or about what should be legal.
I’d like to talk about something else: what happens when someone is accused of doing something illegal. What happens is that we go through the criminal justice system. People who break the law are sentenced by a judge after due legal process. The sentence passed takes into account previous convictions, so repeat offenders are properly dealt with.
The “creative industries” think the law is too slow and want to be able to directly punish people, bypassing the legal process.
The government is proposing that, in the interests of expediency, Ofcom or a government minister can act as judge and jury. There is nothing special about the crime of illegal file sharing that means extrajudicial powers of punishment should be granted either to Ofcom or to ministers.
Once a minister has this power, who’s to say their judgement won’t be biased by, say, the fact that the accused has a blog that is critical of the government.
Mandelson seems to want to create a Judge Dredd for the internet. And the most frightening thing is that, with the current cabinet, he would be Judge Dredd.