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Prepared by On February 19, 2002, the Supreme Court agreed to hear a copyright case with important implications for academic researchers, artists and other creators interested in using older copyrighted works that were about to become public domain. The case, Eldred v. Ashcroft, concerns a 1998 act of Congress that extended the term of copyright by twenty years. The law applied both to future copyrighted works and to presently existing works. As a result of the law, no works will fall out of copyright and be available for use by the public for another twenty years. Eric Eldred and others objected that the law was unconstitutional because it prevented works from entering the public domain, diminishing access to information in violation of the First Amendment, but did not increase authors’ incentives to create. Although the lower courts rejected this argument, the Supreme Court’s decision to hear the case suggests that there are serious First Amendment and copyright issues. Many organizations are likely to weigh in on the merits of the case on the side of Eldred, including commercial publishers, librarians and various archival institutions. (The motion picture studios, music publishers and representatives of the estates of literary figures are among those who opposed Eldred’s petition for certiorari and are expected, with the Attorney General of the United States, to defend the constitutionality of the law.) The case is also attracting attention from those who believe that the Internet offers a way to preserve older works in digital format. The views of groups of scholars, researchers, artists and others who use copyrighted materials in their own works – and of individuals who are adversely affected by the extension of the term of copyright – could be particularly valuable to the Court, because these individuals have extensive experience with the difficulty of obtaining permissions for use of older works, including photographs and other visual materials, for which it may be nearly impossible to track their owners after many decades. The term extension will only maintain this problem for another twenty years. These individuals can inform the Court about the difficulty of using the "fair use" provisions of the copyright law to protect their work due to the vagaries of the application of that doctrine and the requirements of litigation-averse publishers. In addition, these groups and individuals will be able to explain that an extra twenty years of copyright protection is not necessary to give copyright owners an incentive to preserve their works. The brief would argue that exchanging public access to older works for the windfall of twenty more years of copyright protection for copyright owners is inconsistent with the Constitution’s provisions on copyright and the First Amendment. The retroactive term extension does nothing to increase the value of future works and therefore does nothing to encourage future creators; all it does is diminish the public domain available to everyone. As a result, it curtails the freedom of speech without constitutional justification.
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