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Copyright or Copywrong? Remarks on the Challenge to the Sonny Bono Copyright Term Extension Act (Eldred v. Ashcroft) from the Perspective of the Art Historian Based on a talk by Chair of College Art Association, Committee on Intellectual Property. Presented at an evening conference sponsored by the International Foundation for Art Research (IFAR)
Replicate these stories by the hundred and it becomes clear to what extent the weight of expanding copyright inhibits the ability of scholars to examine current and past issues. It limits speech. There is a rippling effect too. As it becomes ever more challenging to bear the costs of obtaining publishing rights, young scholars experience increasing difficulty meeting the requirements needed for advancement and tenure – a consequence of our revised copyright culture, to be sure; but more significantly, evidence of how market fundamentalism ignores crucial social, democratic and ethical values. Examples concerning access to visual resources for teaching: [n0004]
Examples relating to faculty issues and scholarly publishing:
For some time, now, scholars and teachers have been watching their traditional rights and long-time exemptions fade away in the face of increased pressure to subject the materials used for teaching and research to the demands of copyright owners – in spite of the specific fair use exemptions statute specifically reserves to creation, education and commentary. Under the current tight regime, fair use and the public domain have become key resources for the non-profit world of teaching and scholarship, and crucial for the creation of new art; but fair use has proven difficult to claim, resulting in increasing levels of self-censorship – anathema to respectable scholarship. [n0008] To many of us, the Sonny Bono Copyright Term Extension Act came as the last straw. If the withering of the public domain is not halted now, when will it stop? If Eldred does not succeed, what will prevent Mary Bono and her friends in the entertainment industry from extending copyright (as they propose) until it lasts "forever less one day"? [n0009] The deceptively humanistic argument suggesting that copyright should cover two generations past creation reveals itself as a sham – a transparent metaphor that served only to ratchet fifty up to seventy – a device that gives a human face to a corporate mission – a device that will evaporate as a rationale as soon as it becomes an encumbrance to requesting an additional twenty or fifty years. The European Union is already dissatisfied with life plus seventy. [n0010] Will our struggle to "harmonize" with copyright terms offered by the European Union lead into a self-destructive cycle of chiseling at the borders of the public domain? During the Eldred hearing, the Supreme Court wondered what kind of chaos would ensue if our successive copyright extensions were to become unraveled by an Eldred success; they did not ask what kind of calamity would follow in the footsteps of a government triumph. Those of us who use the arts as a source for creativity and understanding have placed our faith in the so-called "constitutional copyright bargain." We agree to honor copyright for a limited time, because we know that its incentive to create feeds the public domain. It is the vitality of the public domain upon which much of the success of our discipline relies. As fair use is becoming an ever-diminishing option, it is clear to us that reliance upon the public domain is increasing in importance. But, under copyright extension, as the public domain recedes further and further from our grasp, the raw materials needed for creation and comment are becoming increasingly unavailable and consequently less useful. Acknowledging how creators of new works are multifariously dependent upon the example of others, I think, as a class, we would all tend to agree with Jessica Litman, who exclaimed some time ago that "a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all." [n0011] Copyright needs the public domain as a nourishing font from which to draw sustenance. I wonder when the copyright cartels will discover that their push for ever-expanding periods of protection is but a self-defeating exercise since addition multiplies levels of rights administration (and costs) and therefore ultimately impedes access to the past. Following this thought, under the weight of extended copyright’s mounting obligations to identify sources, to track and pay for rights, the wisdom and meaning of the hotly-debated Constitutional phrase, "limited Times" becomes crystal clear. * * * I see that in the roster of speakers tonight, I am the only one who is not an attorney, and so, as you are about to learn, I won’t be presenting the merits of Eldred v. Ashcroft as College Art sees it – at least not as a technical legal argument. But I would like to give you some of the root thinking behind what I believe our purposes were in supporting Eldred, at least to the extent we did. But, before I begin, I must mention that I am not here speaking on behalf of the College Art Association. The opinions I present are my own – but, thankfully, not mine alone. Also, I’d like to tell you that the CAA amicus was undertaken by Jeffrey Cunard and his staff from Debevoise and Plimpton. Jeff and his firm offer their services to CAA pro bono. [n0012] The Sonny Bono Copyright Term Extension Act affects copyright in two fundamentally different ways. On one hand it extends copyright for all works created from the time the law took effect, onward. On the other hand, it retroactively extends protection for all works then currently under copyright – works that had already been created. This means that any work that had been due to be elevated into the public domain just as the CTEA became active, has had its copyright extended by an additional twenty years – thus pulling the rug out from under expectant scholars and artists. College Art chose to address only the retroactive portion of the act. Their primary complaint relied upon the restriction to free speech imposed by taking away a right that had already been scheduled by law and that removal of this right forces self-censorship. Their brief alleges that content-neutral regulations of speech (as is the CTEA) are constitutional only when they further a substantial government interest unrelated to the suppression of free expression. In the case of the CTEA, the only reason for extending copyright was to give twenty years of added revenue to a few copyright holders – there was no substantial government interest. Additionally, there was no judicial analysis (as required) of the effects consequent to rescinding these rights. The impact on the public was not considered. This is enough, I’m told, to invalidate the act and to remand it for reconsideration. Retrospective extension alone was targeted for First Amendment analysis because it seemed inappropriate to claim that free speech was affected with regard to works that had not already been created (the prospective lengthening of the duration of copyright). Moreover, it is an established principle that copyright imposes certain acceptable restrictions on free speech. [n0013] In addition, College Art maintains that, because in the US copyright exists to encourage creativity, arguably it seemed inappropriate for the act to extend the duration of copyright in works that had already been created. If extension of copyright to seventy years beyond the death of the creator is found to encourage more creativity than would a period of only fifty years beyond the death of the creator (as unlikely as that might be), it would be harder to claim that copyright extension served no purpose. Granting that, it is hard to comprehend how artists who created the class of retroactively extended items – artists who have been dead, now, for fifty years – under the CTEA would be receiving any encouragement to create new works. The heirs may have been given additional time for exploitation – but that is quite different than being encouraged to create. [n0014] Many of us are suspicious of the validity of the European principle that copyright is an entitlement and a property that ought to be handed down through the generations. Our national ethic is (or was, anyway) uncomfortable encouraging the creation of long-lived hereditary estates. Constitutionally, copyright confers a bundle of rights. It is a temporary monopoly – the ultimate purpose of which is to serve the public good and promote progress by feeding the public domain – the contents of which, by the way, were originally simply called "public property." [n0015] If the ultimate purpose of copyright is to serve the public good, it does this by recognizing the need to indulge private needs for a "limited time." Many do not accept the argument that extending the period of copyright for this class of works encourages creativity or progress because it increases the right to exploit their economic potential. (Will artists refuse to create unless they get life plus seventy?) Anyone can exploit the potential of a work in the public domain. Indeed, the public domain encourages new creation because it promotes the formation of marketplaces where a variety of competing strategies can co-exist by serving multiple needs and market strata simultaneously. [n0016] The sooner a work becomes public domain, the sooner its influence can radiate through society, thereby fulfilling the Constitutional mandate “To Promote the Progress of Science and useful Arts.” When the benefits of Copyright Extension are compared to the consequential loss to the public, the unfairness becomes apparent. While lengthy copyright may increase the incentive to exploit a work, it actually can decrease the incentive to create. Creators should not be encouraged to rest on their laurels through the mechanism of bestowing unnaturally long copyrights. The user communities believe it is time to say enough is enough. Copyright Extension forces the public good and the private good to clash head-on. The domain of works of interest to scholars often is quite distinct from the kinds of works that copyright extension was intended to protect. Moreover, the Constitutional mission to promote an informed citizenry is not coincident with exploiting works for their maximum return. Educators and scholars need access to, and use of works that frequently have no economic value; but lengthy and extended copyrights do not distinguish between works with and works without financially viable potential. By giving commerce the right to squeeze the last penny’s-worth of value out of protected works, the ability of scholars and others to use works of significant cultural interest – works that do not easily reveal the provenance of intellectual ownership – works for which it may be impossible to obtain permission to use – works that often have no market value – is severely inhibited. Moreover, fair use doctrine tells us that the public interest should often outweigh the "exclusive" rights of copyright holders; but fair use, today, is distinctly dysfunctional. Copyright does not necessarily promote speech (as some argue). In these instances, copyright limits free speech in such a way that it is damaging to the success of our democratic mission. [n0017] Finally, in choosing to target retroactive extension, it was felt that CAA’s artist constituency would probably be more comfortable supporting an effort that did not challenge extension to copyright for works that they might create in the future. [n0018] In my opinion, so many scholars and teachers and artists are suffering the ill effects of lengthening the duration of copyright, that they would have gladly signed on to challenging the act as a whole, believing it to be a law that sabotages the Constitution’s intent to balance private and public rights, but it was felt that the court may not look favorably on a constitutional challenge to the added length of new copyrights, based, in part, on their possible interpretation of the phrase "limited Times" as one that requires no more than each increment of each copyright extension be limited, and that making such an argument at this time might only serve to dilute the effectiveness of the tactic we chose to pursue. * * * We have been asked to discuss the impact this case may have on the arts community. The response depends, of course, on how it is decided. I’m told that those who closely followed the court arguments predict that Eldred has little chance of success. Accordingly, I think our discipline must consider what might be in its future under a regime where the duration of copyright can be extended in finite quanta indefinitely – not an altogether unlikely scenario. So you’ll indulge me if today I just assume the worst, paint the blackest picture, pessimistic that mitigating factors, such as vast increases in the funding of scholarship and education for the payment of royalties, or that a new public-minded spirit will spread amongst those copyright owners whose goal it has been to harvest the maximum return, will emerge to temper the outcome I portray. [n0019] The effects described below, let's say, are at once "not incompatible" with, and likely to be encouraged by the extension of copyright beyond current levels. As I write, one such mitigating event has occurred; the TEACH act has been signed into law. This will ease the restrictions on using copyrighted works in distance education, but "distance education" is narrowly defined and doesn’t begin to approximate classroom necessities. Moreover, operating under its provisions would seem tacitly to endorse the claim of copyright owners for many uses that ordinarily should be acceptable under fair use. [n0020] Projecting from current experiences, I suspect that the eventual consequence of an Eldred defeat will be wide-ranging and devastating. When combined with the power that the Digital Millennium Copyright Act has given to those who provide on-line access, and with the general fear of claiming fair use, a defeat will seriously change the face of teaching, art education, research and their supporting industries – in the end forcing art education to be subject to the laws of an economic jungle incompatible with its educational mission. Already the added length of copyright has created virtual monopolies in works needed by educators. Under its expanded power we will be in jeopardy of returning to the period when French and English printing guilds exercised their monopoly powers to control access to works and to manipulate the distribution of thought expressed in them. The threat is one that undermines our precious traditions of free access to information and the right of self-expression. Carried to its extreme, it is inimical to the principles of free expression we expect democratic societies to hold dear. A government win may well embolden publishers and rights-holders. For instance, licensing might be used to chip away at our first sale doctrine, the theory that allows libraries to lend books they own. For allowing patrons to read books for free, publishers have already branded librarians with the "terrorist" epithet. [n0021] I see heirs of dead artists becoming ever more aggressive and vigilant in their efforts to squeeze every last sou out of each and every educational user. Fair use in the electronic environment will become only a memory, so that the only viable, institutionally sanctioned alternative to paying the fees requested might be to decide not to teach certain materials at all. Teaching modern art, and the ideas that spring forth from these works may falter – beginning with the less well-endowed departments. Heirs may decide that certain works will not be made available at all. In some cases heirs will employ their right to control the attribution of works (as some already do) and, therefore manipulate the market in works offered for sale or auction. As people become accustomed to paying usage fees, use of intimidation to induce payment of unwarranted or questionable royalties will increase. How sad that the moral debt owed to the body of critics, curators and art historians that championed the modern movement, that helped built reputations and fortunes, has been all but forgotten. When information access becomes overwhelmingly fee-based, schools will suffer, and the rich tradition of independent scholarship will become even more severely hobbled than it is now. [n0022] Monopoly eventually reduces demand, in due course killing off need. Visual resources collections, so crucial to teaching, unable to claim fair use, will tend to be site-licensed, rather than owned. The distinction is fundamental. Owned collections encourage individual creativity and ingenuity. The individuality that has played such an important role in building collections will diminish. Institutions will have few rights that survive cessation of license. Without this guarantee, custom cataloging will disappear, too. Access to the visual documentation of untold numbers of faculty initiated scholarly efforts will be made unavailable or be proven incompatible with collection development guidelines. In their efforts to control the economic vitality of their holdings, it will become ever more advantageous and feasible for rights-holders to regulate what is said about the works under their control. Admittedly, application of such thought-control won't be frequent, but when it does occur, it will tend to poison the well so that scholars, finding some areas less hospitable to their creative input, may eventually lose interest and focus their attentions elsewhere. Works that are available primarily to educators will tend to be those pre-selected by site-licensors. Without other sources, the incentive to teach creatively will be diminished, thereby. The practice of art history could easily drift imperceptibly from a calling to understand society to a kind of art appreciation (or art history appreciation), based on the familiar so-called key monuments – the pictures of which will be in sufficient demand to make their widespread distribution economically feasible – in contrast to the "lesser" monuments. In a license-only environment the process of collecting teaching images for seminars and specialized courses will become a forbidding and expensive endeavor. Market forces may influence the content of teaching. Administrators may influence the design of curricula, weighing the pros and cons of their decisions based upon cost benefit analyses. For many, art education will transform itself into a kind of art entertainment, much as televised history programming sometimes re-channels history to fit into conventional literary and moralized formats. Works of corporate creation will be virtually immune from serious scholarly scrutiny. When creative artists are no longer comfortable relying upon fair use, and when the public domain, as a universal resource, is receding ever further from their grasp, those remaining remembrances of events, ideas and trends and the aesthetic solutions that others have developed to represent them – the raw materials of visual creation – will struggle hard to manifest themselves in new art. Removal of the cultural fodder from which all creation germinates will bequeath an ironic legacy. Under such circumstances art will be encouraged to say more and more about nothing and less and less about something. Thus, in the extreme, creative artists, wary of the hazards of incorporating the lessons from the present and near past, will have to invent new creative strategies – not as means to enable self-expression, or for exploring their aesthetic goals, but rather, as a way of avoiding minefields laid for them by our legal system. Under such a regime, the vitality of our artistic environment may fade and what passes as quality may be more closely allied to the achievement of financial viability, giving added weight to the significance of ephemeral trends and fashions. Today we still tend to think, romantically, that much art addresses some portion of the inexplicable, and points to the center of our personal or cultural being, tying us in this way to our outer and inner worlds. Tomorrow, as the creation of new works becomes weighed down by the responsibility of tracking and identifying sources and paying royalties, only those who have resources will be able to afford to create in the traditional manner. Many of these creators won’t be able or willing to take chances. When art becomes overly involved with the administration of rights, we may lose the flow of folk artists, and others who rise periodically from America’s grass roots. [n0023] With so much at stake, or due to the high cost of "infringement insurance," success must be pre-assured; artists may need publicists. Here, Thomas Kinkade will lead the way. Quality and profundity may no longer be serviceable goals when competing with the guaranteed benefits of popularity. Thus, it is possible that art creation and art commentary may lean toward becoming the same kind of synthetic product that has taken hold of the cinema and popular music industries. Works of art may become the products of studio mentalities. Scholarship and spin at times may be indistinguishable. Our reliance on authority and authenticity at times will be undermined. Unbridled monopoly tends to foster disrespect. As the public domain recedes ever further from our grip, faith in the copyright bargain will also fade. Because no longer will there be an apparent quid pro quo in the bargain, the institution of copyright, itself, will fall into disrepute, and will doubtlessly spawn an underground of copyright deniers whose currency is cynicism and distrust – a paradoxical effect – and (speaking frankly) one that will serve as Napster’s ironic revenge. These artists and scholars and resource curators whose furtive expressions and creations and collections at best will ignore copyright, when uncovered, no doubt will be vilified by the copyright industries as thieves, pirates and terrorists – no mater how noble their aims. That’s the trouble with market fundamentalism (and all fundamentalisms); they rarely look at the big picture and are unlikely to account for the complexities of human needs and values. They breed intellectual isolationism and disassociation – their adherents failing to acknowledge debt to society. The isolationism bred by economic fundamentalism threatens creativity. In the end, the Eldred challenge may fail; copyright extension may be judged to be legal; but, if it is, at some point it will unveil itself as very bad public policy. [n0024] * * * But what if the prognosticators are wrong, and the Court favors Eldred? On its face it would seem that not much would change. Perhaps the term of copyright will be held fast to death plus fifty years. If so, creeping copyright escalation might end and works will begin to enter the public domain as they were once scheduled. Yet, the forces seeking to end all "market failures" (the industry code term that includes "fair use"), will continue, trapping scholars in an ever more finely woven net of restrictions and prohibitions. It’s unlikely; but what if the court goes further and uses this opportunity to define a theory of the public domain, giving teeth to the assertion that the public domain is public property; indeed, affirming that all works are born belonging to the public, and copyright is but a temporary license given by Congress in order to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In that case, it would not be so easy to treat the public domain as an undefined wilderness, there for unbridled exclusive exploitation by intellectual property colonialists. If this happens, the world of expired copyrights might come to be understood, not as a repository for useless works and "orphans," but as a nourishing, fragile and valuable public resource that needs government support and protection, a resource that must be treated as a public trust, a resource that cannot be given over to exclusive private interests without due process of law and without equitable compensation to the public for their loss.
Notes: 0001. An art historian’s book has been accepted for
publication by a reputable academic press. As is customary, the author is
obliged to clear picture rights and pay the cost of royalties – a problem
in itself. 0002. An historian is publishing a study of art created during the Depression, with special emphasis on the aesthetics employed in documentary photography. Were it not for the provisions of the Sonny Bono Term Extension Act, these works would soon be passing into the public domain and be made available. But, because their copyright has been extended by twenty years, permission of the copyright owner is required to publish them. Unfortunately, many of these works (as are most works under copyright) are either anonymous and resist attribution or have authors or heirs who cannot be found. So, for the reason cited above, no publisher would assume the risk of publishing them. This study and many similar projects will have to wait for someone else, for someone working much later and much further removed from the events and period in question. Under the CTEA, this valuable opportunity could be lost. See CAA Amicus, p. 7. [text] 0003. A well-known scholar whose book on modern art
has enjoyed a modicum of success (for which he can only claim financial
loss, due to the costs of rights, which he must bear) is about to produce
a second, revised edition. To his amazement, the costs of second-edition
image rights has skyrocketed, sometimes reaching ten times the original
fees. Unless he obtains outside financial support, this book will never
again see the light of day. Financial support sometimes comes at a price –
the assignment of copyright to the granting foundation. Heirs who still
control rights exercising their power of monopoly are telling us that
profit is the overriding criteria when granting rights. Authors of second
editions have placed themselves in a seller's market. While, the cost of
obtaining rights is killing the incentive to produce new works, academic
scholars are yet forced to publish to maintain their professional
viability. Nobody yet knows the long-term consequences of this rock and
hard-place scenario. I see it as a case of "biting the hand that feeds
you." Our copyright society has erased the traditional distinction between
educational, scholarly usages and for-profit usages. 0004. Teaching the history of art is not just an
intellectual endeavor but also a workshop craft, one that heavily depends
upon the tools, methods and resources developed by predecessors. Teaching
is the fertile ground from which new ideas are developed and tested before
audiences. Most people tend to believe that teachers think, write and then
teach – in that order. While that certainly describes some teaching, the
creative teacher more frequently begins with teaching and ends with
writing and publishing. 0005. During one of the meetings of the government-sponsored Conference on Fair Use (CONFU), which ended in May 1998, a representative of the copyright industry traumatized academe by claiming that the only legal way to show an image without paying a royalty was by holding an open book up in front of a class. Under such pressure, and fearful that their traditional practice of "copystand photography" (copying images out of books) for use in the classroom will not continue to qualify as fair use (or, at least, might put the art department into potential jeopardy) schools began to protect themselves by, among other things, prohibiting copying images out of books. Fear drove one school to pass title of their entire collection to a faculty member – poor enough to be functionally immune to the negative outcome of a potential suit – or so went their thinking. [text] 0006. Another school, similarly advised by counsel, is now forcing (at great expense) its art department to obtain permission to use (use by use) each image to be employed in a class. When a work is not in the public domain, rights holders to the images, and rights holders to the original works must be queried. It is not yet known what will happen when rights-holders don’t respond or if they want more money than the department can afford. Rights to use images of works still under copyright will be most difficult to clear, since they need be cleared twice. Based on the experience of the publishing industry, it might take as long as two years to clear works for a single course. Rights administration undoubtedly will overwhelm the capacity of departments both large and small. Under this regime, art history teaching will no longer be able to respond to the issues of the moment. The vitality of the discipline will diminish and the critical mass of students needed to maintain the discipline may be lost. Do we want our curricula to bend to economic pressures such as these? Perhaps someday, based on cost projections, some schools may have do decide not to teach Picasso. [text] 0007. From the beginning of time artists have developed by closely monitoring and incorporating the lessons of their contemporaries and forbears. Recently they have been severely hit by the increasing levels of vigilance employed by previous artists and their heirs. Artists don’t create in a vacuum; they respond to their society and to their changing visual environment. The call to monitor their sources, and even to identify them, is having a chilling and stultifying effect – going so far as calling for a kind of revolt against copyright – as may be surmised from an exhibit scheduled to appear in New York (November 13 - February 25, 2002) on "Illegal Art" – art that tackles the behemoth of copyright itself. High profile cases such as those against Andy Warhol and Jeff Koons have had serious intimidating effects on younger artists – seriously eroding their self-confidence and limiting their possibilities. See especially, William M. Landes. "Copyright, Borrowed Images and Appropriation Art: An Economic Approach," John M. Olin Law & Economics Working Paper No. 113 (2nd Series), Chicago [ca. 2000] This article argues (among other things) that appropriation of copyrighted works, in and of itself, may not be a licensable event. It is only when the appropriating artist receives vast economic benefit from the appropriation, or when the work is distributed in large quantities – making the process entrepreneurial – that licensing may be required. The presumption maintains that borrowed sources can be identified. Incorporation is often subconscious, however, and memory is short. [text] 0008. The issue is in legal stalemate. There is no case-law on the question of the fair use status of visual resources collections because rights-holders don't wish to chance a loss, being satisfied with the aura of paranoia produced by the threat of infringement action. On the other hand, despite the support of a few university counsels, the educational establishment is not looking for a ruling either – fearful that a court might settle the issue in favor of rights holders. [text] 0009. From the Congressional Record: "Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's [of the MPAA] proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." As quoted from web page "Pirate's Little Helper." http://www.swcp.com/rtoads/toad5/pirate/bono.html (Congressional Record of the House of Representatives, October 7, 1998) [text] 0010. As reported by Lawrence Lessig in the Financial Times, 10/16/2002. He says: "For almost a decade, the European Union and the US have pushed each other to extend the terms of existing and future copyrights. First came an EU directive in 1993, which increased member states' copyright terms to the life of the author plus 70 years. Not to be outdone, the US Congress followed in 1998 with the Sonny Bono Copyright Term Extension act, which slapped an extra 20 years on previous limits. Many Europeans are now pushing for another extension, and so it has threatened to continue." [text] 0011. Jessica Litman. "The Public Domain," Emory Law Journal, Fall, 1990. This dilemma is clearly described in the on-line Wikipedia: "...some works created under time-limited copyright would not be created under perpetual copyright because the creator of a slightly derivative work does not have the money to purchase a license from the creator of the original work, or the creator of the original work might refuse to license a use at any price. One can thus argue that a rich public domain is necessary for artistic creation." [text] 0012. I’m told that of all the briefs offered in support of Eldred, the one representing CAA is the only one written by a law firm and not by academics. Fact finding for our brief was achieved by asking the membership to identify areas in which Copyright Term Extension has affected their ability to carry on their research and has restricted their scholarly and teaching activities. Although we did not ask for the kind of "visual resources" examples that I described above, the issues pertaining to this phase of our discipline are not considered unimportant. Indeed, the Visual Resources Association (image curators) signed onto our amicus brief. [text] 0013. The immunity of copyright from first amendment scrutiny is based upon the principle that ideas are not copyrightable, so only expression is protected, which means that any idea expressed in a copyrighted work can be communicated without seeking permission. But how does this immunity translate for visual works, where the idea and the expression are not so much a dichotomy as a unity? How can you communicate the idea of a visual work, except through its expression. Another factor that may weigh in on the issue of copyright's immunity to the first amendment may be the temporary nature of copyright. [text] 0014. The amicus submitted by Senator Orin Hatch argues that the right to exploit a work adds to the constitution's mandate that copyright encourage the promotion of the progress of Science and Useful Arts. See Hatch Brief, Summary, p. 2. Countering this argument one can claim that if a work has the ability to promote the progress of Science and Useful Arts, it need not be copyrighted to so. Once in the public domain, untold numbers users will come to make it useful. The Constitution merely provides the encouragement to create the work, and offers a suitable length of time for the maker to have an exclusive right to use it. [text] 0015. Tyler T. Ochoa, "Origins and Meanings of the Public Domain," 28 U. Dayton L. Rev. (forthcoming 2002. Draft manuscript, on file with author. tochoa@law.whittier.edu.) p. 14. [text] 0016. Among the benefits of progress encouraged by extended copyright that Sen. Hatch mentions (and often cited by Jack Valenti of the MPAA) is the benefit of film restoration. The theory is that to invest the funds needed to restore films at risk of being lost, the restorer needs to be secure that he has exclusive control over the film to guard against its being lost to the public domain. I wonder about that excuse. The film owner presumably has physical control or access to the raw materials needed for restoration. He has the right to control who uses it. Restoration is a creative process, and restored films already produced include new edits, the addition of footage previously cut from distribution copies, and historical materials, plus director sound-over notes, etc. That package is itself copyrightable as are the individual components. The likelihood of serious competition is small, and any competitive product carved from what would be available in the public domain, doubtlessly will be of such inferior quality, and non-competitive. Even so, such products may fulfill needs that the "authorized" product cannot. The greatest risk is that film stills will begin to circulate. A smart business decision would be to allow the film to enter the public domain, and take advantage of the production of inferior releases and the consequential additional publicity to increase awareness of the superior, authoritative product. Someone who buys a five-dollar public domain version of a film may be enticed to upgrade to a finer, more complete and archival version. A group of film restorers filed an amicus in favor of Eldred, arguing that there are many valuable films that remain unavailable precisely because they are under copyright – adding to the likelihood that they will not be saved. For these, entry into the public domain, is an advantage that promotes restoration in instances when copyright owners would not risk the expense. [text] 0017. In court questioning, Justice Breyer’s offered a financial analysis of benefits that might accrue to copyright holders during the extra twenty years in question, and compared them to the losses and added expenses the public must endure. In this analysis, the public lost more than owners gained. [Official Transcript Supreme Court Hearing Eldred v. Ashcroft,] p. 30, line. 9 ff. [text] 0018. Landis (op. cit., p. 8 and n. 34.) argues that most of the royalty income to be generated from works under copyright is received in the first few years, becoming negligible in the period from fifty to seventy years after the death of the creator. When copyrights could be renewed to extend protection from 28 to 75 years, most registered copyrights were never renewed. According to Landis' calculation "over 93 percent of the value of [a] copyright is received in the first twenty-eight years." There is minimal added incentive to increase copyright beyond the 28 year period. [text] 0019. The foregoing is an exaggeration, of course. There are agents of copyright holders, and holders, themselves, who try to accommodate scholarly needs by discounting royalties, waiving fees, and even ignoring obvious fair uses. Museums, will sometimes waive usage fees for certain journals. These examples notwithstanding, egregious practices abound and these is little sign that they will abate with longer copyright terms. Consult the amicus brief submitted by the College Art Association for some specific examples of the misuse of rights. See, especially, p. 5 ff. [text] 0020. On the the Technology, Education and Copyright Harmonization (TEACH) Act, see especially a web page and related materials posted by the American Library Association, and prepared by Kenny Crews. [text] 0021. Representing the Association of American Publishers, Pat Schroeder, as reported in an article appearing in the Washington Post (February 7, 2001, p. C01) explains that publishers have a "serious issue with librarians" because in lending books they permit multiple readers to access a minimum number of purchased copies. The rhetoric was escalated another notch or two when Judith Platt, speaking for the AAP, demonized librarians for wanting to allow people to read books for free, comparing them to terrorist organizations opposed to the basic principles of the American System. (Reported by Lisa Bowman to CNet News: "Library 'radicals' targeted in latest copyright battles," July 12, 2001). See further, this author's "Reconstructing the Public Domain" (op. cit., n. 24). [text] 0022. Independent scholars frequently do not enjoy the kinds of electronic library privileges given to individuals who are registered as members of specific academic communities. Most of the standard databases and searching tool are not available to them. [text] 0023. Imagine a scenario such as the following: An artist creates a work that incorporates the copyrighted materials of other artists. Because his work is a unique item, it is likely that it can be exhibited, and perhaps even incorporated into an exhibition catalogue under fair use – assuming that a publisher will assume the risk. The work has no popularity for many years, but, say, after the artist's death it is rediscovered, becomes popular, reproduced and merchandized, but nobody involved in its commercial afterlife realizes that some of the elements are derivative of contemporary works. But the heirs of one or several of the artists whose works were adapted, do become aware and sue for infringement. Because the normal process that artists use for new creations does not necessary call for an analysis of adaptations, is it necessary to force artists to prepare for an unlikely commercial future of each work they create? Would this kind of analysis serve the goals of artistic creation? [text] 0024. See especially, Siva Vaidhyanathan. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, NYU Press, New York, 2001. [text] Selected links
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