US Copyright extension: NHA report

[AAllan at AOL.COM]

The American Dialect Society belongs to the National Humanities Alliance, an
association in Washington DC that lobbies for support for the National
Endowment for the Humanities and occasionally is involved in related issues.
Here is a related issue that is of concern to scholars. If you have examples
of your own of difficulties with old copyrights, the NHA would like to hear
from you.

Ordinarily I don't post NHA messages, but this one seems extraordinary. -
Allan Metcalf


18 March 2002

MEMORANDUM

TO: NHA Member Executive Directors
FR: John Hammer
RE: Amicus Brief on Copyright Extension

The Supreme Court has agreed to hear the Eldred vs. Ashcroft case in
which the constitutionality of the Sonny Bono Copyright Term
Extension Act of 1998 (CTEA) will be reviewed.  I write today because
the NHA Executive Committee is considering whether the alliance
should participate in an Amicus Brief in support of Eldred.

As you may know, the CTEA was the latest action in Congressional
moves over the years to extend copyright protection.  CTEA was
enacted largely in response to pleas from major corporate owners of
intellectual property although extending copyright to the life of the
creator plus seventy years was based on the argument that American
law should parallel European law on this issue.  The following is
paraphrased from a summary of the issues prepared for the College Art
Association by Jeffrey Cunard, Esq, CAA's legal counsel. (Mr.
Cunard's statement is attached below.)

The act, which extended the term of copyright by 20 years, applied
both to future copyrighted works as well as existing works.  One
outcome of change in the law of particular concern for scholars is
that no works will fall out of copyright and be available for
researchers and other members of the public for 20 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, while not increasing 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.

The CTEA law is not only a problem for scholars and others in
blocking access to a significant part of the intellectual property
created between the 1920s and 1940s, but also by withholding many of
these materials from digitized collections and other means of access
made possible by developing technologies.

Justice Sandra Day O'Connor on the special quality of American
copyright law:   "The primary objective of copyright is not to reward
the labor of authors, but to promote the Progress of Science and the
useful Arts.  To this end, copyright assures authors the right to
their original expression, but encourages others to build freely upon
the ideas and information conveyed by a work.  This result is neither
unfair nor unfortunate.  It is the means by which copyright advances
the progress of science and art."

The College Art Association asked NHA to join in an Amicus Brief on
Eldred.  The NHA Executive Committee is considering joining the brief
and will make a decision on participation in the latter part of
April.  I am writing to the NHA membership on behalf of the Executive
Committee on three points:

1) EXAMPLES NEEDED:   There is a need for examples of scholars and
others who have had their work impeded by the withholding of
materials from the public domain.  Robert Baron summarized the needs
for CAA members as follows:

We need to collect a variety of real-world examples drawn from the
experience and expectations of researchers and scholars who:

* have had trouble tracking down copyright owners of older materials,
which were just to go out of copyright (from the 20s to40s) until the
passage of the CETA in 1998;
and/or
* have had publishers deny them rights to use such works;
and or
* have had publishers tell them that they will not publish scholarly
work, including third-party copyrighted works that were about to fall
into the public domain, unless rights are cleared;
and/or
* were anticipating that works would fall into the public domain. and
were hoping to make use of such works until the extension of the
copyright term.

Please e-mail examples to jhammer at cni.org, or fax to 202/872-0884 -
ATTN J. Hammer

2) PARTICIPATION:  Individual NHA members are invited to participate
directly in the brief as co-signers.  As noted above, NHA's Executive
Committee is moving toward participation.  It should also be noted
that the Association of Research Libraries, in collaboration with
other library and archive groups, and perhaps the American Historical
Association, is preparing an Amicus Brief in support of Eldred.  The
CAA brief will focus on the impact of the CTEA on the work of
individual scholars.

3) Cost:  CAA is interested in spreading the cost.  Mr.  Cunard
serves as legal counsel for the CAA on a pro bono basis but the
expense for preparing a Supreme Court brief necessarily fall outside
such an arrangement.  NHA has agreed, if we formally participate, to
contribute $500 to the cost of preparing the amicus brief.   Whether
or not individual NHA members choose to sign-on the brief, CAA would
welcome contributions.

REQUEST - We urge readers of this memo to pass it along to other
relevant listservs.  In doing  so, please emphasize the need for real
life examples of research problems stemming from the present
copyright extension.


        Brief description of Eldred v. Ashcroft by Jeffrey Cundard

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.