Is it fair to take
away revenue from companies because the copyright on one of their cornerstone
products has run out? Is it fair to let materials like books and movies
moulder into non-existence because they are neither released to public
domain nor perceived to be profitable to their copyright holder? Do
these two issues have to stand in opposition?
Eldred vs. Ashcroft
Eric Eldred runs
a site called Eldritch
Press where he digitizes public domain books and makes them available
- free - to anyone who wants to access them. Not only is he making sometimes
hard to find materials available to anyone with Internet access, he
is preserving materials that might otherwise be lost to the ravages
of time. Many of the works he posts to his site had faded from public
sight over time, and might never have been made available if he had
not.
Before the Sonny
Bono Act of 1998, new copyrighted works were expected to come into public
domain every year. Eldred - and others - looked forward to the new availability
of these works and the chance to re-issue forgotten materials. And this
was where he ran up against Mickey Mouse.
Mickey Mouse's
copyright was due to run out in 2003, along with such desirable properties
as Winnie the Pooh and the song "Yes, We have No Bananas".
(Eldred vs. Ashcroft: a Primer) Several other Disney characters were
bound for the public domain in the next few years, and Disney, as well
as a number of other large media corporations such as Time-Warner, put
heavy support behind the Sony Bono Act to extend copyright yet again
- the 11th time in the last 40 years.
This meant no new
materials would come into public domain for another 20 years. Eldred
and others took the law to court, claiming this extension went beyond
the constitutional bounds of a "limited" period for copyright
to promote innovation. They claimed the crushing of the public domain
stifled innovation and that the continual extension of copyright was
in essence giving copyright in perpetuity.
The Supreme Court
saw things differently, voting 7-2 in favor of the extension. Their
argument was that the Congress has the right to extend copyright, and
that it is not the court's place to decide the length of the unspecified
limited time mentioned in the Constitution.
How does this affect
information access?
This decision means
that all the burden of keeping these materials available is laid on
archivists - if the currently available physical manifestations of these
works are destroyed, all the information contained in them will be lost…forever.
Unless we can expect materials that have been out of print for decades
to become suddenly profitable again, making it worthwhile for corporate
publishers of books and movies to protect them, archivists will be the
sole caretakers of past generations' contributions to our collected
knowledge.
Unfortunately,
in the case of films particularly, these materials are often not in
the hands of skilled archivists. Many films from this period may already
be lost due to material degradation, and even those films now salvageable
may be beyond recovery in another 20 years. The film recordings of an
entire generation could be lost, just to save Mickey Mouse.
As information
specialists, we cannot afford to just let this pass. We may not be able
to convince Disney that Mickey needs to be public domain - and maybe
he doesn't since Disney isn't letting his films rot in their tins -
but we should be working to preserve materials that would otherwise
be lost.
Lawrence Lessig,
the Stanford law professor who defended Eric Eldred et al. in the recently
defeated Eldred vs. Ashcroft case before the Supreme Court, doesn't
believe so. He suggests that there is a simple solution to balance the
needs of the copyright holder against the need of the public domain
- simply charge a tax (or registration fee, if you prefer) 50 years
after publication. If a copyright holder fails to pay the fee three
years in a row, the material would be released to public domain. The
copyright office would keep the list of copyrights on a publicly accessible
website, making it simple to track down the copyright status of any
given material, and if an item is in copyright, to contact the current
holder to discuss use. (Lessig, Eldred FAQ)
Lessig's plan would
not solve all of the difficulties caused by near-perpetual copyright
- such as artist's ability to freely work with older works but would
allow Disney to keep their copyright if they wanted, and would be likely
to release better than 90% of the materials protected by the Bono Act
into the public domain since 97% of books and 90% of films from the
period the act covers are not currently available in any form, (Schultz)
and thus are not earning revenue for anyone.
The New York Times
calls the public domain "the great democratic seedbed of artistic
creation" (The Coming of Copyright…) and claims that the great
experiment of public domain is over now. Unless Lawrence Lessig or someone
like him prevails, they may be right.
"The Coming
of Copyright Perpetuity" New York Times online. Published: Jan
16, 2003.
Accessed Feb 20, 2003 at http://www.nytimes.com/2003/01/16/opinion/16THU2.html
"The Eric
Eldred Act FAQ" The Eric Eldred Act. Accessed:Feb 20, 2003 http://eldred.cc/ea_faq.html
"Eldred v.
Ashcroft: A Primer" washingtonpost.com Accessed: Feb 20, 2003
http://www.washingtonpost.com/wp-srv/technology/articles/eldredprimer_100902.htm
Lessig, Lawrence.
"Protecting Mickey Mouse at Art's Expense."
New York Times online. Published: Jan 18, 2003. Accessed: Feb. 20, 2003
http://www.nytimes.com/2003/01/18/opinion/ 18LESS.html?ex=1043470800&en=
97d153dccaa9d220&ei=5007&partner=USERLAND
Schultz, Jason.
"The Myth of the 1976 Copyright 'Chaos' Theory" Accessed:
Feb 20, 2003
http://cyberlaw.stanford.edu/lessig/blog/archives/jasonfinal.pdf
