This letter written on behalf of the Society of American Archivists expresses one group’s opposition to the CTEA and the need to oppose such a passing of an act. They argue that the law disrupts the balance between public and private interests and will have a negative impact on the public’s use of unpublished materials for teaching, scholarship and research. The point of the Society is to make things available to the public and they believe that such an extension will inhibit their ability to make things available and useable to the public. Maher on behalf of the society argues that there should be a vigorous public domain and protections for the rights of holders of intellectual property as well. They believe that too short of a copyright may discourage new works but too long of a period may limit the creation of new discoveries and Congress must maintain a balance between the interests of authors and the rights of the public. Maher argues that, “no extension of copyright term should be contemplated until there are available solid analysis of the likely impact of such an extension on the creation of new knowledge”. He goes on to say that the Society is troubles by the effect the extension may have on the use of unpublished material that is found in archives and that courts have continues to restrict the application of fair use, which applies, to archives. The final argument Maher makes is that the Society believes that only a few individuals of heirs and corporations would benefit from the extension of such an extension.
This letter is important because it takes the perspective of an organization that finds the passing of the CTEA to be unbeneficial and detrimental to their work. It is important to my paper because it takes a different perspective, a more personal perspective in a sense. The argument they make is not just for the public domain but also rather for the balance which is something that has not been argued for in other articles.
Peter Yu writes that the Supreme Court, in its decision in Eldred v. Ashcroft cited the need to harmonize the United States copyright law with that if the European Union, which is a reason that the CTEA passed in the first place. He writes that Justice Stephen Breyer in his dissent in the case, writes about how the opposite is true even with the passing of the CTEA. Breyer points out that the US and the EU have different copyright terms for a large number of works including, “works made for hire, pre 1978 works and anonymous and pseudonymous works”. Yu examines sound recordings and writes that in the US sound recordings are deemed works made for hire and are therefore protected for 95 years. However, in the EU, recordings are only protected for 50 years. In the US, if the recording is protected by copyright then it does not matter if it is in the public domain elsewhere and if the recoding is imported to the US, then it is considered piracy. Yu points out that harmonization has been held back due to the background of copyright law in different countries. He writes that European copyright law developed from an authors’ right (droit d’auteur) tradition, which includes personal and economic rights while US copyright law emerged from a utilitarian tradition which emphasizes economic rights over personal rights. The US and Europe also differ on moral rights as Yu writes. In Europe, an author, not a copyright holder, has a right to claim authorship and can prevent the use of the name as the author of any work not created by the author. The author also has the right to prevent any damage to his or her reputation. This protection as Yu notes is not available in the US except in instances of visual arts. Yu writes that the Court in Eldred embraced the idea and need to harmonize US copyright law with other countries’ copyright law but it deferred to Congress and Congress has a strong interest in intellectual property, causing it to grant stronger protection than other countries.
This article that comes from a book that Yu is planning on publishing, helps oppose the reasons behind why Congress passed the CTEA. This is crucial to my argument because it questions the Congress and their desires to pass the CTEA. This article opposes a different argument that Congress made in support of harmonization, which is an argument that I make in my paper in support of the CTEA.
James Boyle, an advocate for the public domain, writes in his first chapter, the importance of intellectual property and how it is supposed to not only create incentives for innovation but also to create feedback that, “dictates the contours of information and innovation production”. Boyle recognizes that copyright law is intended to allow an artist to make a living if their works are able to be protected by copyright, however, the extent of the copyright is what he critiques. He writes, “the rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare- restraining the next generation of creators instead of encouraging them”. Boyle believes that the extension of copyright is in the favor of large corporations who wish to seek profit rather than seek creation, which is the basis for the copyright law. He continues to write that he believes that the goal of the system (protection laws as a whole) should be monopolized only as long enough to provide incentives and then should be released into the public domain so that the public can benefit as well. He also points out that for most owners make all the money they will receive within five or ten years and that the remaining years are of little use. Another point Boyle also makes is that there are many works that have unidentified copyright owners or owners that just cannot be found which can be difficult for libraries who need permission to reproduce that material and therefore cannot if they cannot find the owner. This he believes is harmful to the public and does not allow them access to something that one may have permission to use but simply cannot get that permission due to the lack of information about the owner. Boyle argues that the extension of copyright law was lengthened without any evidence that it would encourage innovation.
James Boyle’s argument for the protection of the public domain is convincing and it is convincing as my opposing argument for my paper. He provides an argument unlike other arguments that I have found because he not only discusses the corporate perspective but also the length of time that an owner actually receives payment for his work under copyright law. His argument is important to my paper because it provides a counter-argument that is strong and concise.
This transcript is of the oral arguments made by Lawrence Lessig, counsel for Eldred and Theodore Olson, counsel for the respondent. Lessig, notes that he has come to court in order to challenge Congress’s 1998 Sonny Bono Copyright Term Extension Act, which has extended the term by 20 years. He argues that is violates the 1st Amendment and that this case is about limits to an enumerated power and “it is not about the general power of Congress to exercise its copyright authority”. Justice O’Connor at first has some doubt about the case because the issue of extension has been passed several times by Congress. Lessig agrees with O’Connor stating that he and the petitioners believe that all copyright extension acts have violated the Constitution. Justice Souter questions Lessig and states that Lessig’s argument is based on the possibility of a “kind of causal connection between the extension and the promotion or inducement for the creation of some subsequent work”, however Justice Souter questions why that must be the more plausible reading of the Promotion Clause. Lessig responds by saying that this is a case about limits. Throughout the transcript, the Justices question Lessig on the arguments he makes as to why he is bringing this case before the court and why or why not it should be accepted by the Justices. Olson, on the other hand, argues that Congress has passed several extension acts and that the CTEA is consistent with the previous unchallenged acts. In Lessig’s rebuttal, he states that his argument is simple: “that there is no effective limit on Congress’s power under the Copyright Clause” which is unconstitutional.
This transcript envelops the very essence of my paper. This case is the most important case in deciding the constitutionality of extending copyright law and why arguments have been made against such an act as in the case of Eldred vs. Ashcroft. The 1998 Act protects everything that has been under copyright law for 20 more years, something that the petitioners argue is unconstitutional because it puts no limit on the time of a copyright law which is clearly noted in the Copyright Clause. This transcript is the crux of my paper.
tagged ashcroft ctea eldred by holzberg ...on 26-NOV-08