[11999] in Public-Access_Computer_Systems_Forum
copyright threat (fwd)
daemon@ATHENA.MIT.EDU (Michael S. Hart)
Mon Feb 9 20:21:48 1998
Date: Mon, 09 Feb 1998 16:07:19 -0600
From: "Michael S. Hart" <hart@prairienet.org>
To: PACS-L@LISTSERV.UH.EDU
Reply-To: Public-Access Computer Systems Forum <PACS-L@LISTSERV.UH.EDU>
----------------------------Original message----------------------------
This is long, but might prevent one million books from being
once again eliminated from the Public Domain. . . . Michael
---------- Forwarded message ----------
Date: Sat, 7 Feb 1998 05:38:56 -0500
From: Richard Jensen <h4900@apsu01.apsu.edu>
Reply-To: Historical documents on-line <E-DOCS@LISTSERV.UIC.EDU>
To: E-DOCS@LISTSERV.UIC.EDU
Subject: copyright threat
from <http://www.public.asu.edu/~dkarjala/>
Opposing Copyright Extension
A Forum for Information on Proposals to Extend the Term of Copyright
Protection and What to Do about It
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In the 104th Congress (1995-1996) bills were introduced in both Houses
to extend the term of copyright protection by 20 years. Had this special
interest legislation been adopted, the American public would have paid a
heavy price in continued royalties on old works, and current creative
authors would have been denied vital pieces of our cultural heritage for
use as building blocks in making new works. Now the battle has started
again! This site is intended to serve as an information source on copyright
extension for copyright-term-extension legislation that has been introduced
in the current 105th Congress. Individuals and groups who believe in a
healthy and vibrant public domain are invited to make use of this
information in resisting these efforts by the owners of old copyrights to
avoid paying their constitutional dues after 75 years of free-flowing
royalty streams--namely, dedication of the works to the public domain. As
part of the public domain, they constitute our cultural heritage and should
be freely available to all to enjoy and to use in creating newer works.
Copyright term extension legislation was introduced in the House on
February 5, 1997, in the form of H.R. 604 (linked below). The Senate's
version of the bill, S. 505 (also linked below), was introduced on March
20, 1997, by Senator Hatch. The House bill has now passed the House
Subcommittee after essentially secret hearings to which opponents of term
extension were not invited to testify, notwithstanding explicit requests do
to so when and if hearings were held. The House bill now takes a form
essentially identical to the Senate bill. The new bill is numbered H.R.
2589 and is linked below. The special-interest proponents of term
extension are increasingly successful at making these bills look
noncontroversial, as shown by the way the House Subcommittee held its
"hearings". Some 60 copyright and intellectual property law professors,
who have no personal interest in the outside of their conviction that it is
a bad deal for the public--based on years of study of the underlying law
and policy--have delivered to Congress a detailed Statement, thoroughly
demolishing the "arguments" offered by the proponents of term extension and
demonstrating the drastic and permanent harm to the public domain that
extension will bring about.
Believers in the public domain must rise swiftly and strongly to stem
what is being billed by ASCAP, the descendants of creative geniuses from
earlier eras like George Gershwin and Walter Donaldson, and the
entertainment industry as a "noncontroversial, no-lose" piece of special
interest legislation. The costs are, in fact, enormous, but they are spread
out over so many people that few single individuals or groups feel a
compelling need to fight. If they do not fight, however, the general public
and our cultural heritage will suffer a devastating blow.
The copyright term was extended by a full 19 years in 1976. According
to a recent Wall Street Journal article, heirs and assignees of creative
composers from the 1920's have already enjoyed millions of dollars of extra
royalty income as a result of that extension. These noncreative recipients
do not need, nor should the public be required to pay for, another 20 years
of such royalties.
The creation of new works is dependent on a rich and vibrant public
domain. Santa Claus himself, as we now know him, is a good example. The
great 19th-century American cartoonist Thomas Nast, starting from a skinny,
austere, judgmental Father Christmas figure in the public domain, created
the jovial, roly-poly figure that we all know today. Had Thomas Nast been
working under the kind of copyright law envisioned by the term
extensionists, we may never have seen the development that we now take for
granted=97and Nast's descendants might be seeking royalties from everyone
seeking to put out Christmas decorations. Even the U.S. Government would
have had to pay royalties to use Uncle Sam for its patriotic solicitations,
like bond selling and military enlistments, during World Wars I and II, the
Korean War, and most of the Vietnam War! (Uncle Sam was also a creation of
Nast, based on the public domain name and concepts, and Nast died in
1902.) Just as Uncle Sam, Santa Claus and the Easter Bunny are part of the
public domain that anyone can use in any season, so eventually should
Mickey Mouse and Bugs Bunny also join our freely available cultural
heritage (not to mention Rudolph and his red nose). That is a crucial part
of the copyright "bargain" that the public made at the time these works
were created.
The American Association of University Professors has written a cogent
letter to Representative Hyde, Chairman of the House Judiciary Committee.
That letter is linked below. Similarly, the Society of American Archivists
has written to the members of both Senate and House Judiciary Committees.
That letter, too, is linked below. All educational organizations should
refer to these letters for possible use as models for their own statements
of opposition. UNLESS ACTIVE ORGANIZED OPPOSITION IS FELT BY CONGRESS IN
THE VERY NEAR FUTURE, THIS DRASTIC REDUCTION OF OUR FREELY AVAILABLE
CULTURAL HERITAGE WILL QUIETLY SNEAK THROUGH THE CONGRESS! THERE IS NO
MORE TIME TO LOSE. Some members of these Committees have email addresses.
If you would like an easy way to send Senators and Representatives on these
Committees a fast email expressing your opposition to term extension, click
here.
This site contains a collection of documents, articles, letters, links,
and other information relevant to the issue of copyright term extension. It
contains a local link with the names, mailing addresses, E-Mail addresses,
web sites and telephone numbers to both houses of Congress as well as
President Clinton at the White House and Vice President Gore. Similar
information is separately given for the members of the Senate Judiciary
Committee and the Subcommittee of the House Judiciary Committee that will
first consider the reintroduced extension legislation. Many members of
Congress seem to believe that copyright extension is noncontroversial. It
is therefore imperative that opponents of longer copyright terms contact
the members of these committees to make their opposition known.
The problem with opposing copyright term extension is that the harmful
effect is diffuse--it affects everybody, and although the collective harm
is enormous, few identifiable groups are so directly impaled that they are
stirred to action. [See the comment of Justice Stephen Breyer below.]
However, Congress only listens to collective voices. That is why individual
writers, archivists, librarians, historians, biographers, teachers and
other educators, film makers, and multimedia producers, as well as members
of the general public and consumer groups, must start NOWon opposing term
extension. Links to congressional names, addresses and telephone numbers,
legislative materials for the 105th as well as the104th Congresses,
statutory provisions and treaties, and other commentary are given below.
Information on current bills (105th Congress) is also provided, including
the precise of You might also wish to consult some sample letters that I
and others have written to get some ideas on what you can say. (But the
most important thing is to say what you think--in your own words.) For an
excellent discussion of the disastrous effect term extension will have on
preventing the restoration of culturally invaluable old films and the use
of extended copyrights in old works to inhibit motion picture offerings
using modern technologies, see "Motion Picture Films and Copyright
Extension," linked below
We also need to start lining up groups that are willing to take a
collective stand. Please take a look at the Statement I recently (January
1998) submitted to Congress on behalf of Copyright and Intellectual
Property Law Professors. (This Statement is an update of the Written
Testimony I gave before the House Subcommittee in the last (104th)
Congress. I would like to put together a larger coalition of organizations
this time around. Please email me at dennis.karjala@asu.edu to give me your
thoughts on groups that might be willing to join this fight! I have been
hearing from many individuals, but it would be even better if we could get
more organized.
Notwithstanding the copyright symbol at the top of this page, which was
intended to be merely decorative and to let people know that this web site
has something to do with copyright, visitors are free to copy and use what
they find here unless restrictions are otherwise noted on a particular
document. (Everything by Dennis Karjala you may treat as free. From time to
time, however, I hope to make available, with permission of the author,
other materials, and I must respect such authors' wishes as to how "free"
they are willing to be with works they have created. Obviously, this
blanket permission covers only the materials I have placed on the "Opposing
Copyright Extension" web page and not materials found at other sites via
links here provided.)
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Congressional Names and Addresses (105th Congress)
If you want to write to members of Congress, here are some addresses. For
sample letters that I have written, take a look below. Here are the names
and addresses of the members of the relevant committees that deal with
intellectual property questions, as well as of the entire House and Senate
for the 105th Congress (1997-1998).
Names and addresses of the membership on the Senate Judiciary Committee
Names and addresses of the membership on the House Judicary Committee .
H.R. 2589 is now before this Committee. Write immediately!
Names and addresses of the membership on the House Judiciary Commmittee's
Subcommittee on Courts and Intellectual Property
Names and addresses of the full membership of the United States House of
Representatives
Names and addresses of the full membership of the United States Senate
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Sample Letters to Congress
Letter dated November 7, 1997, from William J. Maher, 1997-98 President of
the Society of American Archivists to the members of the House and Senate
Judiciary Committees, opposing S. 505 and H.R. 2589.
Letter dated October 8, 1997, from Mary Burgan, General Sectetary of the
American Association of University Professors, to Representative Henry J.
Hyde, Chair of the House Judiciary Committee, opposing H.R. 2589.
Letter dated March 31, 1997 from Larry Urbanski, Chairman of the American
Film Heritage Association in opposition to S. 505.
Letter dated January 29, 1998, from Dennis S. Karjala to Senator John D.
Ashcroft urging opposition to S. 505, the Copyright Term Extension Act.
Letter dated March 26, 1997, from Dennis S. Karjala to Senator Strom
Thurmond urging opposition to any new legislation that may be introduced to
extend the term of copyright.
Letter dated February 6, 1997, from Dennis S. Karjala to Senator Patrick
Leahy, urging opposition to any new legislation that may be introduced to
extend the term of copyright.
Letter dated January 22, 1997, from Dennis S. Karjala to Senator Dianne
Feinstein, urging the withdrawal of her support for copyright extension.
Letter dated February 19, 1997, from Dennis S. Karjala to Representative
Sonny Bono, urging the withdrawal of his support for copyright extension
under H.R. 604.
Letter dated April 3, 1996, from Dennis S. Karjala to Senator Orrin G.
Hatch, responding to arguments made by Senator Hatch in support of
copyright term extension.
For other sample letters, visit the No Cense Copyright Reform Campaign ,
linked below.
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Commentary on Copyright Extension
Be sure to see the 1998 Statement of Copyright and Intellectual Property
Law Professors, linked below, which provides a thorough legal and policy
argument for rejecting term extension.
Songwriters' Heirs Mourn Copyright Loss, summary of a Wall Street Journal
article of October 30, 1997, on the role being played by descendants of
great American songwriters from the 1920's in lobbying Congress intensely
to extend the copyright term. The article shows that many of these heirs
have already collected millions of dollars just in the extra royalties paid
as a result of the 19-year term extension that occurred in 1976. The
article also shows their exercise of control over uses of these classic
American works that they deem unsuitable. Comment from Dennis Karjala is
also presented, together with a letter thereon he has sent to the Journal.
Motion Picture Films and Copyright Extension, by John McDonough of
Television Access International. This short and readable piece by a person
highly knowledgeable in the film industry, especially films from the early
days of the industry many of which are literally rotting away and may be
lost forever unless they are restored before the extended term would
expire, shows how the extended term will dramatically reduce the ability of
archivists and film distributors to restore and distribute old films. Many
of these films will be lost unless something is done to save them within
just a few years. Copyright extension will not result in greater
distribution of these films, because in most cases their copyright owners
are not exploiting them today and have not exploited them for decades.
Instead, the extended copyrights will be used to hold the off the market,
to maximize the return on newer films by miniming competition.
The Term of Copyright, by Dennis S. Karjala, a chapter of the book Growing
Pains: Adapting Copyright for Libraries, Education, and Society, Laura N.
Gasaway ed., published by Fred B. Rothman & Co. 1997. This updates
Professor Karjala's Written Testimony before the House Subcommittee in
1995, focusing more on the arguments for extension that seem to be most
influential in Congress.
Copyright Duration and the Dark Heart of Copyright, by Marci A. Hamilton,
originally published in Volume 14, No. 3, Cardozo Arts & Entertainment Law
Journal, Pages 655-660 (1996). This article cogently argues that a better
empirical understanding of copyright dynamics and closer attention to the
Constitution's demand that copyright "promote the progress of science and
useful arts" should caution against blindly following the European approach
and warns that "international standardization is in fact a shield behind
which less public-spirited interests may seek their own ends."
The Duration of Copyright and the Limits of Cultural Policy, by J.H.
Reichman, originally published in Volume 14, No. 3, Cardozo Arts &
Entertainment Law Journal, Pages 625-654 (1996). Professor Reichman argues
in this article that enactment of the term extension bills in their present
form would be premature and counterproductive. He specifically opposes
extension of the term for "works made for hire", although he does not
oppose extension of the term for individual authors to life plus 70
provided authors, and not publishers, obtain the benefits.
Copyright From Now Till Practically Forever, by Stephen R. Barnett and
Dennis S. Karjala, published in the Washington Post OpEd page July 14, 1995
(a short and easy to read introduction to the public interest issues
involved in copyright extension).
Who Owns Jane Austen?, summary of a front-page Wall Street Journal article
of March 25, 1996, on distant descendants of Jane Austen who would like
more control over today's uses of her works, together with a published
comment letter thereon by Dennis Karjala. This is a good example of the
danger of ever-longer copyright protection, and how it could easily
inhibit, rather than promote, creative uses of what would otherwise be
public domain works. Short and readable--have a look!
Congress Moves to Extend Copyright Welfare, by Dennis S. Karjala, June
1996, submitted in OpEd-style to both the Wall Street Journal and the New
York Times (but not published in either). This short comment explains how
copyright extension would operate solely as a welfare measure to keep the
royalty streams flowing to the owners of old U.S. copyrights. It shows that
"harmonization" with Europe is neither achieved by the extension bills in
the U.S. nor serves as any rational basis for extending the copyright term
here.
Statement of Copyright and Intellectual Property Law Professors on the
Public Harm, unpublished easy-to-read statement of some 35 copyright and
intellectual property law professors opposing the extension bills in the
104th Congress.
Research Report: The Economics of Term Extension for Motion Pictures, by
Douglas Gomery. In addition to analyzing the negative implications for
scholarly research on and public access to silent films, this report gives
examples of works that became popular or were available for preservation
only because they fell into the public domain. Strongly recommended reading=
!
For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension
Act of 1996, by Joseph A. Lavigne, originally published in Volume 73, No.
2, University of Detroit Mercy Law Review, Pages 311-360 (Winter 1996).
This excellent Comment gives a careful legal and policy analysis of
copyright extension, concluding that it is not only unwise but also
arguably unconstitutional in violating the "for limited Times" requirement.
Consider also what Justice (then Professor) Stephen Breyer said (without
success) about extending for an additional 19 years at the time the 1976
Copyright Act was under deliberation:
"This continual expansion is not surprising. Holders of copyrights about to
expire have a financial interest in urging extension. Authors and
publishers can lead a legislature to focus on the production and 'moral'
arguments for protection, while no single interest group is sufficiently
affected to focus legislative attention upon the problems of dissemination.
An examination of the question, however, suggests that, even if the moral
argument is given its due, which is little, extension is not justified."
Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in
Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 324 (1970)=
=2E
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Statutes and Treaties
Click here to visit the Legal Information Institute's electronic version of
the United States Copyright Act of 1976.
Click here to visit the Legal Information Institute's electronic version of
the Berne Convention.
Click here for Sections 302-305 of the U.S. Copyright Act (covering the
duration of copyright).
Click here for the European Union's Directive 93/98/EEC, "harmonizing" the
term of protection at that of the longest of any of its members (life plus
70 years) and mandating adoption of the "rule of the shorter term" by each
member state.
Click here to see Article 7 of the Berne Convention, which permits but does
not require the discriminatory (non-national treatment) "rule of the
shorter term." It is the European Union's mandatory adoption of this "rule
of the shorter term," rather than the failure of the U.S. to extend the
U.S. copyright term, that is the source of any "discrimination" against
U.S. copyright owners. See Congress Moves to Extend Copyright Welfare,
linked below.
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Legislative Materials (105th Congress)
Statement Dated January 28, 1998, of Copyright and Intellectual Property
Law Professors in Opposition to "The Copyright Term Extension Act." This
is the most up-to-date and thorough analysis of term extension and its many
problems. While written as a legal argument, part of it remain readable
even to laypersons. It shows, for example, that if the law envisioned by
the extensionists had been in place in the 19th century, both Santa Claus
and Uncle Sam would have gone into the public domain only in 1973!
The House Subcommittee on September 30, 1997, after having held
essentially secret hearings in June and without even announcing that the
Subcommittee was going to markup on copyright term extension, adopted and
sent on the the full Judiciary Committee H.R. 2589 , which is identical to
S.505 introduced in the Senate, except for a meaningless new Section 4
stating the "sense of the Congress" that copyright owners of audiovisual
works negotiate in good faith with screenwriters, directors, and performers
"to reach a voluntary agreement or voluntary agreements with respect to the
amount of remuneration to be divided among the parties for the exploitation
of those audiovisual works." In other words, the fight as far as this
Subcommittee is concerned is only about how to split up the spoils of which
Congress hereby plans to rob the public.
Click here for the text of H.R. 604, the Copyright Term Extension Act of
1997, introduced on February 5, 1997, by Representative Gallegly. This bill
is quite similar to H.R. 989 (considered in the 104th Congress). In fact,
it is essentially identical to the bill that passed the Senate Judiciary
Conmmittee in the 104th Congress. (This shows how closely supporters of
these extension bills are working together in both houses of Congress.)
Important differences from last year's bills (as introduced) are:
H.R. 604 does not extend the period under section 303 (now set at Dec. 31,
2002) within which pre-1978 unpublished works remain under federal
copyright unless they are published. It does extend until 2047 the term of
the copyright for any such works that are published before the end of the
year 2002.
H.R. 604 adds a provision permitting a "nonprofit educational institution"
to make use of published works during the last 20 years of the copyright
term "for purposes of preservation, scholarship, or research," unless
either (1) the work is subject to normal commercial exploitation, (2) a
copy of the work is available at a reasonable price, or (3) the copyright
owner serves notice that either (1) or (2) apply. In fact, because fair use
would already permit everything this provision allows, this purported
benefit to libraries and nonprofit organizations is actually DETRIMENTAL,
by implying that uses not complying with its very narrow scope are no
longer fair!
H.R. 604 makes a technical revision of the proposals in the 104th Congress
that could have been interpreted as reviving copyrights that have or will
have expired before the effective date of the Act. H.R. 604's proposed
amendment of section 304(b) makes clear that extension does not cover
copyrights whose term has expired prior to the effective date of the Act.
For information on the progress of this bill, try this link. For Dennis
Karjala's initial analysis of H.R. 604, click here.
Click here for the text of S. 505, the Copyright Term Extension Act of
1997, introduced on March 20, 1997, by Senator Hatch and co-sponsored by
Senators Leahy, D'Amato, Thompson, Abraham, and Feinstein. This bill is
largely identical to H.R. 604, but it includes in addition a provision
supplying termination rights in the additional twenty-year period in those
authors or copyright owners who failed to exercise their termination rights
under section 304(c) with respect to the 19-years already added to the term
of their copyrights by the 1976 Act. Dennis Karjala's analysis of S.505
will be available here soon.
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Legislative Materials (104th Congress)
Click here for Sections 302-305 of the U.S. Copyright Act, as amended by
H.R. 989 (these are the copyright term duration provisions of the Copyright
Act, with the alterations and deletions that would have been effected by
H.R. 989 shown by strikeout and italics).
Introduction of S.483 into the Senate by Senator Hatch on February 22,
1995, explaining his reasons for the bill. It includes the text of S.483 as
well as remarks by Senator Feinstein in support of the extension measure.
Senator Feinstein relies heavily on a Billboard article by Professor Arthur
Miller, which she also included in the Congressional Record. I append (with
links from the text) some of my own comments on the Senators' remarks and
on Professor Miller's assertions. This document is worth reading. It gives,
presumably, the best arguments for extension that its supporters can come
up with (and how easily these arguments are refuted).
Written Testimony of Dennis S. Karjala on behalf of Copyright and
Intellectual Property Law Professors before the House Subcommittee on
Courts and Intellectual Property, H.R. 989, July 13, 1995 (a careful legal
analysis showing the harm to the public interest from copyright extension).
Oral Testimony of Professor Peter Jazsi on S. 483 before the Senate
Committee on the Judiciary, September 20, 1995. A short, cogent, and
readable analysis of the serious problems involved in copyright term
extension.
Senate Judiciary Committee Report No. 104-315 containing the complete text
of the bill that passed Senate Judiciary in 1996, together with the reasons
and arguments offered in support of the bill. Comments of Dennis S. Karjala
on this Report will be provided soon. The Report contains the minority
views of Senators Brown and Kohl as well as the additional (although
unfortunately concurring) views of Senators Leahy and Simon & Kennedy. The
arguments in dissent of Senators Brown and Kohl are well worth
reading--they give many examples of how the public domain will be harmed by
copyright term extension, and how little public benefit will be provided.
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Internet Discussion List
Mary Brandt Jensen of theUniversity of Mississippi has established an
Internet discussion list for the exhange of views on the issue of copyright
extension. To subscribe,send an email to extension-l@listserv.olemiss.edu
(that's "extension-"ell", not "extension-"one") with the message subscribe
firstname lastname (where you substitute your own first and last names for
"firstname" and "lastname").
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Links to Other Sites Promoting the Public Domain
Union for the Public Domain
The "No Cense" - Copyright Reform Campaign attempts to encourage good
copyright and intellectual property legislation that promotes "the Progress
of Science and useful Arts" without imposing restrictions on the public use
of our cultural heritage. It contains email links to many members of
Congress, discussion of the term-extension issue in lay terms, and sample
letters to Congress. Well worth a visit!
The Intellectual Property Caucus of the Conference on College Composition
and Communication (CCCC) maintains a web site that considers how
intellectual property, copyright, and related legal and political issues
affect the work of scholars of rhetoric/communication and recommends action
plans to the Conference on College Composition and Communication.
For information on public domain music, try Music in the Public Domain, The
Kitchen Musician's Hammered Dulcimer Site and/or Royalty-Free
Music/Katzmarek Publishing.
To learn more about film issues and the negative implications of copyright
extension for the creativity of filmmakers, send an email to Larry Urbanski
of the American Film Heritage Association.
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This site has been established and is maintained by Dennis S. Karjala
Professor of Law Arizona State University Tempe, Arizona 85287-7906 Tel:
(602) 965-4010 Fax: (602) 965-2427 If you have comments or suggestions,
please write, call, or fax--or email me at dennis.karjala@asu.edu
