Beyond Eldred: What's Next For Copyright Reform?
It is this second concern - that longer copyright terms limit the ability of artists to create - that should resonate particularly with independent media artists. Longer copyright terms reduce the number of works which creative artists can borrow from or build upon, subjecting artists to sometimes outrageous licensing fees which many can ill afford to pay. This assumes, of course, that artists can find out who holds the copyright in the first place. Works obtain copyright protection automatically at the time of creation - no registration is needed - and undergoing this search process also has its costs.
Equally troubling, though not directly at issue in Eldred, is the matter of "stronger" copyright. Even when an artist's use of protected work is merely incidental to a new creation, copyright holders increasingly demand a pound of flesh. The first chapter of The Future of Ideas, written by Stanford professor Lawrence Lessig, vividly recounts film director Davis Guggenheim's struggles to clear the rights to various works that appear for only a few seconds in his films. The increasingly popular notion that information and ideas are private commodities has led to numerous legal threats to digital media artists whose works criticize and borrow from cultural and corporate icons, even when such use should be considered legal under "fair use" principles. Lacking the means to oppose such threats, artists choose not to create, or to create instead works that are safe from scrutiny.
Unfortunately, in Eldred the court had little sympathy for either the First Amendment or the "limited times" arguments. The court rejected Eric Eldred's challenge by a 7-2 margin, largely on the ground that Congress has broad discretion to determine the length of copyright terms. Justice Ruth Bader Ginsburg wrote for the majority:
"In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess Congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be."
Some predicted that this would be a major, and perhaps fatal, setback for the hearty band of advocates and legal scholars seeking to reinstate the "delicate balance" of copyright law envisioned by the framers of the Constitution. This balance gives artists and innovators a time-limited monopoly over their works, thereby encouraging them to create, while at the same time nourishing the public domain with new works of art to be shared and built upon, which results in the creativity and innovation of others.
Rather than deterring copyright-reform advocates, however, the Eldred decision has energized them. In addition to raising the profile of an area of law which had been almost completely ignored by the public in the past, the case and its resulting decision have had several other positive developments.
The Focus is Placed Squarely on Congress.
The Eldred Court could not have been clearer on one point: Congress is the most appropriate body to decide copyright policy. Thus, the message to advocates who had adopted a dual strategy of litigation and policy advocacy is this: If you want significant changes in copyright law, energize your troops and have them talk directly to their representatives in Congress.
The good news is that copyright-policy advocacy directly aimed at Congress has grown enormously over the past two years. The Electronic Frontier Foundation, which has been the premiere organization engaged in litigation on copyright issues, is now using its grassroots network to pressure Congress on a variety of copyright- and technology-related topics. Another group, digitalconsumer.org, has raised grassroots awareness and activism on content-industry efforts to design digital media products in a way that protects copyrights but limits citizens - and artists - rights. And my organization, Public Knowledge, has put forth a project specifically aimed at engaging and activating the arts, culture, and humanities communities in the area of copyright and technology.
These efforts have been quite successful so far. Despite the attempts last year of large content companies to push through Congress four bills, each meant to tip the copyright balance even further in their favor, none even came close to passing. Additionally, two public-interest-oriented copyright and technology bills were introduced last Congress, and one has already been introduced in the House this term. I expect that no fewer than three more such bills will be introduced in the near term. While none of these address copyright term-lengths directly (they all address the intersection of copyright and technology), they are evidence that more and more members are beginning to understand the real "public interest" in these subject.
As a result, some of the staunchest proponents of government action to extend copyright have decided that the public outcry and negative publicity over their efforts are hurting their industries more than helping. In an agreement signed earlier this year, the Recording Industry of America publicly stated for the first time that it would not seek a government solution to its efforts to reduce file-trading on peer-to-peer networks - a notable departure for an industry which thus far had largely gotten its way in Washington.
While there is still reason to be concerned about Hollywood's effect on Capitol Hill (the most likely being a law mandating that the Federal Communications Commission adopt a marking scheme for digital television that would require all digital media products capable of receiving a signal to read and obey a "broadcast flag"), the momentum has shifted tremendously. Even a year ago, public domain advocates feared that introducing public interest bills would leave them steamrolled by the content industries. Now those industries are playing defense for the first time.
The Importance of Fair Use as a Balance to the Copyright Monopoly is Reinforced.
In rejecting Eldred's First Amendment argument, Justice Ginsburg focused on two particular First Amendment safeguards to the copyright monopoly. The first is the "idea/expression" dichotomy, which grants protection only to the particular expression of an idea, but not to the idea itself.
The second and more widely discussed safeguard is "fair use." Fair use permits use of a copyrighted work without the permission of the copyright holder in certain circumstances. Those circumstances depend on, among other things, the amount of the work that is used; the purpose for which it is used, i.e., whether the use is noncommercial or for criticism, commentary, or educational purposes; and whether such use has a negative effect on the market for the work.
This reinforcement of the necessity of fair use to keep copyright terms from running afoul of the First Amendment is particularly important in the age of digital technology. So-called digital rights management (DRM) technologies are increasingly being used to protect copyrights, although they often at the same time limit the public's fair-use rights. To ensure that DRM has broad application, its proponents are seeking laws that force manufacturers of digital media products to obey whatever limitations a particular "technological lock" requires. Two of the four pro-content industry bills considered in the last Congress would have done just that.
Justice Ginsburg's decision may also have serious implications for 1998's controversial Digital Millennium Copyright Act (DMCA). Among other things, the DMCA makes it illegal for anyone to break a technological lock, regardless of why they do so. The most famous case ruling against DMCA's overreach involved a Norwegian teenager, Jon Johansen, who recoded a DVD he had purchased. Because the DVD was designed to play only on Windows-operated computers, Johansen developed a code that would allow him to play the DVD on his home computer, which operates on the Linux platform. Under the DMCA, such an action is considered a crime, even though Johansen purchased the DVD and did not make or distribute any copies. To the extent that this "anticircumvention" provision of the DMCA restricts fair use, its future is clouded by the Eldred case.
Mechanisms Designed to Grow the Public Domain without Involving the Policy Process are on the Increase.
Even before the Eldred decision, a movement has sprung up to develop mechanisms outside the policy process which ensure that works are made more widely available than they would under copyright law. Several of these initiatives are now up and running. Perhaps the most well-known is the free software, or open source, movement. Open source programmers make available to anyone the source code underlying their software. Other programmers can modify the code in any way they see fit, as long as they make the modified code available on the same terms as the original.
Creative Commons, developed by a number of legal scholars, offers a related strategy - a series of licenses that allow artists to retain control of their works while making them available to the public under terms more favorable than copyright. Artists can participate through any combination of four licenses: permitting use of their work as long as the work is attributed to the author; permitting only non-commercial uses; permitting only derivative works; or permitting use only if the resulting work is made available on the same terms as the original.
The Budapest Open Access Initiative, spearheaded by the Open Society Institute, encourages scholars to make their academic journal articles available only to online "open access" journals. These journals stand in stark contrast to most print journals, which do not compensate researchers for their work yet charge libraries extraordinarily high subscription fees for their volumes. The crisis in this area is such that many libraries have stopped subscribing to certain academic journals.
Finally, there are a number of online libraries working to preserve society's cultural artifacts and provide access to them. One of the best-known is the Internet Archive, located in San Francisco and founded by entrepreneur Brewster Kahle. The Archive seeks to build an "Internet library" that will offer permanent access for researchers, historians, and scholars to historical collections which exist in digital format. This includes the most comprehensive archive of web pages that have been removed from the web.
The Eldred decision marks not the end but rather the beginning of an era in copyright policy advocacy. Thanks to this decision, advocates' sights are aimed directly at Congress, and the grassroots are starting to make themselves heard. While it is unlikely that copyright terms will be shortened anytime soon, other legislation that reinforces citizens' rights to make legal use of digital content have a realistic possibility for passage. This foot-in-the-door has changed the debate, making more widespread reform possible in the future. There has never been a better time for creative artists to make themselves heard. We invite NAMAC and its members to join in this burgeoning movement.
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Gigi Sohn is president of Public Knowledge, a Washington, D.C.-based advocacy organization that seeks to defend the public's stake in the convergence of intellectual property law and technology policy.
~~~~~~~~~~~~~~~~~~~~~ © 2003 National Alliance for Media Arts and Culture. All Rights Reserved.
