Re: ELDRED

>>> linda[_at_]novelart.com 01/21/03 01:06AM >>> wrote in part:
I think it is outrageous that publishers and manufacturers could both capitalize on and compete with Disney's current and ongoing creative and marketing efforts while paying nothing for the product which they got only because of Disney's efforts.
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Do you also think it is outrageous that Disney can capitalize on [and compete with] the Brothers Grimm [and many others] while paying nothing for the stories which Disney got only because of the original authors' efforts? If not, why should Disney be able to take from the public domain without also contributing to it?

I am not anti-copyright. I believe in the principle that copyright law provides a valuable incentive to create new works. But it does so in order to further the public interest. The Court has said in the past that the PURPOSE of patent and copyright law is to enrich the public domain, so that the public can benefit from inventions and works for free after the limited time has past. In my opinion, the Eldred decision seems to have lost sight of that purpose.

>>> linda[_at_]novelart.com 01/21/03 01:06AM >>> wrote in part:
Personally, I shudder to think of Disney's Cinderella, Peter Pan, etc. entering the public domain at all in today's climate. Famously successful copyrights such as Disney's will have thousands of digital publishers and manufacturers eager to flood the market with republished works, remixed animations and films, revised stories, and rehashed merchandise.
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New creations (remixed films, revised stories) are in the public interest. We get more creativity [in the form of new derivative works] rather than less. Shakespeare and Jane Austen are in the public domain, and we get multiple competing movie versions of their works, instead of just one authorized version.

As for republished works and merchandise, Disney has already saturated the market for those works at the inflated price that copyright makes possible. Republishing those works will make them available at lower prices, allowing a larger number of people to enjoy those works than did previously. Again, Shakespeare's works are all in the public domain and are readily available to the public in multiple competing editions, from cheap paperbacks to leather-bound collectibles. Has that "drastically reduce[d] the incentive to create new, original works"? Hardly.

The problem with your argument is that it has no logical stopping point. You are basically arguing that Disney should enjoy a perpetual copyright. But the Constitution says that patents and copyrights may only be granted "for limited Times." Why would the Framers have put those three words in the Constitution except for a desire to restrain the power of Congress? Absent a formal amendment to the Constitution, those words should have been given real meaning. Instead, the Court read them in a way that imposes no practical limit on the power of Congress.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Thu Jan 23 2003 - 00:43:35 GMT