Re: Copyright Extension, Harmonization

Comments on the proposed legislation to harmonize US and EU copyright terms.

Harmonization of international copyright laws is an important and worthwhile goal, simply because the internet is global in nature and any real progress in attracting valuable creative works to the net requires more protection or security and certainty under the law (which means harmonization of disparate national copyright laws). It is important that we at least agree on the principle of harmonization, even if we disagree on the desired length of the term of copyright. Trade on the net and through traditional channels will flourish under the lower transaction and information costs of harmonized law. US comparative advantage in copyright trade would maintain the US's continued leadership in the world market. Royalties collected abroad but not paid to US artists and authors due to unequal laws in the past would finally be able to be paid to their intended beneficiaries.

Copyright conceptually embodies a balance struck between authors and the public. It gives a monopoly for a limited time, in order to spur creation. After the term of copyright protection expires *everything* falls into the public domain and that public domain is enriched. It is not a *present* balance between currently active creators and currently active users. It is a balance between present and future; present control (complete control by artists over their own works for the life of copyright) leading to an increased body of work falling into the future public domain. It has never been my understanding that creators' control over their works is to be undermined for public access or use during the term of copyright. Where is the basis for such an interpretation when it would be inconsistent with the *exclusive* rights afforded by the constitutional mandate for copyright law? It is well settled that there is no right to access to an author's or artist's creative work by the public during the term of copyright, there is only a very narrow affirmative defense, commonly called "fair use", entailing a detailed case by case examination of the nature of the use (not the identity of the user).

Yet it has been argued that copyright be weakened or gaping loopholes allowed during the term of copyright for unauthorized "users", loopholes that threaten to swallow the rule. A misguided expanded notion of "fair use" could easily damage copyright. "Fair use" is an exemption from liability for infringement. All unauthorized uses are infringing uses no matter who the infringer is, and this seems to have been forgotton. "Fair use" is really a compulsory license (with a fee of zero) in the absence of the availability of a licensing mechanism, for a very narrow set of non-commercial uses. It is not a free ticket for an "open season" giving copyright immunity to particular groups of people. There is misguided talk of the "death of copyright" in the digital domain under a faulty assumption that the public needs access and can run roughshod over individual copyright rights in the name of information. "Information yearns to be free" is just another way of saying "we don't want to pay authors and artists any more" and I think it comes from uncertainty about what is allowed and what isn't under copyright law. Better understanding of "fair use" would help. "I didn't understand it, so I killed it" is the dangerous potential for those who fail to recognize the function and value of copyright. Fortunately for all of us, the founders of our country created a very powerful force in our culture via the constitutional mandate for copyright laws. It would take a constitutional amendment to get rid of copyright, and people have to realize that digital versions are supplanting sales of physical units that are the basis for authors' and artists' compensation. Congress has a real obligation to craft copyright laws that work, and can be enforced in the digital domain. We need harmonized law and fair licensing practices for digitized versions of copyright works. Current bills in congress represent an opportunity to address that need, thought they are far from perfect.

In opposing the lengthening of the US copyright term to match international norms... Dennis Karjala wrote:
>

snip.... (the public domain)
> is such an important source of inspiration for the creation of
> valuable new works, maintaining our lead in CURRENT international
> intellectual property exchange may depend significantly on NOT
> extending our copyright periods, while development of European
> cultural products remains tied up in copyright knots.

The old works' importance in the creation of valuable new works underscores that these old works *are* still of great value in the marketplace, which is counter to earlier arguments that the old works have little or de minimus value anymore and should be left to fall into the public domain at life+50 (while EU works have already been given life+70 copyright terms). Recent EU extension of copyright terms can not possibly have anything to do with any lack of development of EU "cultural products" in the past. In fact many would suggest it that it has been the EU which has provided interesting, thoughtful works rather than the US which mainly churns out profit oriented works designed to entertain rather than stand on their own as works of art or serious creative expression. In any case, as long as there is greater protection abroad that is not reciprocated in the US, US artists will continue to be cheated out of legitimate foreign royalties collected and that will certainly not help our balance of trade in copyright works.

> Senator Hatch slips into the common mistake of
> thinking that creative AUTHORS will be the beneficiaries from the
> extension. In fact, it is only the transferees or distant
> descendants of creative authors who will benefit, at a heavy cost
> to the public in the form of a diminished public domain and a
> smaller supply of creative works based on the public domain.

The legislation is truly brutal to creators (by extending existing contract terms no matter how unfavorable) while at the same time using artists' arguments to justify passage. This is an important point and if the bill is to pass, then we ought to fix such glaring inequities like the *lack of a reversion*, without which the bill falls short of accomplishing its supposed goal of benefitting authors and artists. (Could there be a "takings" issue lurking here under the fifth amendment?) In its present form, without a reversion clause, the legislation is not the artist friendly bill it purports to be, but I would fully support a revised bill. I disagree that a diminished public domain will result from passage, it is an expanded albeit slightly delayed public domain that is intended, as has always been the case under the constitutional mandate for copyright. There is no reason to believe that there would be a smaller number of public domain based works over the long term simply because of extension of the limited copyright term. Unjust enrichment to media companies can be avoided by including straight forward reversion of copyright in the bill. Due to the current imbalance of bargaining power between media companies and creators, there also has to be some safeguard to ensure a fair negotiation or renegotiation of licensing terms that reflects the actual value of the works in the marketplace. Far too often authors and artists are cut off from royalty streams generated by the success of their own works, or new uses of their works in new media, only to enrich large entertainment companies. Reversion will allow adjustment of inequitable arrangements and benefit the intended beneficiaries of copyright law.

We need to prevent repetition of the inequities of the past and allow undiluted royalty streams to reach authors and artists, in order to allow copyright to function properly. Digital convergence provides a wonderful window of opportunity to restore fairness. The convergence of different copyright industries, each with their own distinct business practices, needs to be carefully guided into the digital age with evenhanded legislation and policy that is consistent with the copyright clause of the constitution in addressing digitized works. Likewise, as borderless internet commerce progresses, pressures to harmonize copyright laws will only increase. Lengthening the term of copyright to match that of the EU is consistent with fairness and harmonization is an even handed legislative goal we should all be able to support, despite any preferences for a longer or shorter term.

-c.

Christopher Hyun <cchesq[_at_]panix,com> Received on Wed Apr 10 1996 - 18:39:00 GMT