Re: Copyright Extension Bill Passes Congress

On 11/18/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Wed, 11 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> [snip]
> >
> > Shakespeare might not have prevailed against Bernstein, et al.,
> > depending on how the court viewed the line between idea and
> > expression; one could certainly envision a U.S. court holding that
> > Bernstein had borrowed more than the "idea" of R&J, but nearly the
> > entire plot as well. Certainly Shakespeare would have prevailed
> > against the producers of the recent R&J movie starring Leonardo di
> > Caprio. The point is the same: a rich public domain allows for the
> > re-imagination and transformation of older works WITHOUT having to
> > ask for permission or worry about lawsuits.
>
> What's wrong with obtaining permission? Many movies today are derived,
> with permission, from books, plays, and other movies. It is really a
> path favored by industry professionals.

If the second artist (author, director, etc.) is required to obtain permission, then his or her artistic vision may be compromised by the constraints placed upon use of the work by the copyright owner. With public domain works, the second artist is free to use the work in any manner that he or she sees fit. This is much more in keeping with our free speech tradition. Copyright is necessary to ensure that new works are created; but the public domain is necessary to ensure that artists have a store of prior works upon which to draw in their creative endeavors.

> > Unless you are prepared to argue that copyright should be perpetual,
> > we must draw the line somewhere. The question remains: what is the
> > appropriate duration of copyright? As the list demonstrates, there
> > is no consensus on that question. What bothers me is that Congress
> > responds only to the interests of those with money, instead of taking
> > the public interest into account.
>
> Your view is probably subject to your perspective. I recently
> heard Hon. Pat Schroeder, now head of Association of
> American Publishers, observe that the copyright industry is
> badly outnumbered by user groups. Certainly the embrace of
> fair use and library photocopying, after the proliferation
> of the Xerox 914, took these users' interest into account.

Although the number of so-called "user" groups may outnumber the number of publishers, the dollars contributed by the copyright industry (including the movie and music industries) to Congress far outnumber the dollars contributed by "user" groups. In addition, I disagree that libraries and archives adequately represent the interest of the genral public. Their interests occasionally overlap, but they are not synonymous.

> Users' interest is not always the same as the public interest.
> Library resource sharing based on photocopying, promised as a
> boon to research and the public interest, clearly backfired. It
> excused great cuts in academic library spending and led to
> decimated collections, narrowing of database coverage,
> skyrocketing red-tape-and-wait interlibrary borrowing (not
> always available to undergraduates and off-campus patrons), and
> expensive document delivery from foreign sources. Shorter print
> runs forced prices up and publishers' promotion down. Dissemination
> (which is clearly in the public interest) has been savagely
> disabled for many intellectually challenging works.

Although public library collections may have been "decimated," I am not yet convinced it is due to photocopying (the property tax revolution is a more likely cause, in my opinion), and I also am not yet convinced that it is true for academic institutions. The library here, for example, continues to grow in size. There is simply no way of knowing how fast it would have grown if photocopying had never been invented.

But I think your general point is well-taken. Although I have trouble with some of the reasoning in American Geophysical Union v. Texaco and Princeton Univ. Press v. Michigan Document Services, I am inclined to believe that they were correctly decided. But I would have prefered more careful consideration of the benefits of photocopying, as well as the costs.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Nov 20 1998 - 21:18:24 GMT