Copyright law in the United States derives from the Constitution, which charges Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Title I, §8, Clause 8). The expression of this seemingly uncomplicated statement is a compromise between the right of free speech as granted by the First Amendment, and investment in the creation of new works by granting a temporary monopoly on the expression of ideas and inventions. In the time between the passage of the Copyright Act of 1790 and the passage of the Copyright Term Extension Act of 1998 (CTEA), a fundamental changes occurred in the way that information is valued by society which corresponds with the ascension of the concept of “intellectual property.” The legal challenge to the CTEA in the case of Eldred v. Ashcroft is an expression of a dichotomy between the free exchange of ideas and compensation for those who express the ideas. The development of an imbalance between opposing sides of this dichotomy and the implications the imbalance has for the public domain will be explored in this paper.
Copyright Law and Eldred v. Ashcroft
The CTEA was the first major change in copyright since the 1976 Copyright Act. European Union (E.U.) directives in the mid-1990's promulgated the extension of U.S. Copyright durations in order to at least match the duration of copyright in the E.U. and ensure that works produced in the United States would be afforded similar copyright protection in Europe as in America. The current term of life of the creator plus 70 years (95 years in the case of “works for hire”) meets, and in may cases exceeds, the durations of copyright in the E.U. (Schrader, 1998). The extended duration of copyrighted works, as with previous extensions, were applied not only to works emerging subsequent to the passage of the CTEA, but also to all works that were under copyright at the time of passage.
The retroactive copyright extension, as well as concern for the balance of the public domain versus exclusive monopolies over creative works, compelled Eric Eldred and others to present a legal challenge to the CTEA in 1999. Eldred is the founder of Eldritch Press, which is a collection of online texts that are mostly derived from works that have left copyright and entered the public domain. Eldred recognized the power of the Internet for enhancing access and adding value to intellectual works, which is why he took particular exception to the retroactive copyright extensions granted by the CTEA. Eldred claimed that the new law exceeded the intent of the “limited times” clause in the Constitution. Eldred further asserted that the CTEA abridged his First Amendment right to freedom of the press (Lessig, 2001).
Eldred's case before the Supreme Court did not challenge copyright term extension in principle, but specifically challenged the authority of the Congress to extend copyrights that had already been granted. The justification for this argument was that the extension of copyright for works just about to enter the public domain directly prevented him from publishing such works, curtailing his right to freedom of the press. By approaching his case in this way, however, Eldred avoided the larger issue of the “limited time” of copyrights in favor of a weaker assertion that Congress could not amend copyright terms that were already in effect. In his dissent, justice Breyer presents a much stronger case against copyright extensions than Eldred, citing, among other things, a cost-benefit analysis that was provided to the Congress during its deliberations on the CTEA (Eldred, 537 U.S., Breyer, J. dissenting & Rappaport, 1998). The majority opinion of the court was not in agreement with justice Breyer's and the court readily dismissed Eldred's argument, citing precedent in previous Congressional acts that had enhanced existing copyrights along with copyrights not yet granted (Eldred, opinion).
Additionally, Eldred claimed that the CTEA represented a regulation of speech that overstepped the bounds of the First Amendment, and, thus, a broader examination of the balance between copyright and free speech was warranted. The court examined this claim in the context of the “idea/expression dichotomy” expressed by the copyright clause and determined that the CTEA did not change the balance of copyright and freedom of speech. Furthermore, the court invoked the concept of “fair use,” stating that copyright law grants the public unrestricted use of the knowledge gained from copyrighted works and does not abridge speech that is based upon such knowledge (Eldred, opinion). Eldred's First Amendment claim addressed the theoretical underpinnings of copyright law, but failed to generate the momentum that could be forced by a more fundamental examination of Congressional copyright term extensions.
Thus, the two sides presented in the Eldred v. Ashcroft case may be viewed as a modern expression of the dichotomy between the right to free speech and the rights of creators, the issues which also confronted the framers of the U.S. Constitution. The language of the copyright clause represents a delicate compromise that balances the need to promote the creation of new ideas with the need to allow for the free exchange of such ideas. None but the most radical of opinions believes that one side of the free speech versus copyright equation should prevail absolutely. As Vaidhyanathan so eloquently stated: “There is no 'left' or 'right' in the debates over copyright... There are those who favor 'thick' protection and those who prefer 'thin'” (2001, p.8). The debate is generally over degrees: the degree of economic benefit for creators versus the degree of public access to information. As we will see, however, these two sides have become highly unbalanced.
Balancing Incentives and Access
The framers of the Constitution recognized the need to provide financial incentive for the creation of intellectual works and inventions. The scope of this compensation, however, has changed greatly since the 1790s, when an author of a work could expect no more than two 14-year terms of exclusive rights to his work (Vaidhyanathan, 2001). The 28 year maximum term of copyright represented direct compensation to the original author for the work created. In contrast, the current life plus 70 years represents not only compensation for the author, but for up to two succeeding generations as well. While it may not be arguable that the extended term is a form of incentive for creators, it is reasonable to assume that a term of copyright that benefits the heirs of a work prefers economic benefit for copyright holders over promoting intellectual creation for the benefit of the public. As justice Breyer mused, “How will extension help today's Noah Webster create new works 50 years after his death?” (Eldred, Breyer, J. dissenting)
Additionally, changes in the copyright stakeholders have occurred in addition to the changes in copyright duration. Copyrights granted under the original copyright laws were literally granted to individual authors and inventors for works they created. Social and economic changes have since defined authorship to apply to corporate entities and others that are not creators in the traditional sense. The preponderance of copyrighted material is “owned” by large corporations that have obtained these materials as “works for hire” or by various transferrals of rights from the original creators. The image of the struggling author or inventor is an anachronism in this time of “intellectual property” (Vaidhyanathan, 2001). We realize instead that the stakeholders in the copyright issue are primarily corporations seeking to retain and extend their property rights over intellectual works, and secondarily the public at large which represents, ironically, both the source of new ideas and of revenue for corporate works.
Furthermore, within the last century, transnational corporations began to realize the potential value of their “intellectual capital” and, via non-governmental organizations such as the World Trade Organization (W.T.O.), sought to take measures to maximize control of their “intellectual property.” The court opinion in the Eldred case expressed that the alignment of U.S. Copyright laws to those of the E.U. is a major justification for supporting the CTEA as it represents further protection in Europe for American works (Eldred, opinion). Considering that the changes in the E.U. copyright law were promulgated by the W.T.O., however, we realize that a situation has arisen whereby copyright holders have indirectly dictated copyright law through the actions of unelected multilateral nongovernmental bodies (Vaidhyanathan, 2001). In effect, corporate stakeholders extended the definitions of both the duration and beneficiaries of copyright without effective review by public stakeholders.
Despite these fundamental shifts in what constitutes “limited times” and “authors,” the court took no stance against Congress' jurisdiction over defining these terms. Additionally, the court's decision effectively validated the constitutionality of the CTEA and all previous copyright laws, and potentially rendered future review of Congress' actions under the copyright clause to be “judicially unreviewable” (Eldred, Stevens, J. dissenting). The net effect of the Eldred case is to acknowledge the increased powers of copyright holders over their works which “rewards the established at the expense of the emerging” and sets the precedent for further strengthening copyright holders' powers at the expense of the public (Vaidhyanathan, 2001, p.186).
The court offered “fair use” as a guarantee that copyrighted works may be used to enrich other forms of expression within certain limits (Eldred, opinion). We must consider, however, that fair use is a statutory provision that is not explicitly supported in the copyright clause, and, if the Congress, as influenced by copyright holders, is willing to loosely interpret the definition of an explicit term such as “limited times,” then it is plausible that fair use could be curtailed or eliminated. Furthermore, new technologies enable copyright holders to exercise tighter control over how their works are disseminated and used. These technologies are generally exclusive of any kind of use other than explicit commercial use which, by definition, excludes fair use (Lessig, 2001). The assertion of fair use as a statutory bulwark for the public domain against powerful copyright interests in an already unbalanced relationship is hardly reassuring.
Furthermore, we must consider other effects on the public domain of the increasing control of intellectual works. The confluence of long copyright durations and ephemeral media, particularly volatile formats such as film or electronic media, exacerbates the problem of access to information. For such copyrighted works to be preserved for longer than 70 years, one of two conditions must be met. Firstly, the copyright holder must have sufficient economic incentive to preserve the work, either through publishing of the original work, or creation of derivatives on newer, more stable media. The percentage of works meeting this first criteria, however, is exceedingly small, on the order of 1-2% over the term of an extended copyright (Rappaport, 1998). Alternately, preservation efforts of less profitable works must be made, either by the copyright holder, or by libraries and archives, as it is permitted under the CTEA during the last 20 years of a copyright term. While an intellectual work is economically valuable initially, it becomes historically valuable over a sufficiently long time. Therefore, barring either of the aforementioned efforts at preservation, there is a significant likelihood of gaps in popular memory as expressed by works that eventually enter the public domain. A cultural history remembered only through works that are financially solvent lacks the diversity and richness represented by all creative efforts. Furthermore, building on existing public domain works is critical to perpetuating innovation and creativity in the public sphere and the denial of access to creative effort due to obsolescence and the whims of the market weakens this form of social conversation.
Conclusion
Creation is driven by the combination of availability of public domain material and incentives gained from copyright. Copyright holders have never before had so much control over their works as permitted under the current laws and, as a result, the public domain has never been weaker. Additionally, Congress has seldom proved to be unwilling to increase copyright controls, while the Supreme Court, as expressed in the opinion of Eldred v. Ashcroft, has so far decided not to intervene on the behalf of the public domain. The degree to which copyright holders control their works will only increase as new technologies are developed and will further shift the balance to the holders' benefit at the expense of fair use and the open exchange of ideas. Furthermore, increased copyright control diminishes the pool of ideas and knowledge from which new works that build on the existing cultural dialog may be derived. In effect, our cultural memory risks being relegated to the fewer, more profitable works, while the greater body of works that represent a much greater diversity falls into obscurity.
References
Eldred et al. v. Ashcroft, 537 U.S. XX (2003). Retrieved on 30 October 2003 from http://supct.law.cornell.edu/supct/html/01-618.ZO.html [2].
Lessig, Lawrence (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books.
Rappaport, Edward (1998). Copyright term extension: Estimating the economic values (CRS 98-144 E). Washington D.C.: Congressional Research Service. Retrieved on 30 October 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp [3].
Schrader, Dorothy (1998). Proposed U.S. copyright term extension (CRS 95-799 S). Washington D.C.: Congressional Research Service. Retrieved on 30 October 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp [3].
Vaidhynathan, Siva (2001). Copyright and copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.
