Tuesday, March 17, 2009

Copyright extension

I wrote this entry, originally, on June 30, 2004.

In Chapter 13 of his most recent book, Free Culture, the acclaimed Stanford Law Professor Lawrence Lessig has presented a critical evaluation of Sonny Bono Copyright Term Extension Act (CTEA) passed by the 105th Congress.

Lessig first provides a constitutional analysis of the copyright protection, emphasizing the part of the "Progress Clause" that stipulates a limited term for exclusive rights assigned to authors:

Congress has the power to promote the Progress of Science . . .
by securing for limited Times to Authors . . . exclusive Right
to their . . . Writings . . .
(Section 8, Clause 8 of the U.S. Constitution)

Lessig's basic point is that one cannot keep extending copyright protection and still remain faithful to the Progress Clause.

Lessig then notes that if we limit ourselves to the first 25 years of the works affected by CTEA, we see that only 2 percent of that work has any commercial value. (Lessig, p. 221)

Lessig describes how copyright term extensions can lead to disappearance of pieces of our culture which are of great significance but which may not be commercially active. He describes the high cost of obtaining copyright information regarding commercially inactive works and the legal risks of publishing them without clear findings on their copyright status. Those costs and risks, along the copyright extensions given by congress seem poised to lead to the disappearance of large chunks of American culture.

Of all creative work produced by humans anywhere, a tiny fraction
has continuing commercial value. For that tiny fraction, the copyright
is a crucially important legal device. For that tiny fraction, the
copyright creates incentives to produce and distribute the creative
work. For that tiny fraction, the copyright acts as an "engine of
free expression."

But even for that tiny fraction, the actual time during which the
creative work has a commercial life is extremely short . . . [M]ost
books go out of print within one year. The same is true of music and
film. Commerical culture is sharklike. It must keep moving. And when
a creative work falls out of favor with the commercial distributors,
the commercial life ends.

Yet that doesn't mean the life of the creative work ends. We don't
keep libraries of books in order to compete with Barnes & Noble,
and we don't have archives of films because we expect people to
choose between spending Friday night watching new movies and
spending Friday night watching a 1930 news documentary . . . To
understand who we are, and where we came from, and how we have made
mistakes that we have, we need to have access to this history.

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