(Not so) Neat Things I've Read Lately:
A Challenge to the Recent Copyright Act
The following article is from Eastman's Online Genealogy
Newsletter and is copyright 2000 by Richard W. Eastman. It is
re-published here with the permission of the author.
This act, sponsored by the late singer- songwriter and congressman, extended protection by 20 years for
cultural works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather
than the existing "life plus 50"; works made by or for corporations, known as "works made for hire," got 95 years. Works
copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
The law ensured that the estates of writers and composers would
continue to collect royalties from the artists' works. It was also crucial for large publishing houses and movie studios like Disney
and Warner Bros., which rely on revenues from licensing their old copyrighted products. For instance, the character of Mickey Mouse
was copyrighted in 1928 as Steamboat Willie and would have entered
the public domain in 2004. That would be a problem for Disney as their consumer products division and theme parks helped bring in
$8 billion in 1998. The loss of the copyright probably would dilute their revenue stream.
All this sounds like a great idea. However, the new act's implementation has had a negative impact on many people. Some
claim that the new law is little more than corporate welfare. Eric Eldred and nine co-plaintiffs -- including Higginson Books (a
publisher of genealogy and history reprints) and the American Film Heritage Association - have filed a complaint against the
government with the US District Court for the District of Columbia.
Harvard Law School professor Lawrence Lessig is handling the case pro bono. Lessig has two major gripes with the Bono law. First, he
says it infringes on Eldred's freedom of speech: "The extension
takes works that would have entered the public domain and privatizes them improperly; the result is like a tax on freedom of
expression. Eldred can't publicly utter these words now without paying a penalty imposed by the government." Bono also violates
the Constitution, Lessig says, because it flunks the copyright clause's "incentive" requirement. Since you can't give an
incentive to a corpse - and the new law extended protection retroactively to works created by authors now dead - it fails the
litmus test. "The Supreme Court has consistently said the primary purpose of copyright is not to give authors some particular
benefit, but to protect the public domain," says Lessig. "Extensions can't be retroactive, because the Constitution gives
Congress the right to grant exclusive rights only if those rights create incentives to produce more speech. Extending these benefits
retroactively doesn't serve any purposes the copyright clause was designed for."
The impact to genealogists can be found by looking at co-plaintiff Higginson Book Company. The company, managed by Laura Bjorklund,
is a for-profit sole proprietorship that reprints books based on consumer demand in fields such as genealogy, historic maps, local
and county history, and the Civil and Revolutionary Wars. It focuses on books originally printed in small editions that are no
longer in print and therefore difficult to obtain from any other source. Ms. Bjorklund and her employees carefully research any
book published after 1922 to determine whether or not it is copyrighted, which is often very difficult, given the type of rare
books in which they specialize. The Copyright Extension Act prevented works published in 1923 from entering the public domain
at the end of 1998. Because of the difficulties in tracking the authors or heirs of such old works, the Act effectively means that
Higginson Book Company will be unable to reprint any books copyrighted in 1923 for another 20 years.
For more information, look at the following URLs:
http://cyber.law.harvard.edu/eldredvreno/
(earlier info)
http://eon.law.harvard.edu/openlaw/eldredvreno/
(most recent info)
My thanks to Richard J. Yanco for letting me know about the two Web sites."
This article is from Eastman's Online Genealogy
Newsletter and is copyright 2000 by Richard W. Eastman. It is
re-published here with the permission of the author.
To post a message on this topic, go to Myrt's Message Board
This act, sponsored by the late singer- songwriter and congressman, extended protection by 20 years for
cultural works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather
than the existing "life plus 50"; works made by or for corporations, known as "works made for hire," got 95 years. Works
copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
The law ensured that the estates of writers and composers would
continue to collect royalties from the artists' works. It was also crucial for large publishing houses and movie studios like Disney
and Warner Bros., which rely on revenues from licensing their old copyrighted products. For instance, the character of Mickey Mouse
was copyrighted in 1928 as Steamboat Willie and would have entered
the public domain in 2004. That would be a problem for Disney as their consumer products division and theme parks helped bring in
$8 billion in 1998. The loss of the copyright probably would dilute their revenue stream.
All this sounds like a great idea. However, the new act's implementation has had a negative impact on many people. Some
claim that the new law is little more than corporate welfare. Eric Eldred and nine co-plaintiffs -- including Higginson Books (a
publisher of genealogy and history reprints) and the American Film Heritage Association - have filed a complaint against the
government with the US District Court for the District of Columbia.
Harvard Law School professor Lawrence Lessig is handling the case pro bono. Lessig has two major gripes with the Bono law. First, he
says it infringes on Eldred's freedom of speech: "The extension
takes works that would have entered the public domain and privatizes them improperly; the result is like a tax on freedom of
expression. Eldred can't publicly utter these words now without paying a penalty imposed by the government." Bono also violates
the Constitution, Lessig says, because it flunks the copyright clause's "incentive" requirement. Since you can't give an
incentive to a corpse - and the new law extended protection retroactively to works created by authors now dead - it fails the
litmus test. "The Supreme Court has consistently said the primary purpose of copyright is not to give authors some particular
benefit, but to protect the public domain," says Lessig. "Extensions can't be retroactive, because the Constitution gives
Congress the right to grant exclusive rights only if those rights create incentives to produce more speech. Extending these benefits
retroactively doesn't serve any purposes the copyright clause was designed for."
The impact to genealogists can be found by looking at co-plaintiff Higginson Book Company. The company, managed by Laura Bjorklund,
is a for-profit sole proprietorship that reprints books based on consumer demand in fields such as genealogy, historic maps, local
and county history, and the Civil and Revolutionary Wars. It focuses on books originally printed in small editions that are no
longer in print and therefore difficult to obtain from any other source. Ms. Bjorklund and her employees carefully research any
book published after 1922 to determine whether or not it is copyrighted, which is often very difficult, given the type of rare
books in which they specialize. The Copyright Extension Act prevented works published in 1923 from entering the public domain
at the end of 1998. Because of the difficulties in tracking the authors or heirs of such old works, the Act effectively means that
Higginson Book Company will be unable to reprint any books copyrighted in 1923 for another 20 years.
For more information, look at the following URLs:
http://cyber.law.harvard.edu/eldredvreno/
(earlier info)
http://eon.law.harvard.edu/openlaw/eldredvreno/
(most recent info)
My thanks to Richard J. Yanco for letting me know about the two Web sites."
This article is from Eastman's Online Genealogy
Newsletter and is copyright 2000 by Richard W. Eastman. It is
re-published here with the permission of the author.
To post a message on this topic, go to Myrt's Message Board
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