The inspiration for this article came from my attendance a few years ago at an AALS panel of First Amendment scholars. The subject of the panel was the effect intellectual property law, and in particular, copyright law, had on free speech rights. One of the panelists asserted the view that copyright law posed the greatest threat to First Amendment freedoms in this generation. Although probably intentionally overstated, this provocative statement exemplified the passionate feelings of many in the academy.
Over the last twenty years a debate has been growing between scholars and practitioners over whether the duration and scope of U.S. Copyright law has expanded, by case law and by statutory enactments, to the point where it now limits, and even endangers, the 1st Amendment rights of creators of expressive works. In short, the question is whether any growth of copyright protection has been the result of reasoned analysis and a careful weighing of policy considerations, or has it been an exercise in madness – uncontrolled growth that has damaged the cultural environment and the creativity of artists and the public at large. As Professors Paul Schwarz and William Michael Treanor have noted, among these scholars who seem to characterize this growth as madness are such leading lights in the IP law universe as Yochai Benkler, Lawrence Lessig, and Robert Merges.
The duration argument has focused on the recent extension of copyright protection to the life of the author plus 70 years. Concerns have been expressed that this term extension exceeds the “reasonable time” grant found in Article 1, Section 8 of the Constitution. Critics argue that many creative works are now protected beyond their useful life and that but for the statutory grant, would be otherwise available to third parties to reprint in online and other archival versions. These “orphan copyrights” are not available, the critics argue, because the statutory grant interferes with other uses of the works.
A similar criticism is leveled against the derivative rights protection afforded to copyright holders. Some artists argue that granting creators the right to prevent others from using the first work as a basis for creating a new work is antithetical to the creative process.
I take a contrary view. I support the position of the Copyright Office and a minority of scholars to the effect that the Copyright law does provide adequate safeguards, through such provisions as the Fair Use Law (17 U.S.C. § 107), to balance the rights of first creators against the rights of those that follow them. Following a brief introduction, Section One of this article will analyze the merit of seven of the leading arguments against existing Copyright law. These arguments are derived from the writings of Professors Yochai Benkler, Jed Rubenfield, C. Edwin Baker and Neil Weinstock Netanel, which cogently and in great detail outline the basis for their views.
Section Two analyzes and critiques the currently pending effort of the Copyright Office and Congress to offer a moderate answer to the Orphan Copyright issue, in the form of the “Orphan Works Act of 2006”, and suggests that this legislation, together with other moderate proposals to address concerns created by the scope of derivative works, may provide a framework for improving Copyright law, without taking some of the more drastic reformative steps proposed by its principal critics.
Noted American satirist Ambrose Bierce defined “Justice” in his brilliant book, The Devis’s Dictionary, thusly: “A commodity which in a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service.” In this short essay I hope to demonstrate the Copyright law, with only some minor alterations, can continue to provide even Bierce’s jaded citizens with their fair share of justice.
Available at: http://works.bepress.com/marc_greenberg/1/