Strangling Culture with the Red Tape of Copyright

When I was a kid stuff would fall into the public domain every day. But as I get older, things stopped going into public domain as governments around the world extended the length of copyright. As I have lived my life, "public domain" has become a mirage in the desert, with every year I pass, the date at which material will become available recedes further into the future. Now, it is getting worse than that, as law-makers bend to corporate greed and change the very definition of "public domain" so that nothing ever ends up there again.

Here's a bit from an excellent article in The Chronicle of Higher Education on a case going before the US Supreme Court:

The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties.

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

"It was a shocking change," Mr. Golan says over dinner at a tacos-and-margaritas dive near the University of Denver's mountain-framed campus. "You used to be able to buy Prokofiev, Shostakovich, Stravinsky. All of a sudden, on one day, you couldn't anymore."

Other works once available but now restricted include books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso. The U.S. Copyright Office estimated that the works qualifying for copyright restoration "probably number in the millions."

Congress approved the recopyrighting, limited to foreign works, to align U.S. policy with an international copyright treaty. But the Golan plaintiffs—a group that includes educators, performers, and film archivists—argue that bigger principles are at stake. Does Congress have the constitutional right to remove works from the public domain? And if it does, what's stopping it from plucking out even more freely available works?

"If you can't rely on the status of something in the public domain today—that is, if you never know whether Congress is going to act again and yank it out—you're going to be a lot more cautious about doing anything with these materials," says Mr. Golan's lawyer, Anthony Falzone, executive director of the Fair Use Project and a lecturer in law at Stanford Law School. "You really destroy the value and the usefulness of the public domain in a profound way if the rug can be pulled out from under you at any time."

...

The change was surprising from a philosophical point of view: Under copyright law, the Constitution grants authors a limited monopoly over their works as an incentive to promote creativity. Over the years, Congress has often delayed the passage of works into the public domain by lengthening the duration of copyright terms. But removing pieces already there was different, Mr. Golan's lawyers argue, a radical change in what one scholar describes as the basic "physics" of the public domain.

That may sound abstract, but the impact on Mr. Golan was direct. When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan's university ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

Read the whole article.

Cory Doctorow on BoingBoing points out that the whole issue of The Chronicle of Higher Education is chock full of copyright issues:

New copyright lawsuits and policies have hobbled teaching and research. Now scholars are pushing back. In a special report, the Chronicle of Higher Education covers the copyright wars from several angles:

* A Professor Takes His Fight to the Supreme Court: The ability to teach and research many books, films, and pieces of music may hinge on Lawrence Golan's suit

* Colleges Lock Away Millions of Works: Academic archives are playing it safe, limiting online access to books, images, and artwork

* What You Don't Know About Copyright, But Should

* Pushing Back Against Legal Threats By Putting Fair Use Forward: A dynamic professorial duo leaps to the defense of beleaguered scholars

* Two Universities Under the Legal Gun

Click here to link to BoingBoing and get the embedded links to the articles in The Chronicle of Higher Education