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Supreme Court Will Hear Copyright Case
Academics are taking note of Eldred v. Ashcroft, a court case challenging the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, which will be heard by the U.S. Supreme Court after its new term starts in October. Before the act was passed, U.S. law protected an individual author’s work for fifty years after his or her death, while a “work for hire” created at the behest of an organization or corporation was protected for seventy-five years. The act extends by twenty years the period during which works in both categories retain copyright protection, and applies both to new works and retroactively to works already created.
Online publisher Eric Eldred and co-petitioners say that by keeping materials out of the public domain, the act helps large corporations at the expense of small companies and the public. Many of the petitioners are small publishers who specialize in republishing old works of music, film, or literature. Eldred, for example, runs a Web site that publishes free, searchable versions of classics by Henry James, Nathaniel Hawthorne, and other writers; another petitioner, Dover Publications, produces inexpensive editions of drawings and literature.
In a brief filed with the Supreme Court, petitioners compared Eldred’s Web site with a library, noting that whereas a library may simply purchase copies of books and make them available to the public, a Web based collection of texts is legally a republication subject to copyright rules, and therefore is more dependent on a “rich public domain.” The brief cites data estimating that only 18 percent of copyrighted works continue to earn royalties today. It notes that because of the difficulty of tracking down copyright holders to secure reprint permission, the other 82 percent of such works are unlikely to be reprinted as long as they are copyright protected. The net effect, the brief argues, is that the public is denied access to a variety of works for the benefit of the relatively few copyright holders whose works still produce revenue.
The case rests upon whether Congress, by passing the act and applying it to already-created works, violated the Constitution’s requirement that copyright be protected for a “limited” time and the Constitution’s intention that the copyright system “promote the progress of science.” Both the U.S. District Court for the District of Columbia and a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit have ruled against Eldred, who originally filed the case in 1999. The appellate court also held that the plaintiffs could not challenge the act on First Amendment grounds, because they lacked any right under the First Amendment to use the copyrighted works.
Supporters of the act, which include the Motion Picture Association of America, the Recording Industry of America, and the Association of American Publishers, say that it makes U.S. practice consistent with European law, which offers longer copyright protection, and that it encourages creativity by allowing creators of works to benefit from them for a longer period.
A number of scholars and academic groups filed amicus briefs in favor of Eldred with the Supreme Court. One filed by the American Historical Association, the American Library Association, the Medical Library Association, and the American Association of Law Libraries, among others, says that the copyright extension act prevents librarians, curators, archivists, historians, and scholars from “republishing and disseminating older works that may have no significant commercial value, but may be of strong historical or artistic interest,” which in turn “deters and complicates their efforts to preserve such works.” Briefs filed by constitutional scholars dispute the appellate court’s holding that copyrights are immune from challenges under the First Amendment. If upheld, the holding could have broad implications in other situations involving copyright.
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