 The Clarinet BBoard
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Author: Mark Charette
Date: 2011-05-04 18:27
This very important case will probably go to the U.S. Supreme Court next year.
http://www.huffingtonpost.com/edward-lee/supreme-court-to-review-copyright-public-domain_b_832886.html
Yes, some of you can help ...
From the PIJIP mailing list
Quote:
Since the petition for "cert" in this case was granted in March 2011, it is likely that the Court will hear oral arguments early in its next term, sometime in the last three months of this year. Then a decision could come anytime between January and June of 2012.
I have not heard who will be filing amicus briefs in this case, but I think it would be wonderful if some academic groups would weigh in, especially groups that represent teachers who use(d) music and art that would potentially be affected in their classrooms. A brief may not be as effective as a good meal and a couple of bottles of excellent wine, but it would be a way to make your voice heard.
Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@duke.edu
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Author: clariknight
Date: 2011-05-04 18:52
Please tell me that article was an Op/Ed...
On second thought, even if it is, it's still terribly written...
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Author: Ken Shaw ★2017
Date: 2011-05-04 20:26
/Lawyer's hat ON/
There are several complex issues, and the Supreme Court is unlikely to rule on what ordinary people take to be the central one.
First, the Supreme Court prefers to rule as narrowly as possible. If it can decide the case on a peripheral issue, it will do so and leave the bigger issue for later decision.
Here, Richard Kapp had made string orchestra arrangements of Shostakovich string quartets at a time when they were in the public domain. When the quartets were brought back under copyright, Kapp argued that he had relied on their being PD and that the restoration was invalid, at least as to him. The restoration statute had language about this situation. I think it's likely that the case will be decided by analysis of the reliance argument and the narrow statutory language, rather than by a ringing statement about all copyrights.
Second, the Constitution gives gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
In Eldred v. Ashcroft, The Supreme Court rejected the argument that the increase in the copyright term to 90 years was not truly a "limited time."
Therefore, the Golan parties can only make the indirect argument that bringing PD works back under copyright does not "promote" the Progress of Science and useful Arts.
The answer is that "We already decided in Eldred v. Ashcroft that by extending the copyright term to 90 years, Congress struck a balance between protection and public use. As long as this balance is rational, we may not upset it. Your argument about 'promoting' is a transparent attempt to reargue Eldred."
However, as I said, it's unlikely that the Supreme Court will even consider that argument when it can decide based on the "reliance" issue.
/Lawyer's hat OFF/
Ken Shaw
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Author: Lelia Loban ★2017
Date: 2011-05-05 13:44
It's going to be an interesting case. Writers watch it closely, too, because the 1994 law sucked some important genre fiction authors back into copyright. All of a sudden people writing pastiche fiction featuring famous characters from days of yore found our work in copyright purgatory.
"Sometimes the law is a ass."
Lelia
http://www.scoreexchange.com/profiles/Lelia_Loban
To hear the audio, click on the "Scorch Plug-In" box above the score.
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Author: Bill Patry
Date: 2011-05-06 21:45
Here are the actual questions the Supreme Court granted certiorari on:
QUESTION PRESENTED:
Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did
something unique in the history of American intellectual property law: It "restored" copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore
had a dramatic effect on Petitioners' free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners' right to perform, share and build upon works they had once been able to use freely.
The questions presented are:
1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
2. Does Section 514 violate the First Amendment of the United States
Constitution?
xxxx
I was on the principal drafters of this provision when I was copyright counsel to the U.S. House of Representatives. There are many excellent arguments against the provision on policy grounds. I doubt the Lee article makes them, at least well. But the purpose of the provision had nothing to do with promoting the progress of science. Instead, the provision was enacted in order to put the U.S. in compliance with the Berne Convention, which required us to pull out from the public domain foreign works that had fallen into the public domain because of failure to comply with formalities such as affixing the copyright notice and filing a renewal application.
I appreciate that restoring foreign works back into protection caused problems and maybe was bad policy, but if so then we shouldn't have joined the Berne Convention 6 years earlier. You can't join a treaty that obligates you to do something and then not follow through. This was particularly the case because the European Union had indicated to the U.S. government that if the 1994 legislation did not include the restoration provision, the U.S. would be taken to a GATT panel established under the 1994 GATT agreement that the 1994 legislation was implementing. We would have had no effective defense before such a panel.
In short, think what you will about the restoration provision, but understand why it is there.
Lawyer hat off, back to practicing bass clarinet.
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Author: Ken Shaw ★2017
Date: 2011-05-06 22:59
Bill -
Many thanks for the expertise. Your explanation is exactly right, but I think there is more to say.
The Copyright Term Extension Act was called the "Sonny Bono Act" or the "Mickey Mouse Protection Act." It was enacted primarily to benefit the Disney Company, whose copyright on Mickey Mouse was about to expire.
Copyrights exist to permit the creators to have the exclusive right to use their creations "for limited times." It must be balanced against the public's right to have unrestricted access after a copyright expires. For many years, the term was 28 years plus a 28 year renewal. The CTEA extended that period to at least 95 years http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act, which, in my opinion, is an excessive period.
Lawrence Lessig made what I think was an unanswerable policy argument and a tenable legal argument in the Supreme Court on the appeal of Eldred v. Ashcroft. The Supreme Court ignored the policy argument and rejected the legal argument, primarily because on "political questions" such as this, Congress may do pretty much as it pleases.
Regardless of what a GATT panel might have done on the "restoration" issue, there was no such reason to extend the copyright term to its present (in my opinion) excessive length.
Ken Shaw
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Author: Bill Patry
Date: 2011-05-07 00:34
Hi Ken. In 1994, we were approached in the House Judiciary Committee to extend the term of protection, but said no. We thought it bad policy and I still do. I think Larry Lessig's strategy of bringing Eldred in the DC Circuit and giving up the argument that the Promote the Progress of Science clause acts as a real, substantive limitation on what Congress can do was a mistake.I have argued the Promote the Progress language is a real substantive limitation on Congress' power, but the Supreme Court rejected that argument in Eldred, so I don't see how they can dial back on that in Golan.
I do think they will reverse in Golan, but it will be interesting to see on what ground. The provision can be justified as an exercise of Congress's Treaty Power (Missouri v. Holland), but the First Amendment might trump that. (Reid v. Covert)
I entirely agree with you more that the current term is excessive and harmful.
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Author: Bill Patry
Date: 2011-05-07 14:10
At the end, I meant to say "I entirely agree with you that the current term is excessive and harmful": the "more" in my original post was an error but I wasn't allowed to edit it for corrections.
There is another thing to think of: assume that the Supreme Court holds the restored copyrights unconstitutional and closes the door entirely to Congress amending the law to make it constitutional. Then what? From the perspective of those of us wanting to use foreign music that should have been and now is in the public domain, it is a happy day. But, the U.S. will be in violation of its treaty obligations, and it is expected that the European Union won't sit on its hands: after all, it will be EU authors (or estates of those authors) whose works are being copied in the U.S. without payment. The 1994 General Agreement on Tariffs and Trade (GATT) permits what is called cross-sector retaliation in such circumstances. This means that if the U.S. is taken to a GATT panel and loses (as it likely would), then the U.S. can be fined, and the EU can retaliate: it could for example, impose heavy tariff duties on the importation of U.S. wine (cross-sector retaliation) or it could impose heavy tariff duties on the importation of U.S. copyrighted works, like music and movies (within sector retaliation). The U.S. might try to buy its way out of the mess like it did once before but then the money comes from all of us including those who have no connection to music.
My point is that while we who will use foreign scores will be better off, others in the U.S. economy will suffer and maybe more than we will gain. This isn't an argument in favor of keeping an unconstitutional provision but it instead points out a consequence of that victory some may not realize.
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