Looking ahead and shaping the future: Provoking change in copyright law

Journal of the Copyright Society of the U.S.A.

Volumn 49, Issue 2, 2001, Pages 549-583

  Crews, Kenneth D ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 0040376408     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (203)

1. The aphorism "Looking Ahead" derives from the title of one of the final sessions of the conference: "Looking Ahead and Shaping the Future."
2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541.
3. 17 U.S.C. § 301(a) (2000) (preempting common-law copyright).
4. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (revising 17 U.S.C. §§ 401, 405).
5. As will be detailed later in the article, the duration for works is now generally life of the author plus seventy years. See 17 U.S.C. § 302(a) (2000).
6. Id. § 202.
7. Id. § 204.
8. Id. §§ 107-122.
9. Berne Convention Implementation Act of 1988, supra note 4.
10. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).
11. Audio Home Recording Act, Pub. L. No. 102-563, 106 Stat. 4237 (1992).
12. Digital Performance Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336 (1995) (codified at 17 U.S.C. §§ 106(6) and 114) (2000). For a devastating critique of the DPRSRA, see David Nimmer, Ignoring the Public, Part I: On the Absurd Complexity of the Digital Audio Transmission Right, 7 UCLA ENT. L. REV. 189 (2000).
13. No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997).
14. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, § 101, 112
15. See generally Michael H. Davis, "Have I Stayed Too Long?", 52 FLA. L. REV. 989 (2000); Christina N. Gifford, The Sonny Bono Copyright Term Extension Act, 30 U. MEM. L. REV. 363 (2000); Marci A. Hamilton, An Evaluation of the Copyright Extension Act of 1995: Copyright Duration Extension and the Dark Heart of Copyright, 14 CARDOZO ARTS & ENT L.J. 655 (1996).
16. See generally Michael H. Davis, "Have I Stayed Too Long?", 52 FLA. L. REV. 989 (2000); Christina N. Gifford, The Sonny Bono Copyright Term Extension Act, 30 U. MEM. L. REV. 363 (2000); Marci A. Hamilton, An Evaluation of the Copyright Extension Act of 1995: Copyright Duration Extension and the Dark Heart of Copyright, 14 CARDOZO ARTS & ENT L.J. 655 (1996).
17. See generally Michael H. Davis, "Have I Stayed Too Long?", 52 FLA. L. REV. 989 (2000); Christina N. Gifford, The Sonny Bono Copyright Term Extension Act, 30 U. MEM. L. REV. 363 (2000); Marci A. Hamilton, An Evaluation of the Copyright Extension Act of 1995: Copyright Duration Extension and the Dark Heart of Copyright, 14 CARDOZO ARTS & ENT L.J. 655 (1996).
18. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1802).
19. Sonny Bono Copyright Term Extension Act, supra note 14. See supra note 15 (including an overview of the history of copyright duration in the U.S.) In her comments at this conference, Professor Laura N. Gasaway noted the irony of granting additional rights purportedly to encourage works that are already in existence: "you can't stimulate dead authors." The validity of the Term Extension Act is currently before the U.S. Supreme Court. See Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir. 2001), cert. granted, 122 S.Ct. 1170 (2002).
20. 17 U.S.C. § 106(6) (2000).
21. Id. § 106A.
22. Id. § 102(a)(8).
23. Digital Millennium Copyright Act, supra note 10 (adding 17 U.S.C. §§ 1201 and 1202).
24. 17 U.S.C. §§ 401(a), 408(a) (2000). However, formalities of registration and notice can provide some additional benefits for the copyright owner. See supra notes 135-137.
25. Id. § 104A.
26. In his presentation at this conference, Stephen E. Weil emphasized the "assault on the public domain," and cited the erosion of fair use as a leading example. See generally Stephen E. Weil, Copyright and Its Counterweights: A Faltering Balance, 49 J. COPYR. SOC'Y 357 (2001).
27. Repealed in their entirety are the original text of Sections 116 and 117.
28. Entirely new since the original 1976 Act is the language of Sections 116, 117, 119, 120, 121, and 122
29. Revised since the 1976 Act are Sections 107, 108, 109, 110, 111, 112, 113, 114, 115, and 118.
30. 17 U.S.C. § 114(d) (2000).
31. Architectural Works Copyright Protection Act, Pub. L. No. 101-650, 104 Stat. 5089, 5133 (1990).
32. 17 U.S.C. § 120(a) (2000).
33. Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5134 (revising 17 U.S.C. § 109(b)).
34. 17 U.S.C. § 1201 (2000).
35. Often a copyright owner, publisher, or other provider of copyrighted information could create access restrictions and create a legal right against one who violates the access restrictions - but that right was one of contract and not copyright law. The difference is monumental. The current statutory right broadly applies to all users, all copyrighted materials, and nearly all breaches of the protection system. A right founded in contract is limited to the materials covered by the contract and applies only to the parties who consent to being bound by the contract terms. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (holding that private contracts are not preempted by the general application of copyright law).
36. see generally Michael Landau, Has the Digital Millennium Copyright Act Really Created a New Exclusive Right of Access?: Attempting to Reach a Balance Between Users' and Content Providers' Rights, 49 J. COPYR. SOC'Y 277 (2001).
37. 17 U.S.C. § 1202 (2000).
38. Id. § 106A.
39. Id. § 1202(c) (defining broadly the scope of CMI). The statutory protection for CMI does not specifically end with the expiration of copyright for the work in question, but the right is generally limited to the removal of CMI under circumstances that might, for example, conceal an infringement. An infringement can occur only during the term of protection. A violation of Section 1202 could theoretically occur after expiration. For example, one might act today to conceal a past infringement; the copyright might have expired in the meantime, and the statute of limitations might not have expired. See id. § 507 (setting the statute of limitations for infringements).
40. Id. § 1008.
41. Id. §§ 1003-1007.
42. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 3477, 4974 (1994).
43. United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied, 529 U.S. 1036 (2000).
44. U.S. CONST. art. I, § 8 ("The Congress shall have 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.").
45. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884) (finding that a photograph is a "writing" protectible by copyright). See also United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied, 529 U.S. 1036 (2000) (holding that such a recording may not be a "writing," but Congress can still grant protection under its interstate-commerce powers). For another constitutional argument against the anti-bootlegging legislation, see Peter A. Jaszi, Goodbye to All That - A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 602-04 (1996).
46. For a recent study of the constitutional foundation of copyright law and the possible limits that the constitutional language imposes on the shape of the law, see Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 ILL. L. REV. 1119. For a general discussion of the goals of copyright law, see Robert A. Kreiss, Accessibility and Commercializaion in Copyright Theory, 43 UCLA L. REV. 6-8 (1995).
47. For a recent study of the constitutional foundation of copyright law and the possible limits that the constitutional language imposes on the shape of the law, see Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 ILL. L. REV. 1119. For a general discussion of the goals of copyright law, see Robert A. Kreiss, Accessibility and Commercializaion in Copyright Theory, 43 UCLA L. REV. 6-8 (1995).
48. Jaszi, supra note 43, at 603-04.
49. See generally Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587 (1997).
50. Professor Litman has written extensively on Congress's remissive dealings with copyright legislation. See, e.g., Jessica Litman, Copyright, Compromise and Legislative History, 12 CORNELL L. REV. 857 (1987).
51. See generally J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997); Paula Baron, Databases and the Commodification of Information, 49 J. COPYR. SOC'Y 131 (2001).
52. See generally J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997); Paula Baron, Databases and the Commodification of Information, 49 J. COPYR. SOC'Y 131 (2001).
53. Feist Publ'ns v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
54. See generally Mary Maureen Brown, Robert M. Bryan & John M. Conley, Database Protection in a Digital World, 6 RICH. J.L. & TECH. 2 (1999).
55. U.S. CONST. art I, § 8. See generally Jaszi, supra note 43.
56. 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8D.02[C] (2002).
57. See generally Pamela Samuelson, Economic and Constitutional Influences on Copyright Law in the United States, in UNITED STATES INTELLECTUAL PROPERTY: LAW AND POLICY _ (Hugh Hansen ed., forthcoming 2002); Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1 MARQ. INTELL. PROP. L. REV. 3. (2000).
58. See generally Pamela Samuelson, Economic and Constitutional Influences on Copyright Law in the United States, in UNITED STATES INTELLECTUAL PROPERTY: LAW AND POLICY _ (Hugh Hansen ed., forthcoming 2002); Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1 MARQ. INTELL. PROP. L. REV. 3. (2000).
59. 17 U.S.C. § 106A (2000).
60. See, e.g., Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
61. See, e.g., IND. CODE § 32-13-1-1 et seq. (2000). See generally Scott L. Whiteleather, Still Dancing: An Article on Astaire v. Best Video and its Lasting Repercussions, 7 UCLA L. REV. 267 (2000).
62. See generally Leo L. Clarke, Performance Risk, Form Contracts and UCITA, 7 MICH. TELECOMM. & TECH. L. REV. 1 (2001).
63. UCITA has engendered sharply divided views of its merits. See, e.g., Raymond T. Nimmer, UCITA: A Commercial Contract Code for the Information Age, HOUS. LAW., Dec. 2001, at 18 (strongly supportive of UCITA); James S. Heller, UCITA: Still Crazy After All These Years, and Still Not Ready for Prime Time, 8 RICH. J.L. & TECH. 5 (2001), at http:// www.richmond.edu/∼jolt/flash_site/framesea.html (sharply critical of UCITA.)
64. UCITA has engendered sharply divided views of its merits. See, e.g., Raymond T. Nimmer, UCITA: A Commercial Contract Code for the Information Age, HOUS. LAW., Dec. 2001, at 18 (strongly supportive of UCITA); James S. Heller, UCITA: Still Crazy After All These Years, and Still Not Ready for Prime Time, 8 RICH. J.L. & TECH. 5 (2001), at http:// www.richmond.edu/∼jolt/flash_site/framesea.html (sharply critical of UCITA.)
65. For example, the company CMG Worldwide, Inc., based in Indianapolis, Indiana, specializes in licensing the publicity rights of its clients, both living and dead. See http://www.cmgww.com.
66. Pamela Samuelson notes that while the pressure to harmonize is strong, the economic roots of American copyright law will likely always prevent genuine harmonization even with respect to many fundamentals. She notes especially that American copyright law gives distinctive treatment of moral rights, fair use, and the work-made-for-hire doctrine. Pamela Samuelson, supra note 53, at _ ("Because they are grounded in economic thinking, these doctrines are among the features of American copyright law that are quite unlikely to change toward the European authors' rights model.").
67. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised, Paris, July 24, 1971, 25 U.S.T. 1341.
68. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, vol. 31, 33 I.L.M. 81 (1994). For a general examination of TRIPs, see N. Ayse Odman, Using TRIPS to Make the Innovation Process Work, 3 J. WORLD INTELL. PROP. 343 (2000).
69. The importance of compliance with international agreements has become more significant as the World Trade Organization ruled recently that provision of the U.S. Copyright Act violates TRIPs and consequently challenges the authority of Congress to make exemptions to the rights of copyright owners. See generally Jane C. Ginsburg, Toward Supranational Copyright Law? The WTO Panel Decision and the "Three-Step Test" for Copyright Exceptions, 187 REVUE INTERNATIONALE DU DROIT D'AUTEUR 3 (2001); Laura A. McCluggage, Section 110(5) and the Fairness in Music Licensing Act: Will the WTO Decide the United States Must Pay to Play?, 40 IDEA: J.L. & TECH. 1 (2000). See also Tyler Newby, What's Fair Here is not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law?, 51 STAN. L. REV. 1633 (1999) (raising the possibility that fair use might not withstand scrutiny under TRIPs).
70. The importance of compliance with international agreements has become more significant as the World Trade Organization ruled recently that provision of the U.S. Copyright Act violates TRIPs and consequently challenges the authority of Congress to make exemptions to the rights of copyright owners. See generally Jane C. Ginsburg, Toward Supranational Copyright Law? The WTO Panel Decision and the "Three-Step Test" for Copyright Exceptions, 187 REVUE INTERNATIONALE DU DROIT D'AUTEUR 3 (2001); Laura A. McCluggage, Section 110(5) and the Fairness in Music Licensing Act: Will the WTO Decide the United States Must Pay to Play?, 40 IDEA: J.L. & TECH. 1 (2000). See also Tyler Newby, What's Fair Here is not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law?, 51 STAN. L. REV. 1633 (1999) (raising the possibility that fair use might not withstand scrutiny under TRIPs).
71. The importance of compliance with international agreements has become more significant as the World Trade Organization ruled recently that provision of the U.S. Copyright Act violates TRIPs and consequently challenges the authority of Congress to make exemptions to the rights of copyright owners. See generally Jane C. Ginsburg, Toward Supranational Copyright Law? The WTO Panel Decision and the "Three-Step Test" for Copyright Exceptions, 187 REVUE INTERNATIONALE DU DROIT D'AUTEUR 3 (2001); Laura A. McCluggage, Section 110(5) and the Fairness in Music Licensing Act: Will the WTO Decide the United States Must Pay to Play?, 40 IDEA: J.L. & TECH. 1 (2000). See also Tyler Newby, What's Fair Here is not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law?, 51 STAN. L. REV. 1633 (1999) (raising the possibility that fair use might not withstand scrutiny under TRIPs).
72. Doris Estelle Long, "Globalization": A Future Trend or a Satisfying Mirage?, 49 J. COPYR. SOC'Y 313, 353-54 (2001).
73. Kwall, supra note 53.
74. See generally 31 IIC: INT'L REV. OF INDUS. PROP. & COPYRIGHT 118 (2000) (reporting news item of a report from the European Commission criticizing the "inadequate protection of moral rights" in the U.S.).
75. H.R. REP. NO. 94-1476, at 135 (1976).
76. Sonny Bono Copyright Term Extension Act, supra note 14, § 101.
77. See, e.g., Berne Convention, supra note 61, art. 7(1) (providing for a general term of protection of life plus fifty years).
78. See generally Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469, 477 (2000) ("Almost every significant reform of U.S. copyright law over the last twelve years . . . has reflected international influences.").
79. 2 NIMMER & NIMMER, supra note 52, § 7.01.
80. In accordance with the terms of these treaties, Congress added Section 104A to the Copyright Act, and later amended it to make the restoration of copyrights more comprehensive. See North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993); Uruguay Round Agreements Act, supra note 40, 108 Stat. at 4973.
81. Digital Millennium Copyright Act, supra note 10.
82. See 17 U.S.C. §§ 1201, 1202 (2000).
83. For general background on events leading to the WIPO Copyright Treaty, see Susan A. Mort, The WTO, WIPO & the Internet: Confounding the Borders of Copyright and Neighboring Rights, 8 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 173 (1997). For a critical overview of events, particularly the relationship between the terms of the treaty and the failure of earlier legislation in Congress, see the various documents and chronology of events on the Web site of the Digital Future Coalition, http://www.dfc.org/dfc1/Archives/ international/story.html.
84. See 17 U.S.C. § 106A (2000).
85. See id. § 412 (barring recovery of statutory damages and attorney fees and costs unless the work is registered in a timely manner).
86. See id. § 110(5).
87. WTO Report of the Panel on United States - section 110(5) of the US Copyright Act, WT/DS160/R (June 15, 2000).
88. WTO Arbitration Report, WT/DS160/12 (Jan. 15, 2001).
89. One can speculate on the many possible reasons why Congress has failed to act. Perhaps the issue is of relatively little importance to members of Congress. Perhaps the penalties for noncompliance are neither threat nor motivation. Perhaps members of Congress are choosing to be defiant and not permit international pressure to dictate domestic legislation. We may never know. Perhaps as important as any reason is the fortuitous development of congressional politics. The chief proponent of the revision of Section 110(5) in 1998 was Representative James Sensenbrenner of Wisconsin. Since that time he has assumed the chairmanship of the Intellectual Property Subcommittee, and in that capacity has strong control over new legislation. He may not permit any action on a bill that would undercut the measure he pursued so vigorously a few years before.
90. See, e.g., EU, U.S. OK Copyright Payment Deal, AP ONLINE, Dec. 18, 2001.
91. See, e.g., Long, supra note 64, at 707 (arguing that often "harmonization is a mirage, which fails to establish effective standards").
92. Samuelson, supra note 53, at _ (noting that true harmonization with many fundamental aspects of European law will never likely occur). See also Long, supra note 64, at 704 (calling the process of harmonization "inexorable").
93. In her presentation at this conference, Professor Doris E. Long reminded us that international influences on copyright are multidirectional. See id. at 732.
94. Jane C. Ginsburg, International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?, 47 J. COPYR. SOC'Y. 265, 289 (2000) ("international norms continue to constrain, if not supersede, national copyright laws").
95. Of course, any such prospect runs counter to the accelerating trend toward greater harmonization. Long, supra note 64, at 735.
96. See generally Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338 (1992); Samuelson, supra note 53.
97. Jaszi, supra note 43, at 596 (cautioning against the loss of "constitutionally-grounded arguments for limitations on proprietary rights").
98. Treatises and monographs American copyright law tacitly struggle with addressing all that comes under the rubric of "copyright" in order to keep the latest books ostensibly complete. At one extreme is the Nimmer treatise, which has grown to ten volumes, not merely because of the expanding statutes and accelerating legislation, but also because the quest of addressing "copyright" now presents the need to examine software controls, free speech, constitutional constraints on jurisdiction, and a host of related issues. See NIMMER & NIMMER, supra note 52. At the other extreme is the tortured effort of some writers to fit all of copyright into a single, brief book. For example, the latest edition of William S. Strong, The Copyright Handbook (5th ed. 1999), represents an attempt to cover too much in too little space. The need for succinct coverage remains, but the ability to provide it is quickly fading. For the present author's critique of this dilemma, see 71 LIB. Q. 405 (2001).
99. Treatises and monographs American copyright law tacitly struggle with addressing all that comes under the rubric of "copyright" in order to keep the latest books ostensibly complete. At one extreme is the Nimmer treatise, which has grown to ten volumes, not merely because of the expanding statutes and accelerating legislation, but also because the quest of addressing "copyright" now presents the need to examine software controls, free speech, constitutional constraints on jurisdiction, and a host of related issues. See NIMMER & NIMMER, supra note 52. At the other extreme is the tortured effort of some writers to fit all of copyright into a single, brief book. For example, the latest edition of William S. Strong, The Copyright Handbook (5th ed. 1999), represents an attempt to cover too much in too little space. The need for succinct coverage remains, but the ability to provide it is quickly fading. For the present author's critique of this dilemma, see 71 LIB. Q. 405 (2001).
100. Samuelson, supra note 53, at _ ("Major copyright industries in the U.S. strongly object to moral rights because they may interfere with certain economic arrangements that these industries wish to make.").
101. See generally Litman, supra note 47.
102. See 17 U.S.C. § 114 (2000).
103. See Nimmer, supra note 12.
104. See generally Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 FORDHAM L. REV. 1025 (1998).
105. In his comments at this conference, Professor Alfred C. Yen emphasized that private transactions are increasingly displacing a structured and consistent application of copyright law.
106. See generally Jaszi, supra note 43.
107. My nomination for an example of a statutory change added to bill to gain support is the amendment in 1998 to Section 108(h) of the Copyright Act. It provides an opportunity for librarians to use works under limited circumances during the final twenty years of the term of copyright protection. Congress added the language to the Copyright Term Extension Act to address some concerns of librarians, but the restrictions in the statute make it highly impractical and probably of little use to anyone. See Sonny Bono Copyright Term Extension Act, supra note 14, § 101.
108. The literature attacking the DMCA is burgeoning. For one example of the breadth of the criticism, see http://www.anti-dmca.org. Among other incidents, this Web site offers some details about the case of Professor Felten, who conducts research on computer coding for security measures, but has been threatened with legal action should he publish his research, because his original programming may be used to test security measures and hence "circumvent" technological protection systems.
109. In her presentation at this conference, Professor Debora Halbert spoke of a "preferred future." Perhaps that is my aspiration as well. See generally Debora Halbert, Intellectual Property in the Year 2025, 49 J. COPYR. SOC'Y 225, 229 (2001) (commenting on "how we would like to see it [copyright law] develop" in coming years).
110. Professor Litman has noted the disparity between the general public's perceptions of copyright and the law's actual meaning and effects. See Jessica Litman, Copyright Noncompliance (Or Why We Can't "Just Say Yes" to Licensing), 29 N.Y.U. J. INT'L L. & POL. 238-40 (1997); Jessica Litman, Copyright as Myth, 53 U. PITT. L. REV. 235 (1991). See also Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. 578 (1997) ("This cognitive dissonance between copyright law and the real world is troubling.").
111. Professor Litman has noted the disparity between the general public's perceptions of copyright and the law's actual meaning and effects. See Jessica Litman, Copyright Noncompliance (Or Why We Can't "Just Say Yes" to Licensing), 29 N.Y.U. J. INT'L L. & POL. 238-40 (1997); Jessica Litman, Copyright as Myth, 53 U. PITT. L. REV. 235 (1991). See also Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. 578 (1997) ("This cognitive dissonance between copyright law and the real world is troubling.").
112. Professor Litman has noted the disparity between the general public's perceptions of copyright and the law's actual meaning and effects. See Jessica Litman, Copyright Noncompliance (Or Why We Can't "Just Say Yes" to Licensing), 29 N.Y.U. J. INT'L L. & POL. 238-40 (1997); Jessica Litman, Copyright as Myth, 53 U. PITT. L. REV. 235 (1991). See also Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. 578 (1997) ("This cognitive dissonance between copyright law and the real world is troubling.").
113. In the words of Professor Sheldon Halpern, organizer of this conference, the "doctrine of nondiscrimination" in the application of copyright law must die.
114. For example, Section 106 establishes the rights of copyright owners, but it grants some of the rights only with respect to certain types of works. Section 110 creates specific exceptions to the public performance right, but often only with respect to "nondramatic musical works." 17 U.S.C. §§ 106, 110 (2000).
115. Id. §§ 901-914.
116. Id. §§ 1301-1332.
117. Of course, the law makes such distinctions already. See, e.g., Copyright Act of the U.S., 17 U.S.C. §§ 114-115 (applying distinctive rules to musical compositions and sound recordings) and 17 U.S.C. § 121 (permitting photographs of architectural works).
118. 17 U.S.C. §§ 901-914 (2000).
119. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), aff'g 114 F. Supp. 2d 896 (N.D. Cal. 2000).
120. 17 U.S.C. § 106 (2000).
121. Id. § 106(4)-(5) (applying the performance right only with respect to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works" and the display right only to "literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work").
122. Id. § 110(2).
123. Id. § 115.
124. Id. § 121.
125. Id. § 904.
126. Id. § 106A(d). Yet the statute granting moral rights oddly allows these rights to last for the entire term of protection with respect to eligible works of art created before enactment of the statute, but to which the artist had not previously transferred title. Id. § 106A(d)(2). While moral rights apply only to certain works of visual arts, broad classes of such works are further exempted from the benefits of moral rights. See id. § 101 (exempting from the definition of "work of visual art" works made for hire and works made for advertising purposes).
127. Dawn C. Nunziato, Intergenerational Justice Between Authors in the Digital Age, 9 J. INTELL. PROP. L. 116 (2002).
128. Professor Lessig has avoided all of the problems of variable terms of protection by proposing a terms of protection of merely five years for published works of all types, renewable fifteen times. See LAWRENCE LESSIG, THE FUTURE OF IDEAS 251-52 (2001).
129. Berne Convention, supra note 61, art. 7(2).
130. Agreement on Trade-Related Aspects of Intellectual Property Rights, supra note 62, art. 14(5).
131. While both the Berne Convention and TRIPs generally provide for minimum terms of protection, the Berne Convention specifies that longer terms are permitted. Hence, American law can provide a general term of life plus seventy years and grant that longer terms with respect to phonograms, even though the shorter term is possible.
132. See generally Hisamitsu Arai, Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation, 3 J. WORLD INTELL. PROP. 423, 423 (2000) ("The first imperative is to provide broad protection for intellectual property rights."); Mark Wing & Ewan Kirk, European/U.S. Copyright Law Reform: Is a Balance Being Achieved?, 2 INTEL. PROP. Q. 138, 138 (2000) ("providing the strongest legal framework for protection of copyright and related rights on the Internet to encourage investment" is the goal of recent legislation).
133. See generally Hisamitsu Arai, Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation, 3 J. WORLD INTELL. PROP. 423, 423 (2000) ("The first imperative is to provide broad protection for intellectual property rights."); Mark Wing & Ewan Kirk, European/U.S. Copyright Law Reform: Is a Balance Being Achieved?, 2 INTEL. PROP. Q. 138, 138 (2000) ("providing the strongest legal framework for protection of copyright and related rights on the Internet to encourage investment" is the goal of recent legislation).
134. Weil, supra note 24, at 360.
135. In addition to my concerns expressed in this article, I share the concerns examined by other writers regarding the implications of international harmonization on the interests of countries in a considerably different state of economic development from that experienced by most Western countries. See generally Evelyn Su, The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries, 23 HOUS. J. INT'L L. 169, 200 (2000) (suggesting that less-developed countries will not benefit from the stronger intellectual property protection advanced by international agreements).
136. See Jerome N. Epping, Jr., Harmonizing The United States and European Community Copyright Terms: Needed Adjustment or Money for Nothing?, 65 U. CIN. L. REV. 183 (1996) (examining sympathetically the goal of harmonization, but questions whether harmonization will be achieved through term extension and whether harmonization is even possible).
137. A bowdlerized or merely slightly revised version of a work - one with errors and misconstructions - could be a "derivative" that might harm the interests of the author. Any relinquishment of control opens doors to these unsavory possibilities. Perhaps expanded concepts of moral rights, defamation, or unfair trade practices could offer a more appropriate and focused remedy that could block harmful activity, while not hindering other creativity. Current American law does not distinguish well between claims that protect economic interests, and those that would protect personal interests. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (asserting copyright infringement when the concerns seem more centered on the integrity of the original song); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (asserting copyright infringement to protect the reputation of the original book). French law, by contrast, grants perpetual moral rights that can be asserted to protect one's reputation long after the copyright and the economic rights have expired. See, e.g., PUBLISHERS WEEKLY, June 25, 2001, at 17 (heirs of Victor Hugo asserting moral rights under French law - ultimately unsuccessfully - long after expiration of the copyrights).
138. See also Peter B. Hirtle, Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Uses, 49 J. COPYR. SOC'Y 259 (2001) (arguing for a shorter term of protection for unpublished manuscripts of historical interest).
139. Berne Convention, supra note, 61, art. 7(1), ("The term of protection granted by this Convention shall be the life of the author and fifty years after his death.").
140. Lessig acknowledges the same challenge. In connection with his proposal for renewable five-year terms (see note 117 supra) he lists several treaties that right now bar such creative restructuring of the law. See LESSIG, supra note 117, at 330 n.4.
141. 17 U.S.C. § 108(h) (2000) (allows libraries to make limited uses of copyrighted works during the final twenty years of copyright protection, but subject only to rigorous conditions). See generally Ginsburg, Bundle, supra note 86, at 285 (noting that the ability to create exceptions is one of the opportunities left for "national preservation"). Although I point to Section 108(h) as a model for a conceptual structure, I am elsewhere in this article critical of the origins and practicability of this particular code section. See supra note 98 and infra note 177.
142. The Berne Convention and TRIPs generally allow member countries to create statutory exceptions to the rights of copyright owners, but only subject to a so-called "three-step" test for their validity. See generally Ginsburg, WTO Panel Decision, supra note 63, at _.
143. 17 U.S.C. § 303(a) (2000).
144. Another model for this construct of the law lies in some of the earliest American copyright statutes. Before Congress was established, the states of the new country enacted copyright codes, and one version adopted in several states granted exclusive rights to the copyright owner of a book, but only so long as the owner made the book available to the public at a reasonable price. Failing to do so, other members of the public could take on the duty to publish the book. Like my proposal, the law granted rights, but only as an inducement for actually using the rights for the public benefit. For the text of the state statutes that preceded 1790, see 8 NIMMER & NIMMER, supra note 52, app. 7. A recent analogy is a bill to revise the patent law by granting additional six months of protection for pharmaceuticals, provided the patent owner pursue research on their use for pediatric medicine. The social exchange is clear: additional rights in exchange for creative extension of the use of the work for a social benefit. See Best Pharmaceuticals for Children Act, H.R. 3047, 107th Cong. (2001).
145. The earliest U.S. copyright statutes, from 1790, required registration of the work for copyright protection, but Congress eliminated that requirement with the first revision of the law in 1802.
146. 17 U.S.C. § 410(a) (2000).
147. Id. § 412. See also id. § 411 (a) (requiring in general registration before filing an infringement lawsuit, but registration for this purpose can be accomplished long after creation or publication of the work).
148. Id. § 407.
149. See generally Kenneth D. Crews, Legal Deposit in Four Countries: Laws and Library Services, 80 L. LIB. J. 551 (1988) (regarding the deposit requirement which often motivates registration).
150. See 17 U.S.C. § 408(a) (2000) ("Such registration is not a condition of copyright protection.").
151. Berne Convention, supra note 61, art. 5(2).
152. In his presentation at this conference, Peter Hirtle noted the problem of "orphaned works" that are protected by copyright, but the owners are impossible to identify or locate. A system of registration holds the promise of occasionally alleviating this common dilemma. See Hirtle, supra note 126, at 261.
153. Sonny Bono Copyright Term Extension Act, supra note 14, § 101.
154. Compare this suggestion to Section 104A(c) of the U.S. Copyright Act. When Congress provided for the restoration of foreign copyrights in 1996, the law allowed those members of the public, such as publishers, who were relying on the public-domain status of the works to be identified as "reliance parties." The owner of the restored copyrights has rights against reliance parties under some circumstances only if the owner files a "notice of intent to enforce" the copyright. In effect, a form of registration is required, which can also involve publication in the Federal Register and sometimes service on the individual reliance party, before the owner has full rights. My proposal here is no more burdensome and probably less suspect under Berne.
155. 17 U.S.C. § 412 (2000) (making registration in many cases a precondition to an award of statutory damages or attorney fees).
156. One might find other examples in the current code. Note 142, supra, mentions the need for holders of "restored" copyrights to register claims in order to act against "reliance parties." Note 135, supra, mentions Section 411, which requires registration as a precondition to filing an infringement lawsuit with respect to domestic works.
157. 17 U.S.C. § 110(4) (2000).
158. Later in this article I discuss the prospect of adopting a system of "negative check-offs." Section 110(4) suggests something of an implied license for public use and perhaps even a "reverse negative check-off."
159. In 1997, Congress added Section 121 allowing certain organizations to make special formats of some works for use by persons who are blind or have other disabilities. Legislative Branch Appropriations Act, Pub. L. No. 104-197, 110 Stat. 5089, 5133 (1997). A few years later, Congress repealed Section 710, which authorized the Copyright Office to include on registration forms a grant to the Library of Congress to make Braille or similar formats of works. Work Made for Hire and Technical Corrections Act of 2000, Pub. L. No. 106-379, 114 Stat. 1444, 1445 (2000). It is worth mentioning that the former Section 710 specified that the copyright owner was granting a "license" to the Library of Congress; one could thus argue that this was not a circumscription of the owner's rights, but rather a grant of permission that indeed was revocable.
160. For example, see a recent issue of the Indiana Law Review, which includes this notice: "Copyright 2_, The Trustees of Indiana University. Except as may be expressly provided elsewhere in this publication, permission is hereby granted to reproduce and distribute copies of individual works from this publication for nonprofit educational purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act."
161. Such a system might work well as either a governmental function or as a private enterprise. The guilds in Hollywood, for example, offer private systems for registering claims of authorship of screenplays. The Authors Guild cannot create a copyright claim, but it can create a reliable system for recording the existence of works and generating credible evidence to use in disputes. The guilds lack an official standing, but they provide an important model for the possibilities of private regulation of a "negative check-off."
162. Without a statutorily sanctioned system, the legal protection for the user would be relatively minimal, likely rooted in common-law doctrines such as promissory estoppel, which can protect parties who act in reliance on promises from others.
163. The Copyright Act addresses preemption of other law at Section 301, but the scope of preemption is far from comprehensive. 17 U.S.C. § 301 (2000).
164. Yasmine Kaplun, A Reluctant Europe follow in America's Footsteps along the Road to Software Protection, 3 J. WORLD INTELL. PROP. 441, 442 (2000) (noting the problem of "ownership rights to hybrid software" in the U.S.).
165. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999). For an overview of selected, recent cases on fair use and a discussion of recent trends in the law, see Neil Weinstock Netanel, From the Dead Sea Scrolls to the Digital Millennium: Recent Developments in Copyright Law, 9 TEX. INTELL. PROP. L.J. 19, 45-46 (2000).
166. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999). For an overview of selected, recent cases on fair use and a discussion of recent trends in the law, see Neil Weinstock Netanel, From the Dead Sea Scrolls to the Digital Millennium: Recent Developments in Copyright Law, 9 TEX. INTELL. PROP. L.J. 19, 45-46 (2000).
167. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (noting the possible conflict between free speech and copyright protection, but holding nonetheless that the use of copyrighted materials in news reporting is an infringement).
168. The U.S. Supreme Court has granted certiorari in the case of Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir. 2001), cert. granted, 122 S.Ct. 1170 (2002), and the questions posed in the appeal focus on the relationship between copyright law and First Amendment rights. The decision, expected in mid-2003, should give some direction to lower courts that are increasingly confronting this issue. See also Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (scrutinizing the implications of Section 1201 of the Copyright Act on the freedom of speech).
169. See supra text accompanying notes 57-58.
170. See Heller, supra note 58, at ¶ 17 (attacking the potential that UCITA can allow private contracts to override fair use and other provisions in the public interest).
171. Of course, some of my proposals in this article are founded on the concept of copyright owners voluntarily waiving rights. See supra text accompanying notes 147-150.
172. UCITA, sec. 105. 160 17 U.S.C. § 110(1) (2000) (permitting a teacher to perform or display works, including videotapes, in the face-to-face classroom).
173. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (1908).
174. 17 U.S.C. § 203 (applicable to transfers made on or after January 1, 1978) and § 304(c) (applicable to transfers made before 1978).
175. Transfers made on or after January 1, 1978 are generally terminable during a window that opens thirty-five years after the transfer. 17 U.S.C. § 203(a)(3) (2000). Transfers made before 1978 potentially face two windows, one opening at the end of fifty-six years, and the other at the end of seventy-five years, after the copyright was originally secured. Id. § 203(c)(3), (d)(2).
176. E.g., id. § 203(a)(2).
177. Sometimes the law goes further. Before 1978, a copyright lasted twenty-eight years, with the opportunity for renewal. Although a copyright owner may have assigned the first term and the renewal term to another party, the law in many situations specifies that the author or his family or heirs is nevertheless entitled to the renewal term. Id. § 304(a)(1)(C). Because the last of the original twenty-eight year terms under previous law will come to an end on December 31, 2005, and this provision of the law will therefore cease to apply to any additional works.
178. This example is based loosely on Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which a newspaper published a story based on materials received after promising not to disclose the source's identity. The paper asserted a First-Amendment right to report the facts, but the Court held that the claim of promissory estoppel could nevertheless prevail. This case suggests that private rights may well prevail over the public interest embodied in the First Amendment, but the Court may well respond differently when faced with a conflict between the First Amendment and copyright law. Unlike contract law, the purpose of copyright is to advance the creation and dissemination of information, consistent with the First Amendment. Further, when the newspaper in Cohen promised not to disclose the source, it knew what it was waiving. In my example, the newspaper is not aware of the newsworthiness of the materials until after making the promise, and a court may well give more weight to the importance of the First Amendment for protecting the ability to disseminate information. See also Weil, supra note 24, at 359 (asserting that copyright and the First Amendment "have parallel goals: to foster the creation and circulation of ideas").
179. Digital Millennium Copyright Act, supra note 10.
180. 17 U.S.C. § 1201 (2000).
181. Id. § 1202.
182. See supra note 12.
183. 17 U.S.C. § 1201(a) (2000).
184. Id. § 1201(d).
185. The library itself may be exempt from criminal prosecution should it attempt to exercise the right under Section 1201(d), but the individuals involved may not be exempt. Id. § 1204(b). Regardless, the institution and the individuals may still face civil liabilities. Id. § 1203.
186. STRONG, supra note 90, at 233 (calling the exemption for libraries "odd").
187. Sonny Bono Copyright Term Extension Act, supra note 14, § 101.
188. 17 U.S.C. § 108(h) (2000). I have made other observations about this particular code section elsewhere in this article. See supra notes 98 and 129.
189. Holding out some hope that this subsection may be of some utility, Peter Hirtle has suggested expanding it to encompass the use of unpublished materials, but the code language will continue to place unworkable conditions on the library. See Hirtle, supra note 126, at 266.
190. STRONG, supra note 90, at 217 (noting problems with Section 108).
191. Sheldon W. Halpern, Copyright Law in the Digital Age: Malum In Se and Malum Prohibitum, 4 MARQ. INTELL. PROP. L. REV. 1, 8 (2000) (referring specifically to the AHRA, see note 11 supra).
192. Audio Home Recording Act, supra note 11.
193. 17 U.S.C. § 512 (2000).
194. Id.
195. Experience is starting to demonstrate that the notices sent to service providers often fail to comply with the statute, and few service providers ever need to carry out the detailed processes in the statute. Instead, general notices arrive, and the service provider removes the material in question. All of the well-meaning details of the statute are for naught. See generally Scott Carlson, New Company Besieges Colleges With Notices About Copyright Violations, CHRON. HIGHER ED., Nov. 30, 2001, at A29.
196. 17 U.S.C. § 512(e) (2000). See also STRONG, supra note 90, at 243 ("this is not much of an exemption").
197. Council Directive 2000/31/EC, sec. 4, 2000 O.J. L178/1 ("Liability of intermediary service providers").
198. See generally Rosa Julià-Barceló, On-line Intermediary Liability Issues: Comparing E.U. and U.S. Legal Frameworks, 22 EUR. INTELL. PROP. REV. 105 (2000).
199. In his comments at this conference, Jon Baumgarten emphasized the important reciprocity of protection arising from international developments. The adoption of the OSP provisions in an EU directive is simply a borrowing of legal concepts without any requirement to do so; moreover, the existence of such provisions in the laws of multiple countries is not of great importance for the functioning of the law across borders. This example reveals again the momentum in the law to strive for an international standard - not necessarily to strive for reciprocity of protection - even if that standard is not essential for the practical protection of copyrights and may even be vulnerable to severe criticism.
200. 17 U.S.C. § 1201 (2000).
201. Id. § 1202.
202. Council Directive 2000/31/EC, art. 6 & 7, 2000 O.J. L178/1.
203. In her comments at this conference, Niva Elkin-Koren suggested that we may be on the brink of the death of copyright unless it can be reformed to serve the public interest.