DOTHAN, Ala., August 22, 2013 — Another controversy has been put at the doorsteps of the digital publishing revolution. The latest battleground for publishers involves copyright laws and how long an intellectual property should enjoy protection before going into the public domain. At the urging of large entertainment providers such as Disney, Congress is reviewing the current patchwork of laws and whether the rules are still relevant for the internet age.
The key issue is whether to extend the term of protection beyond what it is today. The original copyright law of 1923 gave 28 years of protection to a work, and that could be extended another 28 years for a total of 56 years. That changed, with the Copyright Act of 1976, to the life of the author plus 50 years. After 1998 that was extended another 20 years to the lifetime of an author plus 70 years. Now there is growing demand, and resistance, to extending it yet another 20 years.
On one side of the debate are educators, librarians and digital archivists who argue for open access to materials and shorter terms for copyright protection. Besides locking up new titles for a long time, they are concerned that content already in the public domain might get pulled back.
The U.S. Supreme Court in 2012 upheld a decision by Congress to retroactively remove some works from the public domain, including the Prokofiev music score Peter and the Wolf. That ruling has opened the door to a potential land grab of other titles and is being challenged by an unlikely alliance of conductor Lawrence Golan, the ACLU and the Cato Institute.
To illustrate the point of why they believe books and other media should not get extended copyright protection, researchers at Duke University’s Center for the Study of the Public Domain put together a list of titles published in 1955 that would have gone into the public domain in 2012.
The list included books such as Walter Lord’s A Night to Remember, The Return of the King by J.R.R. Tolkien, Lolita by Vladimir Nabokov and The Magician’s Nephew by C.S. Lewis. Movies on the list included Rebel Without a Cause and Lady And The Tramp, and the popular song Tutti Frutti.
Public Domain Review, an online journal of the Open Knowledge Foundation, each year publishes a blank list to demonstrate that no publications have gone into public domain.
On the other side of the aisle are major corporations, mostly from Hollywood and the music industry, that want content to feed the voracious appetite of a growing digital audience. Disney, for example, is very anxious to keep protection for branded movies and cartoons. An early Disney movie, Steamboat Willy, is due to move into the public domain soon, though the unique Disney characters would still be protected under trademark laws.
Much of the corporate argument for extending and improving copyright protection is based on the issue of illegal file sharing on the internet. Book publishers face the same pirating problem as entertainment companies since e-books can be copied and duplicated an unlimited number of times by pirates. Public domain advocates argue that if copyright is made more equitable to end-users it might end some of the attitude that the big companies are rich and “have it coming.”
The current law provides for up to $150,000 in damages against violators, which in turn has spawned a cottage industry of “copyright trolls” who sue bloggers and others seeking “damages” for minor infractions. The Copyright Enforcement Group (CEG) recently went after a Lindsay Lohan fan site for posting pictures of her.
Other bloggers have been randomly hit with demands by CEG to pay $500 for naively re-posting photos they found with a Google image search. The line between copyright infringement and fair use of photos is fuzzy to say the least.
Both sides in the copyright reform debate are expected to lobby hard as the issue works through Congress. Given the seeming inability of Washington to get anything done these days, along with the relentless change in publishing technology, it may take years before any kind of significant reform is passed. However, there is hope for action since both conservatives and liberals are starting to see the issue in the same light.
Liberals are pushing for shorter copyright terms and more public domain accessibility. Conservatives now recognize that long-term copyrights could create an imbalance in the market and stifle competition. They also fear it could give too much market support to those in Hollywood and the entertainment industry who are strong supporters of the Democratic Party. Regardless, both GOP and Democrats seem likely to lean the same way as bills hit the floor in Congress.
The lawmakers of 1923 could not have foreseen digital publishing, nor would they imagine copyright protection being sought by media conglomerates rather than individuals. The lawmakers of today cannot predict the future of technology either, but they can certainly seek a balance between corporate and individual rights.
If they resolve that issue for copyright law, perhaps they can move on to other areas and do the same.
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