Copyright and time: a proposal.

AuthorLiu, Joseph P.

TABLE OF CONTENTS INTRODUCTION I. THE PROPOSAL IN CONTEXT A. The Debate over Term Extension B. Initial Responses to Term Extension C. The Proposal--An Overview II. THEORETICAL ARGUMENTS A. Incentives and Access B. Encouraging Re-Use and Critique C. Rewarding Authors D. Political Economy Arguments III. DOCTRINAL ARGUMENTS A. Text, Legislative History, Case Law B. Dealing with Sonny Bono IV. THE PROPOSAL IN DETAIL A. Some Examples 1. Transformative Uses 2. Excerpts 3. Personal Uses 4. Reverse Engineering B. Objections CONCLUSION INTRODUCTION

This Article makes a very specific and concrete proposal: it argues that courts should adjust the scope of copyright protection to account for the passage of time by expressly considering time as a factor in fair use analysis. (1) More specifically, this Article argues that the older a copyrighted work is, the greater the scope of fair use should be--that is, the greater the ability of others to re-use, critique, transform, and adapt the copyrighted work without permission of the copyright owner. Conversely, the newer the work, the narrower the scope of fair use. Or, even more concretely, this Article argues that fair use should be greater for Mickey Mouse (2) than for Harry Potter. (3)

Up to now, most of the debate over the role of time in copyright law has focused on copyright duration and the controversial issue of copyright term extension. (4) Since passage of the first Copyright Act in 1790, Congress has dramatically extended the copyright term from an original maximum term of twenty-eight years to the current term of seventy years after the death of the author. (5) Congress's most recent extension of the term in 1998 (6) touched off a fierce debate over both the propriety and constitutionality of this extension. Those supporting the extension have argued, inter alia, that a longer term encourages creative activity, that it is necessary to provide incentives to preserve copyrighted works in the digital age, and that it is necessary to harmonize our copyright laws with those of other countries. (7) Those opposing the extension have argued that it effectively provides no additional incentive for creative activity, (8) that it harms the public by depriving it of free access to works, and that it may well be unconstitutional. (9)

By focusing so narrowly on the end of the copyright term, however, this debate has neglected the significant issue of how time should affect the scope of copyright protection during the copyright term. That is, whether or not the most recent extension is justified or constitutional, the fact remains that the copyright term is extremely long. Until now, courts and commentators have generally assumed that the scope of protection during this long term is constant or unaffected, at least directly, by the passage of time. Perhaps this assumption made sense when the copyright term was a short twenty-eight years, but does it still hold when the term of protection can span an entire century? Are the policies and justifications underlying copyright law really unaltered by the passage of time? What implications might there be for the appropriate scope of copyright protection? Up to now, these questions have been left largely unaddressed.

In this Article, I will argue that extremely strong justifications exist for considering time expressly in setting the scope of copyright protection, and that fair use provides an ideal vehicle, both doctrinally and theoretically, for such consideration. (10) Indeed, an examination of the theoretical justifications underlying copyright law reveals that the strength and impact of these justifications are quite directly affected by the passage of time. As I will show, over the course of the copyright term, the impact of protection on copyright incentives wanes, as does an author's moral claim to the fruits of his or her labor. At the same time, the societal interest in ensuring widespread access to works and in encouraging re-use and adaptation of copyrighted works increases. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to these changes in copyright interests over the length of the copyright term.

Furthermore, such a result could be achieved quite easily within existing copyright case law. Unlike constitutional challenges to term extension, (11) this result would not require courts to stretch the doctrine or strike down any statutes. Indeed, existing doctrine provides ample support for consideration of time as a factor in fair use analysis. The Copyright Act and its legislative history expressly authorize courts to consider additional factors in fair use analysis, and courts have used this authorization to consider a wide range of additional factors not expressly mentioned in the statute. (12) Given the strong theoretical arguments for considering time, courts should feel quite comfortable incorporating this inquiry into fair use analysis. Consideration of time would thus be a modest doctrinal change that could have significant benefits.

Finally, the proposal advanced in this Article would provide courts with a legitimate way to inject much-needed public-regarding values into the scope of copyright protection. One of the concerns underlying the debate over copyright term extension is the extent to which this extension, like all prior extensions, resulted from a structural imbalance in lobbying power. (13) While the benefits of term extension accrue to a few, highly-focused and well-organized interests, the costs of extension, though significant in the aggregate, are more widely distributed among the population at large. Term extensions are thus difficult to oppose, as public choice theory predicts. Indeed, this imbalance has been reflected not only in the struggle over term extension, but also in other Congressional expansions of copyright protection. For those concerned about this structural imbalance, this Article provides a mechanism for courts to legitimately incorporate public-regarding values into the scope of copyright protection. Even for those who are not concerned, however, the general policy justifications underlying copyright law provide strong support for this proposal.

The rest of this Article explains the proposal in more detail and builds the case in support of it. Part I provides the context for the proposal, describing the debate over term extension and the arguments on both sides of the issue. It then briefly sketches out the proposal and explains how it relates to this wider debate. Part II then examines the theoretical argument in support of the proposal, concluding that it finds extremely strong support under several different theories underlying copyright law. I start with the policy arguments, rather than the doctrine, because these arguments provide the impetus for the proposal. Part III then builds the doctrinal case for the proposal, examining the doctrine, case law, and legislative history for support. The conclusion I reach is that the copyright act clearly authorizes courts to consider time in their fair use analysis, and that, given the strong policy reasons supporting such a consideration, they should do so. Part IV then returns to the proposal and fleshes it out by applying it to a number of examples and showing how the proposal would have many concrete benefits. Part IV concludes by addressing a number of anticipated objections.

  1. THE PROPOSAL IN CONTEXT

    1. The Debate over Term Extension

      For the next sixteen years, not a single published, copyrighted work in the United States will pass into the public domain. That is, from now until December 31, 2018, (14) not one published, copyrighted work will have its term of copyright protection expire. (15) This is because Congress passed the Sonny Bono Copyright Term Extension Act (16) in 1998, extending the term of copyright protection by an additional twenty years. For works authored by individuals, the term now extends until seventy years after the death of the author; (17) for works "authored" by corporate entities, (18) the term is now ninety-five years from the date of publication or 120 years after creation, whichever expires first. (19) Not only does this apply to future works, but Congress also made this extension retroactive, applying it to all existing works still under copyright protection at the time the extension went into effect. (20) As a result of this retroactive extension, no published works will pass into the public domain for twenty years after the Act went into effect.

      The impact of this extension on copyright markets is significant. Until passage of the extension, copyrighted works had been passing into the public domain at a steady pace. In 1998, for example, T.S. Eliot's The Waste Land, (21) James Joyce's Ulysses, (22) and the movie Blood and Sand (23) with Rudolph Valentino all passed into the public domain. (24) In 1996 and 1997, F. Scott Fitzgerald's This Side of Paradise, (25) D.H. Lawrence's Women in Love, (26) Edith Wharton's The Age of Innocence, (27) and the song Over There by George M. Cohan (28) all passed into the public domain. (29) What this meant was that these works could now be freely copied, distributed, and built upon by others. So if you wanted to print and sell copies of The Waste Land, you could freely do so without seeking a license from, or paying a royalty to, the copyright owner. Similarly, if you wanted to write and sell your own sequel of This Side of Paradise, or make a movie out of The Age of Innocence, you could do so. All of these uses were now freely permitted once the term of copyright protection ended.

      The fact that these works passed into the public domain was no accident. Rather, it was an essential part of the design of copyright law. (30) The basic idea behind copyright law is that an author gets a certain number of years during which he or she can prevent unauthorized copying and distribution of the...

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