Neglecting the national memory: how copyright term extensions compromise the development of digital archives.

• Author: Mulligan, Deirdre K.
• Position: Copyright Term Extension Act

1. INTRODUCTION

   On October 9, 2002, the United States Supreme Court heard argument in what may be the most important copyright case of the past two decades, Eldred v. Ashcroft. (1) The plaintiff, Eric Eldred, (2) brought his suit to challenge the Copyright Term Extension Act, a 1998 law that extended the term of copyright for both future and subsisting works by twenty years. (3) More than just a challenge to the law, however, Eldred's challenge was to the basic imbalance that exists today in the copyright law--an imbalance weighted heavily in favor of corporate copyright interests and steeply against public interests and public access. In particular, Eldred argued that the CTEA's expansive copyright term inhibits much of the promise that digital technology and the Internet offer to citizens and users of computers worldwide. Like Reno v. ACLU, (4) Eldred presents the Court with a critical opportunity to decide who controls public access to online knowledge and information.

   To support Eldred in his high court challenge, a group of amici joined his brief. Among these amici were fifty-three intellectual property professors, five constitutional law professors, seventeen world renowned economists (including five Nobel prize winners), and three digital archives. (5) The digital archive brief focused primarily on the way in which copyright term extensions have failed to "promote the Progress of Science" (a constitutional requirement of copyright law) in the field of electronic media because they stifle the development of digital archives and other public resources that depend on a naturally-increasing supply of public domain works.

   This article highlights these costs as they negatively affect academic, research, and judicial communities. In particular, we will discuss ways in which judicial and academic communities depend on historical and cultural knowledge to achieve justice in our society and how institutions such as digital archives play a key role in providing such information. We will then go on to discuss how copyright extensions are detrimental for the public good and how they are frustrating the progress that digital archives are striving to achieve. Finally, the article will discuss a key question raised at oral argument in Eldred--the implications of Eldred's CTEA challenge on other copyright laws, such as the 1976 Copyright Act.

2. BACKGROUND--COPYRIGHT LAW AND THE ELDRED CASE

   The Constitution gives Congress the power to "promote the Progress of Science" by granting "exclusive Right[s]" to "Authors" for "limited Times." (6) Despite the Framers' use of the word "limited," Congress has passed laws extending the copyright term on preexisting works eleven times in the past forty years. While several of the most recent extensions have been relatively short (one or two years), in 1976 Congress extended the term nineteen years, and then, in 1998, extended it another twenty years. Thus, works authored in 1923 and scheduled originally to fall into the public domain in 1998 after their full term are still under copyright and will remain so until 2019.

   Eldred challenged the CTEA on two grounds. (7) First, Eldred argued that under the Lopez trilogy, (8) Congress's power to pass copyright laws is both explicitly and implicitly limited by the constraints of the constitutional language in Article I, section 8, clause 8. Thus, just as Congress cannot pass laws under the Commerce Clause regulating guns in schools or acts of violence against women unless they substantially relate to commerce, Congress is similarly prohibited from passing laws that affect copyright unless they "promot[e] the Progress of Science" within "limited Times." More explicitly, Eldred argued that while there may well be some merit to providing longer copyright terms as incentive for future authors of works not yet created, prolonging existing copyrights cannot promote creation retrospectively, nor can it guarantee the public that the copyright will be subject to "limited Times." A constitutional limitation on Congress's power is a substantive limitation. Thus, copyright laws must promote the sciences within limited times, else they exceed Congress's constitutional grant.

   Eldred's second argument was based on the First Amendment, arguing that while nominally a property fight, copyright is just as much a law about speech as it is about incentives. Specifically, many copyrighted works by their nature express ideas in writing, sound, imagery, and the like. Therefore, the First Amendment and its associated protections must intersect with copyright and to some extent govern the limitations of laws prohibiting dissemination of copyrighted works. Under the Court's jurisprudence, content neutral laws such as the CTEA that attempt to limit distribution of speech are analyzed under the First Amendment with "intermediate scrutiny." Intermediate scrutiny requires that Congress justify the regulation based on an important government interest--an interest that has more than a rational basis to it. Eldred again argued that while there may be some marginal justification for offering future copyright authors extra incentive to create works, no important or even rational interest can be served by providing additional years of protection to authors who long ago contributed their work to the canon and quite possibly are no longer alive. Or, put another way, it is simply not rational either to attempt to provide incentives for what has already been created or to attempt to encourage the production of creative works by those who are already dead.

3. WHY IS THE ELDRED CASE IMPORTANT?

   1. Intellectuals and Advocates Depend on Access to Our Cultural History

      Historical and cultural information in the judicial system has always been both a priority and a necessity. The pursuit of troth leads many lawyers down paths of investigation far more similar to those followed by private investigators than those known to philosophers. Historical trends, social science research, and economic analysis are but a few of the many forms of data lawyers and judges use to argue or decide cases. We have seen evidence in many Supreme Court decisions, and in cases from the state and federal appellate courts--for example, those involving the death penalty. (9) While these studies include information that is not subject to copyright protection, they also often include anecdotes and analysis that is. Lower court cases, arbitrations, and mediation similarly depend on such information to balance equities and decide difficult issues.

      Beyond statistical inquiries, access to cultural information also allows lawyers, judges, and researchers to understand the context and import of the subjects before them. Reading a single newspaper clipping reporting the death of President Kennedy could convey the factual description of his death and the surrounding investigation, but it cannot complete the picture of what life was like before and after his death in America in the 1960s. For that picture, an entire volume of cultural literature on those times could be required. Thus, access to only a single copyrighted work, or even to a handful of copyrighted works, is often inadequate; global access to numerous diverse works from a given era is often required to fully understand the issues of the day. (10)

      For example, in some patent litigation work, researching the cultural history of a particular industry or of a particular technology is equally important. The primary method of invalidating a patent issued in the United States is to show that it was "anticipated"--that someone else had invented the idea in the patent before the patentee did. (11) Proving such a historical event is often a hotly contested factual battle. Thus, having access to archival information stored on digital archives such as the Internet Archive's Wayback Machine (12) allows lawyers to travel back in time, not only to find specific factual information about early technological achievements, but also to follow trends and discussions within an industry. Through such a process, one can learn who the key players are, what the main topics of discussion were, and how companies and their employees were affected by the changes taking place at a given time. These insights are often the most critical clues to uncovering lost artifacts of innovation and proving to a judge or jury who really invented what. Yet if such information is tied up in serial copyright extensions, advocates and researchers will not be able to harness it in support of their cases and theories. Thus, Eldred's challenge is about more than just copyright. It is about access to information about our history and culture--information necessary for advocates and intellectuals to succeed in their work.

   2. Copyright Term Extensions Deprive Us of Our Cultural History

      The Supreme Court has historically recognized the role of such information in furthering social progress and social good. As the Court stated in Harper & Row Publishers, Inc. v. Nation Enterprises, "copyright is intended to increase and not to impede the harvest of knowledge." (13) To reap these benefits, the public should be permitted not only to make certain uses of works during the copyright term, but must also be free to make unfettered use of works through public consumption, study, and re-exposition after the copyrights expire. As the Harper & Row Court explained, copyright "is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired." (14) Thus, promoting public access to information is as important to intellectual property policy as are creative incentives.

      Yet the modern Congress has shown little respect for these benefits or their safeguards. From its origin in the Copyright Act of 1790 until Congress's revision of the Act in 1976, copyright law...