Copyright Extension Issues On The Horizon

BY Ali Sternburg
September 30, 2011

Two current stories are worth noting on the copyright term extension front.  First, several weeks ago, the EU passed a law that extended the copyright term for sound recordings by 20 years.  While this extension was supported by record companies and collection agencies, it was not favored by artists, even though the Council of the European Union said in a statement issued after the vote that “[t]he main reason for such an extension is to allow performers to receive income for their recorded performances over a longer period than has so far been the case.”

The reason for the artist opposition is because the actual owners of the copyrights are not often the artists, due to contractual terms.  Extensions of copyright terms are defensible only financially. These works are already created, so the typical incentivization-to-create argument does not stand, leaving only the further-exploitation argument.

In addition, the U.S. Supreme Court is hearing oral argument next week on October 5, 2011 in Golan v. Holder, a case that concerns fundamental tenets of U.S. copyright law and the First Amendment.  Golan v. Holder raises the questions of whether Congress has the authority to take a work out of the public domain and restore its expired copyright, and whether the 1994 European harmonization law violates the free speech rights of those who had taken advantage of the ability to freely use works whose copyrights had expired.

CCIA signed an amicus brief in support of petitioners and the public domain interests in the Golan case.  The public domain is an incredibly important resource for culture and participation.  If a work is in the public domain, it does not mean that no one will invest time and money into using or transforming it. Precisely the opposite will occur — due to the absence of transaction costs in obtaining permission or potential self-censorship due to not wanting to rely on fair use.  Pushing back a work’s entrance date into the public domain is one thing. The ability to take something out of the public domain is another, and an even more dangerous, unconstitutional precedent and power to set.

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