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Lewis Hyde
Lewis Hyde
Lewis Hyde is a poet, essayist, translator, and cultural critic. His latest book is Common as Air.
Hold the line: Stop 'copyright rendition'
A US law challenged in the Supreme Court could remove hundreds of thousands of artistic works from the public domain.
Last Modified: 15 Nov 2011 13:23
Many works by non-US artists, such as Alfred Hitchcock, may soon be removed from the public domain [GALLO/GETTY]

GAMBIER, OHIO - In 1948, Twentieth-Century Fox released one of the Cold War's first anti-communist films, Iron Curtain, the soundtrack of which featured music by Russian composer Dimitri Shostakovich. Shostakovich himself probably never saw the film, so it was presumably under orders from the Stalin regime that his name soon appeared on a copyright infringement suit filed in the US. Had the suit succeeded, it would have effectively prevented moviegoers in the US from seeing Iron Curtain. But it did not succeed: Shostakovich's music then lay in our public domain, and once there, its rights holders had no say in how it could be used.

The public domain is a valuable guarantor of both free trade and free expression, which is why there is much at stake in Golan v. Holder, a case recently argued before the Supreme Court (the court's opinion has yet to be announced). The plaintiffs in Golan are challenging a 1994 law that will remove hundreds of thousands of works from the public domain by allowing foreign authors to revive their copyrights. Lawyers call this "copyright restoration", but it might better be called "copyright rendition": Congress has taken work that once lived freely among us and returned it to foreign masters.

The plaintiffs in Golan include orchestra conductors, educators, performers and film archivists who have relied on a stable, clearly-defined public domain for both business and creative practice. Now they can't. Low-budget orchestras that once offered Prokofiev, Stravinsky and Shostakovich can no longer do so; distributors that listed the early films of Federico Fellini, Fritz Lang, and Alfred Hitchcock have had to delete them from their catalogues; bookstores that offered cheap editions of Joseph Conrad, George Orwell, HG Wells and Virginia Woolf no longer stock them.

The public's unfettered use of such works is not the only thing that congress has compromised. Important freedoms are threatened as well. Copyright law, in its earliest days, was designed not just to give authors their due but also to assure public access to what had previously been a decidedly unfree press. When printing first arose in Europe it was almost always controlled by the state. In seventeenth-century England, for example, licencing laws stood in the way of all supposedly offensive books, and the Crown gave publishing monopolies to favoured printers who then dutifully provided a second ring of censorship.

This system began to break down late in the century under pressure from Protestant intellectuals. In 1694, when a new licencing act was being debated in Parliament, John Locke wrote to oppose both the act and the Crown monopolies. These together, he complained, destroyed the free market in books and were thus injurious to learning. Absent any competition, printing in London was "very bad and yet... very dear", controlled by "a lazy, ignorant" press that did little more than assure the Mother Church that she'd never be "disturbed in her opinions".

Locke never questioned the idea that publishers should have copyrights; he worried rather about their longevity. It certainly made no sense for any printer to have a corner on the work of Cicero, say, written a good 1,700 years ago. As for the publishers of modern authors, Locke proposed that the law "limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years".

Distaste for monopolies

The founding generation in the US was the direct heir of this British distaste for print monopolies. As the US constitution was being written, Thomas Jefferson wrote James Madison to say that the Bill of Rights ought to forbid "even... limited monopolies" outright, their benefit being "too doubtful to be opposed to that of their general suppression".

During the 2008 Presidential campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox's copyrights.

Madison disagreed but even so, when revisiting the subject late in life, he advised that "Monopolies... ought to be granted with caution, and guarded with strictness against abuse". Noting that the constitution had in fact allowed them for "the authors of Books and of useful inventions", he nonetheless underscored the constitution's demand that the grant be "limited". "A temporary monopoly... ought to be temporary ... Perpetual monopolies of every sort are forbidden... by the genius of free Governments".

Since its beginnings both here and abroad, then, copyright law has always limited the privileges it settles on authors. By so doing, it simultaneously secures two good but potentially conflicting ends. Most obvious and commendable, authors get ownership of their work and thus entry into the market and freedom from patronage. Less obvious, perhaps, but equally commendable, the limit on ownership gives birth to the public domain, that vast realm of expression to which we all have equal access.

"The ancients," wrote Henry Fielding, "may be considered as a rich Common, where every Person who hath the smallest tenement in Parnassus hath a free right to fatten his Muse". Limited-term copyright smartly enlarges that common so that all Muses may browse closer to us in time. It gives "we the people" fuller access to our inheritance.

That said, cases still arise in which the conflict between private control and public access must be revisited. How it will be settled in the current instance we cannot know, though it should be noted that the US supreme court has regularly taken the side of access. "The primary goal of copyright is not to reward authors," Justice Sandra Day O'Connor once wrote, but rather to promote the progress of knowledge. Justice William Rehnquist made a similar point in words echoing Jefferson and Madison: "We have often recognised the monopoly privileges that Congress has authorised... are limited in nature and must ultimately serve the public good..."

Congress has not typically shared that recognition, invariably extending existing monopolies when petitioned by rights holders. The law being challenged in Golan was largely the fruit of lobbying by US copyright-based industries. Software, film, television, movie and recording companies petitioned congress with the long-term goal of getting other nations (Russia and Thailand are often mentioned) to restore the copyrights of US works that had fallen into the public domain abroad. Having no control over foreign law, however, the somewhat wishful strategy was to restore the copyrights of foreign authors in this country, in hopes that other nations would reciprocate.

Stifling debate

In giving these industries what they wanted, the US congress not only unsettled established business and creative practices, it revived the problem that Locke and our founders worried about centuries ago, for it is ever the case that monopolies can as easily be used to suppress as to encourage both speech and trade.

To give just a few of many recent examples: During the 2008 Presidential campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox's copyrights; the estate of poet Countee Cullen refused to let Poet Laureate Robert Pinsky use Cullen's work in a documentary after learning that the context hinted at Cullen's homosexuality; the Church of Scientology has regularly sought to silence critics with claims that they infringe on the Church's copyrights, as when they sued the Washington Post in 1995 for quoting Church documents.

"Congress managed to do what Stalin never could."

It is true that in such cases, copyright's "fair use doctrine" offers a way for users to defend themselves, and fair use should certainly be more widely claimed. At the same time, few speakers have the time or money to engage in litigation. A recent fair use case brought against the estate of James Joyce took years to resolve and cost almost a quarter of a million dollars. Even when a use is patently fair, most speakers will fall silent when threatened with a lawsuit.

Unless, of course, what they use lies in the public domain. Fair use, the Supreme Court has said, is one of the "traditional First Amendment safeguards"; so it is, but the strongest safeguard of all is the bright line drawn by the limited term. That bright line, moreover, was originally drawn to harmonise with several others.

Samuel Johnson's 1755 Dictionary, the one that the Founders would have known, illustrates its definition of "limited" with the phrase "limited monarchy", and, in so doing, reminds us that limiting monopolies was a key way in which British jurists checked the powers of their king. Transported to the American context, then, the limit of copyright should be understood as one way in which the framers checked the powers of congress and squared copyright with the First Amendment's prohibition on laws "abridging the freedom of speech".

Which brings us back to that 1948 movie. If you teach the Cold War, and hope to show Iron Curtain to your students, good luck. As one unintended consequence of copyright rendition, that film has now disappeared from domestic distribution. Congress managed to do what Stalin never could. The limits the founders built into copyright were meant not only to engender a public domain but, by the same token, to curb congress' power to do favours for its friends and to soften the fact that expressive monopolies are easily abused. "Limited monarch", "limited times", "limited powers": By such phrases do we nominate the constraints that are the preconditions of liberty.

Lewis Hyde is a poet, essayist, translator and cultural critic. His latest book is Common as Air.

The views expressed in the article are the author's own and do not necessarily represent Al Jazeera's editorial policy.

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