Letters

From the June 2000 issue

(Page 3 of 3)

Congress was anticipating the change it would eventually make in the 1976 Act as early as the mid-1960s because the term of lifetime plus 50 years was the international standard to which the U.S. was expected to conform if it wanted to join the Berne Convention. But the bill was held up for other reasons, so Congress passed a series of one-year extensions for works copyrighted under the 1909 Act so that they would not fall into the public domain pending the official change in the term of copyright. These nine extensions were fully absorbed by the changes made by the 1976 Copyright Act, and none of them acted as separate changes in the term of copyright.

Second, Mr. Walker's reason for why the U.S. adopted the lifetime plus 70 term is that whatever Disney wants, Disney gets. If that were true, why has Disney consistently lost copyright battles to the cable and the satellite industries? The story that lifetime plus 70 was Disney's doing began with a Washington Post article last year, but the hearings and the legislative history of the bill reveal that the U.S. wanted to conform to the new international standard set by first Germany and then the entire European Union.

Mr. Walker makes a good point that people who want to use out-of-print books ought to have some relief under fair use because there are no copies for them to buy legitimately. Surprisingly, whether a book is out-of-print is not among the criteria for fair use listed in the 1976 Copyright Act. Fair use was a common law defense until the 1976 Act. The development of common law depends on cases coming before judges and there was an absence of cases of authors complaining about people using out-of-print books, probably because the authors had abandoned their efforts at commercially exploiting their works.

In 1976, Congress codified the fair use criteria developed under common law, and so, inadvertently, it also codified the lack of attention paid under the common law to people who want to use out-of-print books. But Congress has been known to amend its codification of fair use, so this could be a good area for legislative reform.

Robert Cassler
Former general counsel
Copyright Royalty Tribunal
Alexandria, VA
[e-mail]

Jesse Walker replies:

The Constitution gives Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This is not a recognition of a preexisting right. It is a privilege assigned by the government. Ordinary property arises from scarcity: Two bodies cannot have competing claims on the same house. But both Alexander Thompson and Fox can possess the idea of Buffy the Vampire Slayer and use it for their own ends, without encroaching on the other's ability to do the same.

So I appreciate Mr. Snell's comment about General Motors, but a better comparison, given the kind of copyright violations I wrote about, would be if the company started suing people who sold parts from Oldsmobiles. Or made paintings of Cadillacs.

If Mr. Bell really thinks Buffy fans would rather watch "duplicate episodes with unknown, cheap actors," or that any network would expect to make money by airing them, then he knows nothing about the TV business. The more important question is whether fans should be allowed to shoot such faux-episodes for their own amusement and post them on their Web sites. I think they should.

Readers can decide for themselves whether they accept Mr. Cassler's explanation of when a copyright extension isn't really a copyright extension. But I never claimed that "whatever Disney wants, Disney gets." The fact that Disney might lose a battle with another powerful special interest--the cable and satellite industries--says nothing about its ability to defeat the disorganized opponents of the copyright extension. (Nor was Disney the only company pushing for the extension.)

When the European Union extended its native copyrights, it agreed to extend foreign copyrights as well, but only if we foreigners also extended our terms. This did help galvanize copyright holders who sell their wares in Europe--including Disney--to push for a change in the national law. But that was hardly the only reason anyone endorsed the bill--and it only strengthens the case that the extension was meant to protect corporate privileges, not individual rights.