Copyright Limits
posted by Gerard Magliocca
About five years ago, I wrote an article that said, in part, that the increasing length of copyright terms would spur the development of new doctrinal proposals that would impose limits on the scope of that extended right. One example was Lawrence Lessig’s view, which was rejected by the Court in Eldred, that the Constitution barred Congress from increasing the term of an existing copyright (as opposed to a prospective extension). Other possibilities that I discussed involved borrowing some limits from trademark law, such as imposing a “commercial use” requirement or a robust “abandonment” rule.
In the most recent issue of the Harvard Law Review, Shyamkrishna Balganesh proposes another reform along these lines — the idea that copyright protection should be limited to uses that were reasonably foreseeable at the time that the work was created. Basically (though I’m oversimplifying here), the idea is that an author would not have control over the use or distribution of a work when the medium at issue was unknown at the point of creation. This would mean, for example, that someone who wrote a book decades ago could not prohibit Google from created its global commons because the Internet was not foreseeable in say, 1950.
This is a fine piece (you can scroll down on the blog to last week’s entries to read it) and I agree with the basic proposal. One advantage is that foreseeability would be a relatively easy concept for courts to apply. Nevertheless, this is only a partial solution to the problem of excessive copyright length. Here are at least two potential problems with using foreseeability to restrict copyrights:
1. It’s not clear how much of the “dead-hand” problem created by copyright law relates to new media as opposed to old media. For example, Jonathan Turley wrote an op-ed the other day talking about the greed of Martin Luther King’s children, who own the copyrights to his speeches and aren’t keen on waiving their fee for memorials or other tributes to their father that want to use his words. Likewise, The New Yorker ran a piece years ago about James Joyce’s grandson, who still own those copyrights and is a real pain when it comes to any criticism of Joyce or his work. None of these issues would be addressed by a foreseeability limit, since none of them involve novel uses or technologies.
2. Playing Devil’s Advocate for a moment, one weakness in the proposal is that Balganesh bases his claim on a utilitarian view of copyrights. Now there are plenty of authorities that say moral rights are not part of our copyright tradition. But I’m not sure that people really look at it that way. Here’s a case in point. J.D. Salinger has never allowed a movie of Catcher in the Rye to go forward despite many offers (Jerry Lewis tried to get the rights for years because he thought he was perfect for the role of Holden Caufield). In essence, Salinger doesn’t like movies. But if Balganesh’s proposal is adopted, Salinger would not have the right to bar the use of his story or characters for video games (which were not foreseeable in the early 1950s.) This seems a bit incongruous given Salinger’s belief that his work should not be spoiled. Perhaps there should be an exception for somebody (not that this happens often) who expresses a clear wish against all derivative uses (foreseeable or not).
One thing is clear: Congress will not be cutting back on copyright terms anytime soon. Thus, the attempt to circumscribe copyright protection in other ways will continue.
April 27, 2009 at 8:21 am
Posted in: Intellectual Property
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Responses (1)
Bruce Boyden - April 27, 2009 at 1:09 pm
This is going on my summer reading list. Two very quick points for now — I agree with (2), but I think there’s an even deeper issue than that, which is that while it’s impossible to say now what new technologies will come out tomorrow, it’s possible with certainty to say that there will be new technologies tomorrow (hence the common “all media” clause in copyright licenses, which I guess this proposal would make vestigial). Thus, the present value of the copyright, and thus its monetary incentive, will be correspondingly reduced.
I would add that this isn’t even necessarily about works that are safely in the distant past. Who would have predicted Google Books 10 years ago? Or YouTube 5 years ago?
Also, there’s an interesting comparison to be made here with how this works under patent law. From my brief skim of the article, it looks like there’s a short discussion of the doctrine of equivalents, but the paper’s proposal reminds me of the distinction between enablement and infringement — namely, that the scope of patent claim language will be interpreted for enablement purposes at the time of filing, but for infringement purposes at the time of infringement. I.e., the patent claims essentially grow to keep pace with new technologies, unless (I take it — my knowledge here is fuzzy) there’s something nonobvious about applying that later technology to the invention. The article talks about nonobviousness, but it seems to be in connection with patentability rather than infringement, unless I missed it.
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