A Copyfighter’s Musings

The government and media industry trade organizations justified the
Copyright Term Extension Act in part by arguing that it created the
necessary economic incentives to preserve and restore old copyrighted
works.  This claim was strongly challenged during Eldred.  Hal Roach Studios, the Internet Archive, Project Gutenberg,
and Eldred himself all demonstrated how public domain works would still
be preserved. In fact, through digitial distribution, preservation and
access would be greatly increased if the works were in the public
domain; those values would fair far worse if the works remained in
copyright.  Intel’s brief
argued that new technology would greatly increase access to public
domain content and protecting the public domain
would drive innovation. 

Still, perhaps it was easy for some to shrug these
groups off (wrongly) as fringe and merely making hypothetical
claims.  Intel’s discussion was rather
abstract and perhaps hard for many to grasp.

Only a few short years later, their arguments can no longer be in doubt.  With Yahoo’s announcement today, we have multiple companies competing to digitize and publish public domain works for free online.
There is clearly an economic incentive to make available old works
without term extension.  It’s not just something for non-profits,
which of course are also critical and doing tremendous work in this
regard.  Instant access to our world’s accumulated knowledge is
possible if only we could get rid of unnecessary legal barriers.

Would this have made a difference in Congress or the Court with respect to previous term extensions? 
Almost certainly not.  The government’s argument would still pass
as “rational.”

However, to the extent that winning this battle is about showing that the Internet’s potential to increase access to the public domain and the resulting harm of term extension are real, Google Print and Yahoo’s new service provide significant added support.  Going forward, they add impetus for the orphan works reform, highlight the harm of removing works from the public domain, and help frame the need to balance creating economic incentives for creativity with a vibrant public domain.

Filed by Derek Slater at 2:20 pm under General news
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