Copyright in Context

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. U.S. Const., Art. I, Sec. 8, Cl. 8

Ah, if only it were so limited.

     Actually, what started out as a highly reasonable clause from the Founders has resulted in a controversial and increasingly broad area of legal jurisprudence.   Congress has focused on providing maximum control and economic benefit to copyright holders, including: consistently expanding the term limits of copyright protection, substantially abandoning copyright formalities, effectively changing the moment of copyright protection from submission to fixation (thus incorporating protection of unpublished works), and extending protection to foreign works previously in the public domain.   One result has been the emergence of "orphan works," a large category of works that are presumptively protected by copyright although their owners cannot be located with reasonable effort to secure licensing permission for use.   This is arguably preventing creative individuals and organizations that wish to enrich our culture by building upon the creative works of others or otherwise redistribute the works of others.  

     I have tried to include the most important issues, rationale, policy and analysis from a complete spectrum of interested parties. It is meant to serve as a jumping off point to begin researching issues in these areas. There are a few articles and books I listed below that provided a good starting point for understanding the underlying copyright issues behind orphan works. I began with these sources, which pointed me towards cases and other sources that allowed me to expand my research. In addition to finding landmark cases and shepardizing them on LexisNexis or Westlaw, I read law review articles and used the sources they cited to better understand topics. To better understand the underlying Copyright debate on expanding the duration and breadth of control over creative works I recommend the following articles and related subject areas:

1. Eldred v. Ashcroft, 537 U.S. 186 (2003). Provides the leading authority on optimal duration of copyright. The Court also supports compliance with international copyright standards relevant to criticism of the Berne Convention (matching the level of copyright protection in the United States to that in the European Union "'can ensure stronger protection for U.S. works abroad and avoid competitive disadvantages vis-a-vis foreign rightholders.") Id.
   
   
2. Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36 LOY. L.A. L. REV. 123 (2002) Excellent arguments on the constitutionality of extensions of subsisting copyrights.
   
   
3. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP PROBS. 33 (2003).  Fascinating article on the degree to which technology has either facilitated or inhibited control of copyrighted content.
   
   
4. Lawrence Lessig, Free Culture (2004). Available in the Boalt Hall Law Library at call number at KF2979 .L47 2004.  Powerful book that describes the effect that increased control has on free speech, the public domain, and future creativity.