Copyright isn’t a Threat, it’s a Protection

There is a big push via email and the web to rally support for a court case called Kahle v. Ashcroft, # (in this case, “Ashcroft” is the US, it has nothing to do with him personally). This case is a follow-up (of sorts, the legal points are different) to the unsuccessful Eldred v. Ashcroft, which also sought to overturn portions of current copyright law.

Kahle supporters are portraying the current copyright laws as oppressive and are using rallying cries like “Free the orphans!” in order to swing public opinion their way. “Orphans” in this rallying cry is referring to works of questionable copyright status and/or those who are still under copyright protection but whose rights owners are impossible to trace.

There are several errors in their arguments as presented to the public (I’m not going to refer to the actual legal arguments as I am not a lawyer). In fact, there are so many I couldn’t list them all without writing a book. However, I do think some of them need to be addressed.

First off, the current copyright laws, while imperfect, aren’t causing most of the problems that these supporters are portraying. The argument that rights holders are “impossible to trace” doesn’t hold water, for example. In most cases, the copyright holder can be traced. The Copyright Office itself helps in these searches.

And there are complete lies in areas on (the supporters’ site). Claims that will certainly frighten people but, like WMD, just don’t exist. For example:

Under our current unconditional system, all works are automatically locked up — regardless of the will of the author — for the full term of copyright, which has been lengthened substantially.

“Locked up”?! No, the rights of the creator are protected and s/he gets to release their rights however s/he sees fit. If a creator wants to have his/her work freely available to the public for any use, s/he can do that.


5. You’re talking about the removal of copyright “formalities” like registration and renewal. That seems like such a minor issue. Why should I care?

The move from conditional to unconditional copyright has had a number of unintended consequences. It has failed to benefit authors. It has imposed burdens on free speech and the creation of culture — burdens which have grown as digital technologies like the Internet lower the non-copyright barriers to creating and disseminating culture. It has moved copyright much closer to a collision with the Constitution.

This is patently (all puns intended) untrue--it encourages the production of art in all forms precisely because automatic copyright protects the artist from being ripped off. It *has* significantly benefited "authors" (meaning all creators/artists) by providing them a means of making a living off of their creations. To remove this protection will kill industries like independent photography and illustration. And it in no way whatsoever impinges free speech—just free reproduction of someone else’s intellectual property.

Also, in order for a copyright holder to successfully protect her/himself from infringement s/he must register the copyright within 90 days of publication (should register as soon as possible any unpublished works). Thus, a record is born. If the work is not registered it becomes extremely difficult to sue for infringement, the potential winnings are severely limited, and most lawyers won’t touch cases without registration.


11. Why is it important to file this lawsuit now?

The move to unconditional copyright came just at a time when digital technologies like the Internet could enable the archiving, preservation and reuse of content at a level never imagined before.

Archiving and preservation already occur under the protections. However, reuse of content needs to be regulated and protected. Imagine if Joe Smith writes a short story and publishes it. It’s priced at $5 a copy. It has small sales until many years later when it is “discovered” by some cultural guru and suddenly it becomes of great interest. Without the protections provided by the current copyright laws, AOL (for example) could reproduce his story on the internet. Suddenly, no one needs to buy his short story—they can read it for free on AOL (and the sales Mr. Smith did have dry up). AOL, however, gets money from its subscribers and people subscribe because of the content AOL provides—like Joe Smith’s fantastically popular short story. So AOL gets more subscribers and makes even more money. Then, Hollywood gets wind of this fabulous short story and makes a film from it. Again, without the copyright laws now in place, they don’t pay Mr. Smith anything for the story, but the film goes on to make $100Million.

In the case of archives and/or libraries wanting to reproduce materials, in most cases that is already acceptable under the current laws (covered by fair use or other exemptions). However, as the Register of Copyrights, Marybeth Peters herself, recently noted in testimony before congress:

The exemption, which became 17 U.S.C. 108(h), essentially permits a nonprofit library, educational institution or archive to reproduce or distribute copies of a work, including in digital format, and to display or perform a work during the last twenty years of the copyright term as long as that work is not commercially available. Unfortunately, the terms of section 108(i) make this exception inapplicable to motion pictures, musical works and pictorial, graphic and sculptural works. I am hopeful that this error will be remedied and would be pleased to work with the Subcommittee to correct it.

(full text of her testimony available online here)

In other words, the Copyright Office itself is already trying to fix the “problem” that this Kahle v. Ashcroft is trying to use to overturn the entire law. But they don’t want to throw out the law that is working, but by closing the loophole.

If the law is overturned, creators will lose many protections. Creators are already being attacked by companies large and small (especially large) via oppressive “Work For Hire” and “shared authorship” clauses in freelance contracts. These contracts are an attempt by companies that understand the value of these works to exploit the works created but not share in the wealth generated with the creators themselves. And destruction of current copyright protections will only decrease the ability of creative professionals to financially survive while adding greatly to these exploitative companies’ bottom lines.

©2004 Leslie Burns-Dell’Acqua

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Dabitch's picture

Slashdot is on it - with some gem comments, like: If you can't legally buy it, you should be able to freely trade it around.That's right! Where is my free weed? - there are some serious comments there too. Found via this post The Public Domain Enhancement Act

AnonymousCoward's picture

Hi Leslie. I'm Joe Gratz, the one responsible for the "big push" you mentioned. I'm speaking here only for myself, not for the legal team working on Kahle, for the Stanford CIS, or for anyone else. Also, you should not take any of the statements I make about the law as legal advice.

I think we're basically in agreement. Copyright is a good thing. It protects artists and allows them to make a living. It's the "unconditional" part that's the problem. If you still had to register a copyright to keep the work from falling into the public domain, and renew that registration after 28 years, the law at issue in Kahle never would have been passed. But that's not the case; works have copyright protection from the moment they are created, and nobody else can legally use them in non-fair-use ways without permission from the copyright holder, even if the copyright holder never registers anything.

You're right when you say that creators must register within 90 days of publication to get certain benefits, like statutory damages and attorneys' fees. But failure to register doesn't mean the rights go away, or that anyone can use the work. If I create and publish something today, decide I don't care who uses it, and don't register or do anything else, it will still be protected until 70 years after I die. Even if I do nothing, and someone starts using my work 60 years after my death, my heirs could then register the copyright and sue the user.

Wouldn't it be better if I had to do something to make it known that I wanted to preserve my rights in the work? And then 28 years later, if I didn't care anymore, I could just not renew and my work would become available for anyone to use?

You're also right about the exemption for archival copying during the last 20 years of the copyright term. That's a great thing, and I'm glad the Register is working to expand that exemption. But that's a very limited exemption, available only in the last 20 years of the term -- the 20 years added by the 1998 CTEA.

Nobody wants to get rid of copyright altogether, but I think there are changes we can make to the law that would benefit creators by moving source material that the copyright holder doesn't care about into the public domain for everyone to use. If the copyright holder cares, they'll register the work, place a copyright notice on the work (as I notice you've done), and renew when the time comes.

James Trickery's picture

The way it stands today it's a good thing™ that anything created is automatically copyrighted. If you want your work to be used, with attribution, or used anywhichway, licence it under a a creative commons licence. Otherwise you retain all rights to your work like you say. I can't see this as a bad thing anywhere. It's after all, my work.

kamari's picture

The move from conditional to unconditional copyright has had a number of unintended consequences. It has failed to benefit authors. It has imposed burdens on free speech and the creation of culture.

It has failed to what? I think I need an example to understand this as I can't comprehend how my rights to my work fails to benefit me.

LeslieBAP's picture

Nope, we're not in agreement. You wrote, "Wouldn't it be better if I had to do something to make it known that I wanted to preserve my rights in the work? And then 28 years later, if I didn't care anymore, I could just not renew and my work would become available for anyone to use?"

I completely disagree. It should not be incumbent upon the creator to do anything to protect his/her creation. Instead, it should be the user who has to make the efforts to use materials. Creations have value and sometimes artists are dumb about that. Let say an artist had to do as you proposed and, after 28 years decided the work wasn't worth anything and gave up the protections. Then, the work, for whatever reason, became popular. That work then is WORTH MONEY, but the artist gets nothing. Nope, the law protects the artist and should stay as it is.

Oh, and about your heirs registering copyright late? No, that's not the way it works. One has to register within a certain timeframe, as I mentioned. The heirs could still sue, even without registration, it is just much much harder to win.

AnonymousCoward's picture

OK. I think we disagree on whether it's better to have the creator have to do something to protect her rights or whether it's better for them to vest immediately. I agree that the scenario you propose would be pretty unfair, but I think the overall benefits of having to register and renew outweigh the overall costs. I understand that you disagree.

On the other questions, again, I'm not giving any legal advice here, but here are some quotations from the Copyright Act.

17 U.S.C. 411(a) says, in part:

Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.

(Section 106A is the Visual Artists' Rights Act, which gives certain extra rights to people who produce small qunantities of visual art. You can't register your 106A rights, that's why it's excluded.) (That's from

On the time limitation to register, here's a quote from 17 U.S.C. 408(a) (at

At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection.

Sport's picture

This is all a bit beyond me and may not even apply to me ever (over here in the UK) but I'd like to thank both Leslie for bringing it up and jgratz for sharing his point of view (and links. Thanks).

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