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 https://notabug.com/kahle/ (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.

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)

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