The Hindu : Copyright laws

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Wednesday, Apr 23, 2003

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Copyright laws

By T.K. Viswanathan

Since digital technology holds untold opportunities for mankind to build universal libraries with free access to one and all, the existence of material in the public domain is essential.

IN THE third week of January 2003, the Supreme Court of the United States delivered one of the landmark decisions on copyright law which has wide ramifications for the emerging global information society. In the Eric Eldred vs Ashcroft case, the Supreme Court upheld the constitutionality of the Copyright Term Extension Act, 1998, which extended the term of copyright protection by another 20 years from the existing 50 years by a majority of 7:2, with Justices Paul Stevens and Stephen Breyer dissenting. In view of the importance of the issues involved, for academic learning as well as for libraries and Internet archives, the case was espoused by legal academics from Stanford, Berkeley and Harvard. The decision is bound to have a global impact because issues relating to the Internet are influenced to a great extent by U.S. constitutional and legal values.

The copyright clause of the U.S. Constitution provides that Congress shall have the power to promote the progress of science and useful arts by securing to the authors the exclusive right to their writings for limited times. The First Amendment guarantees freedom of speech and expression. Since the Copyright Term Extension Act, 1998, extended the term for a further period of 20 years, the questions which the Court had to address were: whether Congress had the power under the copyright clause to convert a right for a limited duration into a right in perpetuity by stringing together an "unlimited number of limited times" amendments to the Copyright Act so as to evade the limited times prescription, and whether the resultant postponement of the flow of copyrighted works into public domain violated the First Amendment freedom.

It is against this background that the Copyright Term Extension Act, 1998, was challenged by the petitioner, Eric Eldred — founder of a non-profit online enterprise called Eldritch Press — who pursued an ambitious goal of building a digital library containing all available classics in the public domain. But his efforts received a setback when the said Act took effect, frustrating his dream of making available online many of the classical copyrighted works which were due to enter the public domain. Since the petitioner lost the case at the courts below, he preferred an appeal to the Supreme Court.

The majority opinion written by Justice Ginsberg held that guided by text history and precedent, the Court cannot agree that extending the duration of existing copyrights is beyond the copyright clause authority. Quoting from Justice Holmes, the Court observed that to comprehend the scope of Congress' copyright clause power, "a page of history is worth a volume of logic" and history according to the Court revealed an unbroken Congressional practice of granting to authors of works extension of copyrights. It also held that there was no First Amendment freedom to use the copyrighted works of others and the fact that both the copyright clause and the First Amendment were adopted close in time indicated that the framers had the view that copyright's limited monopolies were compatible with free speech principle. In addition, it observed that the Copyright Law contained built-in First Amendment accommodations and that it was not at liberty to have a second look at the Congressional determination and policy judgment.

Justice Breyer, in his dissenting judgment, said that the economic effect of this extension was to make copyright term not limited, but virtually perpetual. Its primary legal effect was to grant extended term not to authors but to the heirs, estates or copyright successors, and expressed concern over the serious public harm the Act would cause. The statute, according to him, did not involve pure economic regulation but regulation of expression and what may count as rational where economic regulation is at issue is not necessarily rational when the focus is on expression. The purpose of the copyright clausewas not to provide a special private benefit but to stimulate artistic creativity for the general public good. Justice Stephens in his dissenting judgment termed the extension as a "gratuitous transfer of wealth" and observed that the fact that Congress had repeatedly acted on a mistaken interpretation of the Constitution did not prevent the Court from invalidating an unconstitutional Act when it was finally challenged.Since digital technology holds untold opportunities for mankind to build universal libraries with free access to one and all, the existence of material in the public domain is essential for authors and writers to draw inspiration from. As rightly pointed out by Justice Breyer, the permissions requirement under the copyright legal regimes can inhibit or prevent the use of old works because it may prove expensive to track down or contract with the owner, or the owner may impose onerous conditions such as criticism-gagging clauses which will stand as a significant obstacle to the realisation of the technological hope of facilitating research and learning through computer accessible databases. Depletion of material available in the public domain will lead to attrition of knowledge and will have an adverse effect on creativity. As online information becomes a commodity and as we move towards pay-per-use society, access to information and knowledge is going to be expensive, ultimately reflecting upon the learning process which is essential for the progress of mankind.

The majority judgment, by upholding the constitutionality of the Copyright Term Extension Act missed a golden opportunity to set the limitations on the power of the legislature to shrink the public domain. The U.S. Supreme Court could have drawn inspiration from the Supreme Court of India, which had to face repeated attempts by Parliament to abridge the fundamental rights. In the Golaknath case, it had to decide the constitutionality of the Constitution (Seventeenth Amendment) Act, 1964, wherein the question was whether the power to amend can be used in such a way so as to take away the fundamental rights guaranteed by the Constitution. The court, while upholding the constitutional validity of the said amendment, seized the opportunity to declare that Parliament in the future would have no power to amend the Constitution so as to abridge or take away the fundamental rights.

Later, in the Keshavanada Bharati case, the Supreme Court construed the word "amendment" in Article 368 to mean that it does not enable Parliament to abrogate or take away the fundamental rights completely, or to change the fundamental features of the Constitution. The Eldred Court, while upholding the constitutional validity of the Copyright Term Extension Act 1998, could have declared that in future no more extensions can be made. Instead of adopting a literal approach to the meaning of "limited times", it could have adopted a more activist interpretation restraining Congress from granting further extensions.

In the alternative, the Court could have laid the foundation for a movement similar to the environment movement which Prof. Boyle calls the invention of the public domain in order to call into being the coalition that might protect it. Any of the aforesaid courses of action would have given fillip to movements such as the Budapest Open Access Initiative and paved the way for the evolution of a new inter-generational equity in the sphere of intellectual property.

(The writer is Member-Secretary, Law Commission of India. The views expressed are his own.)

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