A case was filed today putting together two of my favorite things: copyright reform and the Prelinger Archives of ephemeral films hosted by Brewster Kahle’s Internet Archive. Kahle and Prelinger filed this complaint today seeking a declaratory judgment that the 1992 Berne Convention Implementation Act violates the First Amendment and that the BCIA, along with the 1998 Copyright Term Extension Act, violate the Progress Clause because they create an effectively infinite copyright term. The case is being handled by the Stanford Center for Internet and Society; their page on the case is here.
The BCIA automatically renewed the copyrights on all works published between 1964 and 1978. In 1978, the Copyright Act of 1976 came into force, extending the copyright term and eliminating the requirement that the copyright holder affirmatively renew his copyright after a specified period to keep his work from entering the public domain.
The real villain here is the elimination of formalities (registration, deposit, renewal, and notice) in the 1976 Copyright Act and the subsequent elimination of the requirement of renewal wrought by the BCIA. Formalities are efficient. Only the copyright holder knows how much the copyright is worth to him; it would be costly for anyone else to find out, but he already knows. He’s the least cost information provider. Nobody knows how much it’s worth to society for the work to enter the public domain. If the public value of the copyright is greater than the private value of the copyright, the work should — in an efficient system — enter the public domain. So we impose a very small cost on the copyright holder, to test whether the copyright is worth anything to him. If he pays the very small cost, we’ve figured out that the copyright is still worth something to him, and he gets to keep it. If he doesn’t pay the small cost, he’s told us that the copyright isn’t worth anything to him, and the work enters the public domain. The renewal requirement was a very simple, very effective solution to an information problem.
Without a renewal requirement (or with automatic renewals under the BCIA), a large cost is imposed on the public in order to eliminate a small cost to copyright holders. Works that have no commercial value stay locked up for decades. Worse yet, since the elimination of the requirement of registration, there’s no way for a prospective user of such a work to find out who owns the copyright, so that they can go ask permission. The only options are to refrain from transforming the old work into a new one or to go ahead and risk a lawsuit.
This is basically the plaintiffs’ argument — that this change is so unnecessarily restrictive of speech that it violates the First Amendment, and that these long terms don’t really promote progress, as the Constitution requires. The Eldred decision implied that some level of heightened scrutiny was required when the “traditional contours” of copyright law are modified by Congress. The plaintiffs argue that because renewal is part of the traditional American copyright regime, the automatic renewal provision of the BCIA is subject to heightened scrutiny.
I hope that the plaintiffs prevail; Brewster Kahle and Rick Prelinger are doing important work to preserve works that would otherwise be forgotten. However, even in the best case, if the Court finds that the BCIA is a content-neutral regulation of speech subject to intermediate scrutiny, it’s pretty likely that they’ll decide that harmonization with other Berne Convention countries with regard to existing works is an important government interest and that the automatic renewal provision is substantially related to that objective, especially given the deference shown to Congress in Eldred.
But, it would be nice if they won. The BCIA is unnecessary, inefficient, and unwise.