arsclist Eldred case, information needed

["Farrington, Jim" <jfarrington@xxxxxxxxxxxxxxxxx>]

I know that not everyone on this list is an ARSC member, although I suspect
most or perhaps all of you might be interested in this topic. The Board of
the Association for Recorded Sound Collections is considering writing a
letter of support for the "Eldred case" (info about which is below). We want
to enlist the help of scholars and sound recordings specialists in effort to
overturn the Sonny Bono Copyright Term Extension Act now before the Supreme
Court. Much of the below text is based on similar pleas going out to the
memberships of other organizations.

Much to the surprise of many legal scholars, on February 19, 2002, the
Supreme Court agreed to hear Eldred v. Ashcroft, a case which challenges the
constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA). In
1998, Congress through the CTEA, extended the copyright term of protection
an additional twenty years from the life of the author plus 50 to life plus
70. For works for hire, the new term is 95 years. The CTEA has resulted in a
significant decline in works entering the public domain--resources
critically important to the research and education enterprise. Indeed, an
editorial in the Washington Post notes, "the resulting terms are far too
long to cordon off works that should long since have entered the public
domain, to mingle with, be reshaped by and enrich the general culture."
<http://www.washingtonpost.com/wp-dyn/articles/A38827-2002Mar4.html>

We need your assistance in identifying examples of problems that you face
with the extension of copyright term and with the delay of information
resources moving into the public domain.

Background of Case:

Lawrence Lessig, Professor of Law, Stanford University Law School, has been
at the forefront of the CTEA challenge and has written extensively about
copyright issues. In February 2001, a federal appeals court found that
retroactive term extensions by Congress were permissible under the Copyright
Clause and rejected the argument that CTEA is unconstitutional. The Court
found that Congress' grant of an additional twenty years was constitutional
as it was "limited." The Constitution empowers Congress to grant copyright
protection for "limited times" as a means of "promoting" the arts and
sciences. In Eldred, Lessig and others argue that Congress violated this
clause by "creating in practice an unlimited term" for copyrights. 

Libraries/Archivists/DFC's Amicus Brief:

The Association of Research Libraries, along with the American Library
Association, the American Association of Law Libraries, the Digital Future
Coalition, the Medical Library Association, and the Society of American
Archivists filed an amici curiae brief on December 13, 2001, requesting that
the Supreme Court take the case. The brief is available at
<http://www.arl.org/info/frn/copy/ashcroft.html>. Additional information
concerning term extension is available at
<http://www.arl.org/info/frn/copy/extension.html>. A number of other
organizations also filed briefs requesting that the Court accept the case. 

Now that the Supreme Court has agreed to hear the case, the library and
archival communities will be filing an amicus brief. Its purpose will be to
explain the impact of the twenty-year extension on the public domain and the
deleterious impact on access to information that supports scholarship and
teaching. Other associations, organizations, and institutions, including
ARSC, and ranging from the College Art Association to the Society of
American Music, have expressed an interest in joining the brief. In
addition, there will be a number of other briefs filed that challenge the
CTEA from different perspectives (the text of the CAA brief can be found at
http://www.studiolo.org/CIP/AmicusEldredCAA.htm). Further, here is
information that was disseminated from ALA (American Library Association):

>ALAWON: American Library Association Washington Office Newsline
>Volume 11, Number 11
>February 22, 2002
>
>Eldred v. Ashcroft - U.S. Supreme Court decides to hear appeal in
>challenge to constitutionality of Copyright Term Extension Act
>
>The Supreme Court announced on February 19, 2002, that it has granted the
>petition for certiorari filed last fall in a case challenging the
>constitutionality of the Sonny Bono Copyright Term Extension Act.  The
>appeal asked the Court to agree to hear -and to overturn - a decision by
>the federal appeals court for the D. C. Circuit. In February, 2001, in a
>2-1 decision, that court rejected the argument that the Sonny Bono
>Copyright Term Extension Act is unconstitutional, holding that retroactive
>term extensions are within Congress' authority under the Copyright Clause
>and that the 20-year term extensions did not violate the First Amendment.
>The Act extends copyright protection for an additional 20 years (for an
>ordinary work, that term is now "life of the author" plus 70 years).
>
>On December 13, 2001, ALA and the other associations filed an amici curiae
>brief in support of the request that the U.S. Supreme Court exercise its
>discretion to take the case. The brief was submitted by ALA, American
>Association of Law Libraries, Association of Research Libraries, Digital
>Future Coalition, Medical Library Association, and Society of American
>Archivists.  http://www.ala.org/washoff/eldred.html
>
>The case will present a great opportunity for libraries to explain our
>view on the importance of the public domain and the harm that flows from
>keeping works almost perpetually locked up.  Amicus curiae ("friend of the
>court") briefs in support of Mr. Eldred, the plaintiff who is challenging
>the law, will have to be filed by April 5.  The oral argument before the
>Supreme Court will not take place until next fall.  More about the case can
>be found on http://eon.law.harvard.edu/openlaw/eldredvashcroft/

Many of you--certainly any of you who deal with early recordings--are aware
that sound recordings before 1972 come under a plethora of state and
corporate copyright laws. Because the law recognized pre-existing state and
common law copyrights, the 95 years for them BEGAN in 1972 (the date of the
original 
law), not when they were originally released.  Thus all recordings of extant
companies--those who can trace their roots back to the beginnings--are
covered until 2067, no matter how old they are.

We need to demonstrate that the Copyright Term Extension Act as now
constituted, adding 20 years to the copyright term (now the life of the
artist plus 70 years), has been or threatens to be detrimental to your work
as scholars, historians, teachers, writers, and visual or musical resource
workers. For this purpose we need to collect a variety of real-world
examples drawn from the experience and expectations of recordings
researchers and scholars who:

	1) have had trouble tracking down copyright owners of older
materials, which were just to go out of copyright (from the '20s-'40s) until
the passage of the CTEA in 1998;  and/or
	2) have had publishers deny them rights to use such works; and/or
	3) have had publishers tell them that they will not publish
scholarly work, including third-party copyrighted works that were about to
fall into the public domain, unless rights are cleared; and/or
	4) were anticipating that works would fall into the public domain,
and were hoping to make use of such works until the extension of the
copyright term.

If you have personally experienced any problems like these, these stories
need to be told. Time is short. The date for submitting amicus briefs has
been extended to May 20, which means that the information we are requesting
from scholars must be presented quickly. ARSC member and former ARSC
President Tim Brooks is taking the lead for us on this, and is more than
willing to answer questions about this project and to talk to people about
their relevant experiences. His email address is mailto:tbroo@xxxxxxxx
Please note that Tim does not monitor this list, and replies to this message
and the list will not ensure that it gets to him. This information needs to
be compiled in time to be presented to the ARSC Board meeting in Santa
Barbara on May 8, so please have anything you would like to contribute to
him by April 22.

Any help you can provide in tracking down researchers whose actual
experiences can be used to demonstrate the extent to which the CTEA has
chilled the creation of expression will be invaluable. Offering up such
examples in our letter of support will highlight the effect of the term
extension and make it all the more vivid for the Court, demonstrating that
the first amendment "chill" is not just a theoretical possibility.

Jim Farrington
President-Elect, ARSC
Sibley Music Library
Eastman School of Music
27 Gibbs St.
Rochester, NY  14618
jfarrington@xxxxxxxxxxxxxxxxx
585-274-1304 (w)   585-274-1380 (f)

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