Friday, October 27, 2006

Congressional Power and Limitations Inherent in the Copyright Clause

Moderated by Jane Ginsburg.

Chris Sprigman, Virginia: One point to make – the limitations the Constitution places on Congress are systematically underenforced, and we should do something about it. What does “limited times” mean? Not “unchanging,” according to the Court, but “not forever.” Make policy arguments about what’s too long to Congress. With a term of nearly a hundred years, what’s in the public domain, then? A few timeless works aside, it’s mostly useless husks, whose cultural value/relevance is used up. The text doesn’t readily admit of judicial enforcement, but the result of going to Congress is unlikely to vindicate a robust public domain because of rent-seeking by wealthy, motivated, organized IP producers.

What is to be done? We can’t directly enforce “limited times” in the courts. We can work on protecting the integrity of the public domain. Releasing unpublished works when their terms expire is an important part of that. Dastar’s analysis of the interaction between copyright and other rights is another key example of protecting the public domain. We also need to interpret anticircumvention rules so that they don’t cover circumvention when a TPM guards access to a work in the public domain.

As a lawyer in Golan, his perspective is somewhat different than Marybeth Peters’s. Golan is a challenge to URAA restoration of copyright in works in the public domain. How can we use Golan to vindicate indirectly the otherwise underenforced limited times provision? You can say that the public domain is a one-way street, or a roach motel: things go in but they don’t go out. The government has examples of past restorations, but the plaintiffs find them inapt since they weren’t wholescale. When you have a fight over history, you should pick the view of history that vindicates the public domain.

Kahle: Didn’t challenge the 1909 Act, but happy to add it in if Peters explains how. You used to have to act to get a copyright, and act again to keep it. This again allows courts to lean in favor of the public domain when evaluating what the “traditional contours” of copyright are.

Tony Reese, Texas (visiting NYU): Eldred is consistent with a tradition of deference to Congress, but goes beyond the previous rulings on subject matter and standards. Eldred indicates a broad approach to congressional power in evaluating how Congress acts when protecting copyrightable subject matter – what kinds of protections are available, not just what is eligible for protection.

What might happen with respect to the unpublished public domain, a field that’s new in US copyright law? Potential publishers of unpublished PD works may claim that the threat of competition deters them from publishing such works, and ask for protection from Congress for a period of exclusivity. This call could appeal to law in the EU, which for some time has required a 25-year exclusive economic right for the first person to publish a previously unpublished work in the public domain. Such calls for harmonization are not unknown to the US.

Could Congress grant a 25-year exclusive right of first publication? Reese is only considering copyright powers, not First Amendment problems or commerce clause powers. Objections: (1) Limited times; (2) Congress can’t remove material from the public domain; (3) Congress can’t grant rights to non-authors.

There’s no textual reason to think that the “limited time” has to be one continuous period – it could be a limited time interrupted by a period of nonprotection. Historically the protection for unpublished works was perpetual until publication. Between 1790 and 1909 Congress offered protection to unpublished manuscripts as long as the manuscript remained unpublished, with no time limit and no formalities.

Removing material from the public domain: There’s nothing textually express in the copyright clause itself barring removal from the public domain. Does it promote the progress of science and useful arts? It’s plausible to think that publication promotes progress, and Congress could plausibly believe that granting new protection promotes publication. Past restorations were about giving works the full term they would have enjoyed if they hadn’t fallen into the public domain. Protection for unpublished works in the PD would be different, extending past the maximum term of copyright. But all past restorations have involved published works, works that were not only legally in the public domain but that were factually accessible to the public. A publication right would typically cover works with only one or two copies held privately; as a practical matter, the public wouldn’t be able to engage in much copying, so removing them from the public domain may have a different impact. There is room for debate here.

Authors: Congress has a long history of granting copyright directly to people who aren’t authors. Until 1978, copyright was acquired by publication with notice, and the party who published could be the “proprietor” rather than the author; the grant of copyright was directly to the proprietor. Similarly, renewal rights could go to non-authors who could trace a chain of title.

As a predictive matter, a court might well find a publication right to be within Congress’s power, even though there are lots of reasons it would be a bad idea.

Lessons: Even a novel right like this might fit in a broad reading of Eldred. We might learn from Eldred’s use of history. Congress had in the past done the same thing, term extension, a number of times. But we’re likely to get more ambiguous cases, where Congress has not done the exact same thing before. How far do we push the historical analogies? Finally, it’s worth asking the normative question of whether it would be a good idea to grant new rights, congressional power notwithstanding. If Congress would restore full common-law protection if it couldn’t grant a publication right, the publication right might be the lesser evil. But it’s probably not worth it.

Graeme Austin, Arizona: Federal courts don’t want to scrutinize copyright law for constitutionality, despite the threat suggested by Feist. Some federal courts have connected constitutionality with international copyright relations – legislation facilitating access to foreign markets can be a constitutionally relevant part of copyright’s quid pro quo. This only goes to demonstrate the incoherence of the quid pro quo argument as a constitutional constraint. The quid pro quo idea provides a reason for Congress to enact copyright laws, but it shouldn’t be a limit on congressional action.

Foreign authors’ access to US markets – is it relevant to the copyright bargain? If ex post benefits to foreign authors count, copyright is becoming fully internationalized. This is most fully realized in the court of appeals opinion in Luck’s Music: the knowledge that Congress may pass laws like the URAA in the future does affect creators’ expected benefits – if Congress can remedy loss of protection for works that have fallen accidentally in the public domain, the incentives to create increase. Foreign authors, in this view, are party to the US copyright bargain. The court acknowledged that this was a meager incentive, but found it sufficient. This makes the quid pro quo theory look pretty bizarre: the quid pro quo includes not only extant incentives but the prospect of remedial legislation adding rights. This causal chain is pretty attenuated and unlikely to affect authors’ calculations.

In the past, improving protections for US origin works might have improved foreign markets, and vice versa, when reciprocity was needed for protection. If a US audience is exposed to foreign works motivated by US rights, that contributes to the progress of knowledge within the US. But more generally, analyzing the copyright bargain in terms of a single society makes little sense; all nations with viable markets need to be taken into account.

Use of the quid pro quo concept has thus, perhaps ironically, led to the acknowledgement that American law needs to be more outward-looking than it has been in the past. This also implies that the foreign commerce clause provides further support to congressional power in copyright – but maybe that’s just adding foreign insult to domestic injury. If it’s bad policy here, it’s bad policy abroad. There are no appreciable limits on what might help US negotiators encourage others to enact similar laws – so this basis for establishing the rationality of US copyright laws has the potential to render all others moot. So we need some standards to prevent diplomatic agendas from governing domestic law.

Some limits may be divined from Eldred, those “traditional contours.” Nonetheless, the Constitution may not require the US’s original isolationism with respect to foreign authors, even though the Framers didn’t care about those authors. Like the political branches, the judiciary now recognizes the need for a workable international system. Engaging with the international system doesn’t violate the traditional contours of copyright even if it rewrites the formalities of copyright. We need a jurisprudence of humility that comes from being part of the world.

Michael Landau to Sprigman: Any concern about the expansion of subject matter? Whole fields of works weren’t traditionally within copyright and became covered by it, and why isn’t that a constitutional concern? Also, Dastar wasn’t about public domain works, but whether §43(a) covered creative origins at all.

Sprigman: Sure, but Dastar was motivated by concern for the public domain, even though its implications are much broader. As for subject matter, it’s a product of the growth of new technologies – photography, computers, etc. It seems like a natural accretion, and he doesn’t object to accretion, only to blindness to the fact that there is change over time. For example, Eldred’s claim that copyright is compatible with the First Amendment because the Framers enacted both is laugable, given how tiny copyright was then and how tiny the First Amendment was then. They fit in the 18th century – when Justices enforced the Alien & Sedition Acts – but don’t fit now.

Ginsburg: What history tells you about what’s permissible may be probative about permissibility, but not about what’s mandated. Kahle tries to elide the distinction by claiming that, because formalities existed in the past, they’re mandatory.

Tim Wu: What are the potential changes in scope Congress might try? What are the theoretical limits?

Sprigman: Feist suggests some limits in “writings” of “authors,” distinguished from facts. And different media may require different rules – it’s hard to talk about the “idea” of a symphony without playing some of the music.

Reese: Fashion is one obvious possibility for changing scope. Protection for smells is another. Do you need expression to be given “visible” form, as said in Burrow-Giles? Expansion of protection to sound recordings switches that to “tangible” form.

Austin: Region coding might be an example of a question of copyright’s permissible scope – does copyright law have anything to say about where people enjoy a work?

Ginsburg: We might distinguish rights from subjects covered – the display right is new in 1978; is that a transgression of traditional contours, even though it only covers traditionally protected works? What about architecture, which is an expansion of subject matter?

Peters: The same question of rights comes with the DMCA anticircumvention rules: is an access right an expansion of copyright? The anticircumvention problems turn out to be more about use of copyrighted works as tiny components of larger products, and so companies add software locks to things like cellphones. What is the work that’s being protected? A tiny piece of code that drives the device. Is this really what copyright is for?

Ginsburg: The problem is that the copyrightable work is being used as a pretext – a garage is not “a work protected under this title,” and neither is a cellphone service. When the work is a smokescreen for something else, a court can sensibly interpret 1201 as not extending to protecting that something else.

Reese: Maybe an “exclusive rights” approach is better – is access part of exclusive rights? That’s a tough argument under Eldred, though.

Emory Simon, software lawyer: He is much more interested in rights than subject matter. When a reproduction of a physical copy is much less meaningful, and the question is more about use, the importance of the DMCA is that it starts to create a use right. Would a use right, a right to prevent others from enjoying or deriving economic value from a work without permission, be constitutional?

Sprigman: If it would prevent reviews, there’d be a constitutional problem.

Simon: There’s a lot of software in cellphones, much copyrightable (music, programs, etc.) – the copyright owner wants to say you can only use the software as long as you keep paying.

Peters: Can’t see anything unconstitutional in it, but it’s a question of public policy. Performing and reproducing are all “use,” but should we go beyond that to add an amorphous right.

Reese: This would be a right that would cover, e.g., private performances. We don’t have much guidance on whether that would pose a constitutional problem, because the Court hasn’t addressed rights problems at all.

Austin: The Australian high court saw a clear distinction between economic enjoyment involving reproduction and enjoyment involving access, though it perhaps didn’t give sufficient weight to the fact that consumers don’t care any more whether they own a copy. Can the commerce clause step in?

Ginsburg: The text says “exclusive rights” but doesn’t tell us what they are. So maybe access/use can be added if needed to make the right meaningful. May involve a distinction between constitutional rules and values – the court might not stop you from adding such a right, but it might be harmful to copyright’s values.

Question: The public domain isn’t in the constitution – isn’t this a mountain out of a molehill?

Sprigman: Limited times is in the constitution, and that creates a public domain. Congress in 1790 terminated common-law state rights that conflicted with federal copyright in published works.

My question: Are compulsory licenses constitutional? They don’t seem like “exclusive rights.”

Sprigman: A compulsory right is still an exclusive right, it’s just a liability right and not a property right.

Ginsburg: But historically, “exclusive” meant property rights.

Sprigman: We are all opportunistic originalists. If we let copyright be different from 1790 copyright in some ways, why not others?

Austin: The question proves too much – if we see copyright as a constitutional matter, then all sorts of arguments against the present regime come up, and may end up amplifying author’s rights in unfortunate ways.

Ginsburg: We could say the clause authorizes only exclusive rights, or we could say Congress can do everything up to and including exclusive rights; the clause gives Congress leeway in selecting the amplitude of rights. That said, what if we only had compulsory licenses – would that be consistent with copyright values? Is there an authorial control value in the Constitution?

Q: Given that the Constitution only authorizes but does not require a copyright law, can we say that it creates a public domain? Congress didn’t have to preempt state law.

Sprigman: But when Congress acts, it has to act in a way that generates a public domain – protection for limited times. State laws were patchy and there’s debate over what they covered, but there is a federal public domain.

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