Wednesday, February 20, 2002

Supreme Court Will Hear Copyright Case Affecting Online Resources By DAN CARNEVALE Washington The U.S. Supreme Court agreed Tuesday to hear a challenge to a law that extends copyright protection for all published material for an additional 20 years. Some professors say the law hampers their ability to publish electronic resources and teach courses online. Classroom-based courses often use copyrighted material under a "fair use" exemption that the law does not make available to online instructors. The case, Eldred v. Ashcroft, concerns the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, which protects the copyright of material for 70 years after its author's death. Before the law was passed, copyright was protected for 50 years after the author's death or 75 years after the material was first published Eric Eldred, who filed the suit, publishes an online archive of classic literature. He said in an interview that old books, songs, and movies should flow continuously into the public domain. But he said Congress keeps bowing to publishing companies that want to prevent works from ever being available free. "Every time Mickey Mouse threatens to go to the public domain, the lobbyists go to work to get an extension," he said. "If the big publishers and media giants have their way, then basically they'll turn our culture into a pay-per-view event." If Congress had not extended copyright protection, Mickey Mouse cartoons would have begun entering the public domain in 2003. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against Mr. Eldred in February 2001. (The text of the appeals court's ruling is available online.) The Supreme Court has not indicated exactly when it will hear the case. Lawrence Lessig, a Stanford University law professor who is representing Mr. Eldred, said the U.S. Constitution allows Congress to protect copyright for a "limited" period of time. But he said that, with the Copyright Term Extension Act, Congress is aiming for unlimited protection by retroactively extending copyright for materials already published. Congress should be able to change the copyright protections only to affect new materials, Mr. Lessig said. "The copyright power is a quid pro quo," he said. "Congress gives [authors] a monopoly in exchange for something new." He also said that the law violates the First Amendment by continuing to prevent published material from entering the public domain. But Theodore Olsen, the U.S. solicitor general, wrote in a brief that Congress has the sole power to establish copyright protection, and that the act fits within the scope of Congress's power. The brief says that no previous Supreme Court cases have limited Congress's ability to extend copyright. "And historical practice amply supports the sensible view that Congress may extend the term of existing copyrights when it extends the term of copyrights for future works," Mr. Olsen wrote. The case affects the use of all copyrighted works, online or off. But Mr. Lessig said that removing the new copyright restrictions is especially important for anyone who publishes material electronically. The Internet allows anyone to publish information, not just large media companies, Mr. Lessig said. Most people can't afford to hire lawyers to help secure permission from authors or determine what is or isn't in the public domain. "It's now more important than ever that the principle of public domain be preserved," he said. Fritz Dolak, copyright and electronic-resources librarian at Ball State University, said that the Copyright Term Extension Act especially hurts online education. Published materials used in the classroom are often exempt from copyright laws, because of the fair-use doctrine. But Congress has not extended the same exemption to online education. "We still have to find the owners of the copyrights, and that takes a lot of sleuthing," Mr. Dolak said. "I thought that 50 years was too long. This extra 20 years really hurts." Background articles from The Chronicle: One Man's Challenge to Copyright Restrictions on Online Publishing (4/9/2001) Academic Groups Say Copyright Legislation in Congress Would Impede Scholarship (5/29/1998) Easy-to-print version E-mail this article

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