Two years ago, copyright abolitionist Lawrence Lessig tried to undermine copyright protection of creative works. In the case of Eldred v. Ashcroft, the Supreme Court ruled against him. But undaunted, he is now trying again.
In Kahle v. Ashcroft, two commercial archives have recently asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. At stake are works first published after January 1, 1964 and before January 1, 1978. The Complaint asks the Court for a declaratory judgment ruling that copyright restrictions on “orphaned works”, that is, works whose copyright has not expired but which are no longer “available” to potential users, violate the Free Speech Clause of the First Amendment.
Lessig defines “availability” as the ease with which any “user” can locate or identify the creator of any work of art. In Lessig’s logic, the “need” of a “user” to exploit the work of others trumps the right of the work's author to determine when, where or if the work is exploited or what compensation is due for its use. According to Lessig, a user is entitled to expropriate the works of others because the act of expropriation is itself an act of “creativity.” And Lessig argues that where a would-be user of a work cannot lawfully exploit it because he cannot find its author, then the user's right of free speech has been damaged.
Lawrence Lessig is the founder of Creative Commons and is conducting a campaign to institutionalize “alternative” copyright licenses in as many as 60 different countries. This “alternative” license claims to define “the spectrum of possibilities between full copyright, i.e. all rights reserved - and the public domain, i.e. no rights reserved.”
A proponent of the Creative Commons License explains the strategy of the “alternative copyright”:
“Widespread voluntary adoption of this [alternative] license will render measures like the extension of copyright irrelevant... the “Share Alike” license requires derivative users to adopt a similarly open license. The greater the volume of material with this kind of license that is out there, the greater the incentive to make use of it, even at the cost of forgoing commercial copyrights. Since most commercial culture depends ultimately on unpaid appropriation of older material, the effects will be cumulative, even VIRAL [emphasis added].”
Creative Commons does not recognize works of art as the unique expression of individuals. In their logic, all “creators” build upon existing works through derivative or “transformative” uses of the work of others. Creative Commons routinely celebrates music remixers, collage makers, and film and print publishers who seek to profit by republishing with impunity the copyrighted works of others.
Consider the vast number of artistic works that appear without credit lines in print or on the internet and you can easily see how insidious this assault on copyright protection can be:
Declare any work of art whose author cannot be located or identified as an “orphaned” work freely available for use by others.
Allow the user of any “orphaned” work to embed his “new derivative creation” with the Creative Commons viral license. Now standard copyright law could become as vulnerable to the copyright virus as computers to an internet worm.
If users can have free legal access to art simply because certain authors are “difficult” to identify or locate, we will see endless opportunities for abuse. Commercial stockhouses, for example, databases and print and web publishing industries could freely gather “orphaned” images for exploitation. And the Copyright Clearance Center, which currently claims they cannot pay artists for the photocopying of their work (because they say they cannot track usage or identify authorship) would see their continued failure to pay artists legitimized.
This case could affect the life’s work of many artists now in the prime of their careers, and provide case law for the further erosion of copyright protections for all artists.
— Copyright © 2005, Cynthia Turner for the Illustrators' Partnership
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