Copyright restricts speech in order to promote speech. As a direct restriction of speech, it cannot be immune from First Amendment scrutiny. As a speech-promoting speech restriction, however, it should be subject to the type of scrutiny applied in the Turner cases. [FN 1] As in the Turner cases, the government is regulating the speech of some (cable providers or people wishing to use or disseminate works that would have fallen into the public domain without the term extension) in order to promote the speech of others (local television stations or, in theory, those copyright owners for whom twenty more years of protection would induce them to exploit their works in ways that others would not). Because both action and inaction would affect the amount and type of speech available to the public, the Courts role in evaluating any extension of copyright is to ensure that Congress took the speech interests on both sides seriously, and that Congress came to the justifiable conclusion that granting additional rights would promote more speech than it would suppress.
II. The Retroactive Term Extension Cannot Survive Turner Scrutiny .
Congress ignored the flimsiness of the evidence supporting extension of the term of subsisting copyrights, and the substantial costs to free speech imposed by that extension. The real-world experiences of teachers, researchers, artists and other creators amply demonstrate that extending the copyright of works created decades ago harms public discourse. There is a First Amendment interest in being able to access, copy and interpret older materials. [FN 2] Restrictions on access to large portions of Americas history and culture undermine the First Amendment, because part of informed citizenship is an accurate understanding of the past.
Scholars and researchers have immense difficulties even finding successors in interest to the copyright owners of many decades past. With the copyright provenance lost, only researchers have the incentive to distribute and preserve these older works.
Even when copyright owners can be identified, they are unlikely to have an incentive to allow public access or to engage in expensive preservation efforts based on a retroactive term extension. Whereas works of continuing commercial interest have already been preserved by copyright owners, works whose only significant value is historical have been left to rot. It is teachers and historians, not copyright owners, who have the incentive to use and preserve such works despite that their economic value to any one individual does not justify the expense. The copyright owners financial incentive does not take into account the public interest in having access to the historical record as part of public discourse, whereas researchers and scholars who use public domain works do.
Artists and other creators who wish to use older works as part of, or as a starting point for, new works of art also face often insurmountable barriers to doing so. As explained above, the older a work is, the more difficult it can be even to identify a copyright owner. Artists also face particular risks in that copyright owners are likely to deny permission to use or quote artistically based on their opinions about art and the original artists reputation, despite that copyright law recognizes that owners interest in reputation should not control commentary on a work, whether the commentary is academic or takes the form of a creative response (such as Marcel Duchamps famous painting of the Mona Lisa with a mustache).
For example, a public art competition is seeking murals for Queens Plaza Station in Long Island City, a subway stop located near the Queens branch of the Museum of Modern Art. Two artists wish to propose a mural using figures taken from famous artworks, some still within copyright, as a result of the term extension. The figures would step out from their frames to become fellow subway travelers, joining the bustling world outside their paintings. These artists are concerned, however, that their proposal may be rejected in favor of less artistically compelling ones, in order to avoid any risk of a difficult clearance process or a threat of suit.
Uses for scholarship, art and teaching are, of course, excellent candidates for the fair use defense found in § 107 of the Copyright Act. [FN 3] The fair use doctrine, however, cannot be used to avoid the constitutional infirmities of the retroactive term extension, due to the uncertainties of the availability and application of the doctrine, which inevitably results in self-censorship by publishers, universities, and other institutions engage. For example, one archive does not allow any copying of newspaper clippings, photographs and other materials by a historian working on the history of chain gangs in 1930s Georgia, insisting on permission from copyright holders who cannot be traced or, in many cases, even identified. Absent retroactive term extension, these materials would have fallen into the public domain shortly, allowing the historian to publish pictures and excerpts from primary sources depicting the reality of chain gangs. In the past, people who did not want the methods of Southern justice exposed attempted to suppress this material; now, copyright law does what they could not.
Archives and publishers that maintain bright-line rules against copying or publication without permission are understandable: It is well-settled law that fair use defenses must be evaluated on a case-by-case basis, and therefore publishers must be prepared to defend against suit each time they rely on fair use instead of explicit permission. [FN 4] And because fair use is a defense, the burden is on the publisher, whose financial exposure outstrips that of most individual authors. It is equally well-settled law that such uncertainties, and the self-censorship to which they lead, are of First Amendment concern because the shadow of the law distorts private speakers speech. The retroactive term extension will increase the period of self-censorship without any of the speech-generating benefits that come from the standard balance between copyright owners rights and fair use.
This distortion has real-world consequences. For example, Who Built America? is a pathbreaking CD-ROM containing many primary sources from the Depression Era for high school and college students. The authors got permission for every work or excerpt they used, and had immense difficulties tracking down the copyright owners, who, in some cases, wanted large payments for works nearing the end of their terms whose only present value was historical. [FN 5] In some cases, they substituted federal government works, which are not subject to copyright, for other works, or left out works entirely. Indeed, the only significant post-1920 material on a related website, the Library of Congresss American Memory (Historical Collections for the National Digital Library) site, is federal government material. As a result, the federal governments role in the period receives greater relative emphasis, even though the authors believed that other sources of information would present a fuller picture of American life that was not entirely determined by government action. The content of the CD-ROM (and the website) is distorted in comparison to the award-winning textbook it complements. It is this kind of subtle alteration, effected by government regulation but invisible to readers and students, that underlies the First Amendments concern for self-censorship.
FN 1 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner II]; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) [hereinafter Turner I].
FN 2 Although it is sometimes said that the idea/expression distinction satisfies the First Amendment, because ideas are never subject to ownership, it is plain that particular expression can be vital to a speaker. In other contexts, the Court has not hesitated to protect a speakers interest in selecting the most appropriate expression, even if other alternatives exist, and even if the speaker is simply copying the expression of others.
FN 3 Nonetheless, it is worth noting that, under copyright law (as opposed to First Amendment law), any speech that is sold or advertiser-supported, regardless of its content, is commercial and thus less favored under the fair use analysis. As a result, most of the entities with the ability to disseminate speech, such as publishers and broadcasters, start off with a strike against them. While First Amendment law limits commerciality to speech that proposes a commercial transaction, the law of fair use has no such limit.
FN 4 See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Time v. Bernard Geis Assoc., 293 F. Supp. 130 (S.D.N.Y. 1968) (fair use is so flexible as virtually to defy definition).
FN 5 For example, the authors were forced to omit Huey Longs 1935 campaign song, Every Man a King.