Thursday, May. 24, 2001

There is an increasing chorus demanding that the United States' intellectual property system adopt the norms observed in other parts of the world. The argument is that globalization requires standardization, and so where the United States is out of step with other countries, it should get in line.

Why assume, though, that it is the United States' intellectual property law that is wrong in the first place? Perhaps it is other countries that should follow the U.S. lead.

industry in history. And no small part of this success has to be attributable to the role of the intellectual property laws, which make it possible to profit from creativity.

Before the United States becomes a follower in the intellectual property area, it is well worth asking, in each individual circumstance, why? The Constitution tells Congress to ask a crucial question when it enacts copyright law: Does this new law further the progress of knowledge? In other words, does the law further the public good? The Constitution also warns Congress to not trench on liberty.

Simply following the world's example elides these crucial questions —which we should try to answer each time we change intellectual property law. Moreover, our role as follower to the world has not necessarily served us well to date.

Extending Copyright Monopolies to Follow Europe's Lead

Once, the copyright term in the U.S. was 56 years. Later the term was, in effect, nearly doubled, to cover the author's life plus 50 years.

One would have thought this guarantee — providing, on average, 75 years of protection — was enough. But more recently, industry players such as Disney, hungry to extend copyright monopolies, persuaded Congress to tack on still more years to the copyright term. Now, as a result of the Sonny Bono Term Extension Act, the term extends over the author's life plus 70 years.

Why? Because, the industry pointed out, Europe recognized a "life plus 70 years" term. The industry claimed it was unfair for American industry to "suffer" a shorter term than its European competitors. In any case, the argument went, Europe had set a trend.

The upshot, of course, is that for twenty more years, works are kept out of the public domain, so that potential licensees cannot use the works freely. Rather, potential licensees must pay for such use or worse, if the copyright holder denies permission, simply not use the works at all.

This lengthy stranglehold of copyright is undoubtedly good for Disney, and for Mickey Mouse. But for the rest of us, it only inhibits creative works. As a result, it is neither consistent with liberty, nor good for this society with its distinctive values.

Removing Formalities to Follow the Berne Convention

"formalities" to trigger copyright protection for his or her work. Otherwise, the work dropped into the public domain well before the copyright term would have elapsed.

But the 1976 Copyright Act, taking its cue from other jurisdictions, changed all that by enacting the rule that copyright attaches to a work the instant the work is fixed in a tangible medium (such as when pen is put to paper, or cursor moved upon computer screen).

After the United States joined the Berne Convention, the leading international treaty governing copyright, formalities were reduced even further so that an author could no longer lose copyright protection through inadvertence or neglect. For example, an author no longer had to affix notice of this copyright claim.

This attempt to make creative works "dummy-proof" might seem to be an obviously good thing. But it has had some serious, unintended consequences.

Take, for example, the phenomenon of "freeware," — that is, software, such as Linux, to which programmers contribute without payment, and which is intended to be used without payment. Those contributing to Linux software sign an agreement that they will not exploit their copyright in their creative additions, but rather will permit the product to "go free." Moreover, the supporters of Linux have dubbed their movement "copyleft," to connote their intent to do away with copyright protection.

But not so fast. Linux contributors' hopes that their work will instantly go into the public domain may have little effect under existing copyright law — which straitjackets a work with copyright protection upon creation regardless of the author's intention.

Ironically, then, the dimunition of formalities has lessened the power the author has over the disposition of a work. Under a "formalities" regime, Linux contributors could easily — indeed, effortlessly — have given up any copyright claim simply by failing to comply with the requisite formalities.

They should have that right (whether it is through a system of so-called formalities or an on-point provision in the copyright law). While claiming to be revolutionary socialists, Linux contributors are actually asking for a free market property-regime right that has a long and honorable tradition: the right to decide how and when to dispose of creative property, including when to donate it to the public domain.

In short, by following the world's lead, the United States copyright system made it inordinately difficult for authors to dispose of their works without payment. Moreover, not only does the system potentially inhibit "freeware," it also ensures that one cannot safely use a potentially copyrighted work without first locating the rightsholder and asking for his or her permission — which can be an onerous task. Because of the automatic right on fixation feature of copyright law, that search goes forward even when an author really wants to share the work.

The Next Wave: Database Copyright Protection

the copyright area. And again, the consequences may be bad.

[citizen getting 'stocked' by a police officer]

This time, Congress has been told that it needs to "catch up" to the European law protecting databases — that is, collections of stored information (An electronic phone book would be an example, or a company's store of customer data, or NASDAQ, or the AMA's database, or an online news service's stories). Once again, fundamental constitutional questions are being elided by the focus on doing what they are doing "over there."

Under legislative proposals drafted to date, database copyright protection would protect not just the investment needed to generate a database, but rather small segments ("bits") of information within the database itself - but that obviously trenches on First Amendment rights of access to information.

No wonder the National Academy of Science, as well as librarians' associations, have vocally opposed the legislation. Before Congress takes another step to make sure America's norms are global norms, the relevant constitutional questions need full airing.

The success of the United States' copyright industries is due to a complex mix of private property rights, constitutionally-protected liberties, and copyright rules that operate on free market principles. Before adopting the world's norms, we should ask whether those norms protect these rights and liberties, and live up to the principles that have served us so well for so long.

The United States is often called the 800-pound gorilla in international intellectual property negotiations. We should remember our strengths, and use them to ensure that we closely analyze, on a case-by-case basis, whether it makes sense for us to follow global norms. As it is now, we yield too easily to global peer pressure.

Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is

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