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Wednesday, 5 September 2007

US copyright/free speech case

Summit Daily reports on a decision of the US 10th Circuit Court of Appeals. The court ordered the District Court to examine s.514 of the Uruguay Round Agreements Act under the First Amendment (freedom of speech), as it changed “the traditional contours of copyright protection in a manner that implicates plaintiff's right to free expression."

According to Lawrence Lessig, the case is notable because it means that copyright law isn’t just challengable on free speech grounds when the fair use exception is changed, or when the idea/expression dichotomy is attacked. Instead it can be revisited whenever the contours of copyright are altered in a way that implicates freedom of expression.

The section under review in this change extends life+70 protection in the US to foreign works.

The IPKat is all for copyright protection being balanced with the needs of free speech (though some interference is necessary by the very nature of copyright protection). However, he can’t see a principled distinction between this balance when it comes to works of foreign authorship, as opposed to US works.

4 comments:

Craig said...

I have only read the report on the Summit Daily website, not the actual case report itself.

However, I disagree with Mr Lessig when he characterises it as a victory for artists, because if the plaintiff succeeds in persuading the District Court (on remand) that Congress over-extended itself with the extension of copyright term with respect to foreign works only, then foreign artists are suddenly disadvantaged when it comes to exploiting their works in the USA.

Given that Australia (where I've come from) took such great pains to align the term of copyright in Australia so closely with the USA, I wonder if the USA would object to Australia treating foreign works (ie. American works) in the same way as mooted by Mr Lessig, should the District Court see fit to agree with his client's position?

Anonymous said...

Quote: "[The IPKAT].. can’t see a principled distinction between this balance when it comes to works of foreign authorship, as opposed to US works."

Well said. In the US, however, the courts seem to abide by the rule "all authors are equal, however some (that is American authors) are more equal than others". That seems to follow from the US constitution - just don't ask me how?

Oh well...

Simon said...

"Some authors are more equal than others"....shouldn't your "Oh well...." be replaced by "Orwell..."?

Anonymous said...

Dear Simon - well spotted! I felt rather clever with my little rhyme for the reader to fill in....

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