I am back in the USA this weekend, after an exciting week in Bayreuth, Germany. In addition to the adventures of European travel, and enjoying a few too many sausages and beers, I had a great copyright expedition. Some of you might know that I have strong ties to Munich, the Max Planck Institute, and the LL.M. degree program offered by the Munich Intellectual Property Law Center (www.miplc.de). One of my Munich colleagues, Prof. Ansgar Ohly, is now on the faculty at the University of Bayreuth. Coincidentally, he also supervised the doctoral studies of one of my former students from Indiana University, Achim Foerster. So with those multiple contacts at one university came the opportunity to be a guest for the week.
I had the privilege of teaching a short course and giving a public presentation. My course was a quick overview of US copyright law, but in the context of international developments (such as the Berne Convention). My presentation had this busy title: "Exceptions, Limitations, Open Access: The Creation of a Copyright Public Domain." My main point: At a time of expanding copyright protection--as a result of automatic protection of nearly all works for a extensive period of years--the law is responding with gestures that attempt to create a "public domain" or at least a multi-facted zone of public protection. I focused on three developments from just the last few months:
(1) The Section 108 Study Group Report. Through the possible creation and reform of exceptions, Congress has the possibililty of securing space for public uses of copyrighted works. I was not too kind about the report, but my point was more general about the importance of exceptions.
(2) Orphan Works bills just introduced into Congress. Through the crafting of limitations on remedies that may be recovered in some litigation, Congress can again give some protection for certain favored uses. I had nothing good to say about these particular bills. But they are another example of Congress giving relief from certain penalties for infringement.
(3) The NIH Public Access Policy. While the open access movement is a phenomenon that is less law and mostly copyright management, this particular policy is law. Peer-reviewed publications funded by NIH are now required to be submitted to PubMed Central for public access. This is a very good development. But again my point: Congress is creating a "public domain" be carving out space for public uses.
The contours of the "public domain" are complex. Congress continues to experiment. Some proposals are seriously problematic (e.g., the orphan works bill), but these three developments in just the last few months demonstrate that the regime of copyright has become too aggressive in its scope and reach. In reaction, Congress is struggling with innovative was to give some benefit back to the public. Sadly, these are only tiny adjustments, and worse, only one (the NIH policy) probably has any chance of really producing the intended benefits.
My audience in Germany found these issues intriguing. They were familiar with many of the issues in general, and even the details of some. They especially wanted to know why the US copyright exceptions are so lengthy and complex. One colleague mentioned that the text of just the US exceptions is approximately the length of the entire German copyright law. On the other hand, they found it curious that we would then have the brief and flexible law of fair use. Why not something in the middle?
Great question. I think the answer is a blur of history. Fair use does more than allow uses of copyrighted works. It is the place for experimenting with technology, exercising free speech, and adapting to new creativity. Any attempt to be more specific would squelch those important pursuits. In the original 1976 Act, most of the other exceptions were comparatively brief. The leadership in Congress understood the importance of making the exceptions workable. True, some were complicated, but they were usually for the benefit of industries that would likely have laywers up to the challenge. In more recent years, however, the drafting of exceptions has been heavily influced by multiple interested parties with divergent views. The result is a statute that attempts to assuage diverse concerns and satisfy am amalgamation of lobbying pressures. "Workable" may not be the purpose of some statutes.
Did I say "assuage"? That sounds too much like "sausage." I was indeed deep in Germany, near the Czech border, within sight of Richard Wagner's estate, and perhaps giving him a little tweak about copyrights. Most of all, I had a splendid time with great colleagues and students. I also came home with a few more new insights about German copyright.
Thanks for your interest!
