INTERNET, DMCA PROMPT CONCERNS OVER STATE OF COPYRIGHT
Saying copyright was under attack, Register of Copyrights Marybeth Peters last week urged copyright community to make its voice heard in case set for review by Supreme Court. Peters’s comments came at American Intellectual Property Law Assn. spring meeting in N.Y.C. Implementing Digital Millennium Copyright Act (DMCA), which was enacted to bring the U.S. into line with World Intellectual Property Organization treaties, gets more controversial, Peters said, spurred in part by furor over law’s anticircumvention provisions. Copyright Office thought situation was bad several years ago, she said, but it “got worse” as Internet shifted public perceptions toward viewing content owners as greedy corporations and copyright itself as suspect, she said.
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Bottom line is that copyright owners are in bad position, Peters said. If they use technological measures to control access to their works, they're accused of blocking fair use, she said, but if they forgo protection measures, they're subject to massive piracy, particularly on Internet. Copyright, technical protection measures and corporations all are under assault, Peters said, and content owners will have tough job turning public opinion around.
Supreme Court’s apparent desire to 2nd-guess extent of Congress’s constitutional powers on copyright term limits for existing works is of greatest concern, Peters said. Laws increasingly are being subjected to constitutional challenge, she said. Although high court hasn’t taken on many constitutional challenges to copyright law, its decision to review Sonny Bono copyright extension act in Eldred v. Ashcroft raised question whether court intended to cut back on Congress’s ability to legislate in arena of term limits for existing works, she said. Court also will be deciding whether lengthening copyright terms for existing works violates First Amendment, she said. Question is whether such term limits are congressional or constitutional issue, Peters said.
Eldred is such critical case that if it goes awry, “we will have chaos,” Peters said. There are 2 cases in pipeline to legislation -- put in place under Trade-Related Aspects of Intellectual Property Rights Agreement -- that ensure that works protected in their country of origin also are protected here, she said. Outcome of those suits will hinge on what high court does in Eldred, she said. Peters urged copyright community to file amicus briefs in that case. And, she warned, same issues are waiting “just around the corner” for patent world.