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| DATE | 2017-04-25 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout of NYLXS] Copyright Wars Orchastras 2011
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http://www.chronicle.com/article/A-Professors-Fight-Over/127700/
Supreme Court Takes Up Scholars' Rights
Benjamin Rasmussen for The Chronicle
Lawrence Golan conducts musicians at the U. of Denver, performing
Puccini's "Suor Angelica." His ensemble gets only about $4,000 to rent
and buy music each year. That means it can perform some copyrighted
works but must rely on the public domain for about 80 percent of its
repertoire.
By Marc Parry MAY 29, 2011
DENVER
When Lawrence Golan picks up his baton here at the University of Denver,
the musicians in his student orchestra see a genial conductor who
corrects their mistakes without raising his voice in frustration.
Yet Mr. Golan is frustrated, not with the musicians, but with a
copyright law that does them harm. For 10 years, the music professor has
been quietly waging a legal campaign to overturn the statute, which
makes it impossibly expensive for smaller orchestras to play certain
pieces of music.
Now the case is heading to the U.S. Supreme Court. The high-stakes
copyright showdown affects far more than sheet music. The outcome will
touch a broad swath of academe for years to come, dictating what
materials scholars can use in books and courses without jumping through
legal hoops. The law Mr. Golan is trying to overturn has also hobbled
libraries' efforts to digitize and share books, films, and music.
The conductor's fight centers on the concept of the public domain, which
scholars depend on for teaching and research. When a work enters the
public domain, anyone can quote from it, copy it, share it, or republish
it without seeking permission or paying royalties.
The dispute that led to Golan v. Holder dates to 1994, when Congress
passed a law that moved vast amounts of material from the public domain
back behind the firewall of copyright protection. For conductors like
Mr. Golan, that step limited access to canonical 20th-century Russian
pieces that had been freely played for years.
"It was a shocking change," Mr. Golan says over dinner at a
tacos-and-margaritas dive near the University of Denver's
mountain-framed campus. "You used to be able to buy Prokofiev,
Shostakovich, Stravinsky. All of a sudden, on one day, you couldn't
anymore."
Other works once available but now restricted include books by H.G.
Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock,
Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo
Picasso. The U.S. Copyright Office estimated that the works qualifying
for copyright restoration "probably number in the millions."
Congress approved the recopyrighting, limited to foreign works, to align
U.S. policy with an international copyright treaty. But the Golan
plaintiffs—a group that includes educators, performers, and film
archivists—argue that bigger principles are at stake. Does Congress have
the constitutional right to remove works from the public domain? And if
it does, what's stopping it from plucking out even more freely available
works?
"If you can't rely on the status of something in the public domain
today—that is, if you never know whether Congress is going to act again
and yank it out—you're going to be a lot more cautious about doing
anything with these materials," says Mr. Golan's lawyer, Anthony
Falzone, executive director of the Fair Use Project and a lecturer in
law at Stanford Law School. "You really destroy the value and the
usefulness of the public domain in a profound way if the rug can be
pulled out from under you at any time."
The Radicalization of Golan
Before the rug was yanked out from under him, Mr. Golan had no
experience as an activist. He still doesn't seem like one. Outside the
orchestra pit, the conductor could pass for an off-duty businessman:
trim build, clean-cut dark hair, slacks, waist-length tan jacket. The
tenured professor has taught conducting and led the 80-student Lamont
Symphony Orchestra at this private university since 2001. Yet he has
done little to publicize his cause on campus, at least judging from the
reactions of others in the music school one recent evening as the halls
buzzed with costumed nuns rehearsing Puccini's Suor Angelica.
"No!" said one professor after hearing that Mr. Golan's case was going
to Washington. "Are you making it up?" asked another.
Mr. Golan keeps a low profile as a plaintiff because his life is about
music, not litigation. "I would love to have my name go down in history
like Arturo Toscanini, for being the greatest conductor of all time," he
says.
But because his quest for that glory coincides with a broad shift in the
reach of copyright law, he has a better shot at going down in history as
the capitalized name atop a Supreme Court opinion studied by future
generations of law students.
The son of a violinist in the Chicago Symphony Orchestra, Mr. Golan was
just starting his own professional career when Congress passed the
copyright restoration.
The change was surprising from a philosophical point of view: Under
copyright law, the Constitution grants authors a limited monopoly over
their works as an incentive to promote creativity. Over the years,
Congress has often delayed the passage of works into the public domain
by lengthening the duration of copyright terms. But removing pieces
already there was different, Mr. Golan's lawyers argue, a radical change
in what one scholar describes as the basic "physics" of the public domain.
That may sound abstract, but the impact on Mr. Golan was direct. When a
work is in the public domain—that Puccini opera, say—an orchestra can
buy the sheet music. Symphonies typically cost about $150. And the
orchestra can keep those pages forever, preserving the instructions that
librarians laboriously pencil into scores. But works under copyright are
typically available only for rent. And the cost is significantly higher:
about $600 for one performance. With the flip of a switch, the new law
restored copyright to thousands of pieces.
For big-city orchestras like the New York Philharmonic, that change is
like a "mosquito bite," Mr. Golan says. But Mr. Golan's university
ensemble gets only about $4,000 to rent and buy music each year. That
means it can perform some copyrighted works but must rely on the public
domain for about 80 percent of its repertoire. And $4,000 is relatively
generous. Other colleges might have only $500 to spend on music. When
the Conductors Guild surveyed its 1,600 members, 70 percent of
respondents said they were now priced out of performing pieces
previously in the public domain.
Teaching suffers, too. Every year, for example, University of Denver
students compete for the honor of playing a concerto, a piece in which
the orchestra accompanies a solo instrument. But when a pianist wanted
to audition with a piano concerto by Prokofiev, a Russian composer who
died in 1953, Mr. Golan was forced to tell her no.
"It's one that any aspiring pianist needs to learn, and to have the
experience of actually playing it with orchestra is phenomenal," Mr.
Golan says. But "we just didn't have the money in the orchestra budget
to pay the rental price."
The problem soon got worse. In 1998, after lobbying by entertainment
groups like the Walt Disney Company, Congress passed another law,
extending copyrights by 20 years. This Copyright Term Extension
Act—mocked by critics as the Mickey Mouse Protection Act—meant that a
work would not enter the public domain until up to 70 years after its
creator's death.
That legal one-two punch made it hard for Mr. Golan to play both foreign
and American works, like Gershwin's Rhapsody in Blue.
In response to those changes, reform-minded academics at top law schools
fought back with multiple lawsuits challenging the constitutionality of
the statutes. The conductor's tale made him an ideal poster child for
their war to protect the public domain.
Reformers suffered a defeat in 2003, when the Supreme Court rejected an
online book publisher's challenge of the 20-year extension. In that
case, Eldred v. Ashcroft, the court found the change acceptable in part
because it had not "altered the traditional contours of copyright
protection."
Think of the Golan case as "Eldred, the Sequel." Only this time the
question isn't whether Congress can delay works from entering the public
domain. It's whether removing works already there is a "bright line"
Congress can't cross.
'Fairly Horrible'
If that bright line dims, scholars and librarians will have problems. To
understand why, consider the copyright confusion faced by Elizabeth
Townsend-Gard.
Ms. Townsend-Gard is an associate professor at Tulane University Law
School. As a graduate student in the 1990s, she studied history at the
University of California at Los Angeles. Her dissertation was a
biography of Vera Brittain, a British author known for her World War I
autobiography, Testament of Youth. Ms. Townsend-Gard mined letters,
diaries, photos, and other texts for her research. But she worried about
getting permission to publish materials she needed, because Ms.
Brittain's literary executor, too, was writing a biography of the author.
In 1996 the ground shifted under Ms. Townsend-Gard's feet. At the outset
of her research, almost all the works she needed had been in the public
domain. When she finished, because of the restoration now under attack
by Mr. Golan, almost all those works were under copyright.
She ultimately diversified her project so that it became a comparative
biography of many subjects rather than just one. But she also grew
fascinated with the copyright complexities surrounding the daily work of
historians. Ms. Townsend-Gard ended up going to law school after
finishing her Ph.D., and invented a software tool, called the
Durationator, designed to tell users the copyright status of any work.
The market of scholars who might need that tool is large. The law at
stake in Golan alone potentially affects anyone studying works created
or published by non-U.S. authors or publishers from 1923 to 1989. Most
of those materials were in the public domain before. Now they are
covered by a complicated copyright statute, says Ms. Townsend-Gard.
"For people who work on the 20th century, it's fairly horrible," she says.
Now pull back from the view of an individual scholar, and imagine you
are working on one of the numerous projects to make millions of digital
books available online. Libraries, archives, Google: Copyright
restoration has big consequences for their digitization efforts. Most of
those ventures will not publish the full texts of works online unless
they are clearly in the public domain in the United States.
But when it comes to a foreign book, figuring out its copyright status
can require a mammoth investigation. That's because a work must have
been under copyright in its home country to qualify for restoration in
the United States, says Kenneth D. Crews, director of the copyright
advisory office at Columbia University Libraries. So, for example, when
Columbia considers digitizing a rare trove of Chinese books, including
many from the 1920s and 1930s of great interest to scholars, its staff
must grasp the legal nuances of a country that has gone through a
revolution—and a transformation of copyright law—since the books were
published. Or must try to, anyway.
And if the law is unclear, the university must decide whether
digitization is worth risking a potentially expensive lawsuit should a
rights-holder turn up later.
"It's deterring digitization on anything foreign," Ms. Townsend-Gard
says, "because people can't figure it out."
The U.S. Court of Appeals for the 10th Circuit took a different view. In
a 2010 ruling backing the government, it stressed the argument that
recopyrighting foreign works that had fallen into our public domain was
crucial to protecting American authors' interests abroad. Our
restoration of those copyrights could drive other countries to grant
retroactive copyrights to contemporary American works that had fallen
into their public domains.
And big money is at stake. The court quoted Congressional testimony from
the mid-1990s in which a group representing publishers, record
companies, and other copyright-based industries estimated that billions
were being lost each year because foreign countries were failing to
provide copyright protections to U.S.-originated works. The recording
industry told lawmakers that there were "vastly more U.S. works
currently unprotected in foreign markets than foreign ones here."
The government, in its Supreme Court brief, pointed out that the
copyright restorations were limited in scope. They applied to foreign
works whose creators weren't familiar with U.S. copyright procedures,
for example. Other works restored were previously ineligible for protection.
The Supreme Court is expected to decide the case during the term that
begins in October. Mr. Golan hopes to be in Washington to watch. Unless,
that is, he has a concert to conduct.
RELATED CONTENT
2 Universities Under the Legal Gun
Out of Fear, Institutions Lock Millions of Books and Images Away from
Scholars
Pushing Back Against Legal Threats by Putting Fair Use Forward
What You Don't Know About Copyright, but Should
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