For decades, the works of filmmaker Alfred Hitchcock, painter Pablo Picasso and composer Sergei Prokofiev were part of the public domain. Artists were free to adapt, perform and distribute these works without paying a licensing fee or seeking permission. But a 1994 law restored copyrights to works created by foreign artists. Now a coalition of orchestra conductors, teachers and film preservationists is challenging copyright restoration before the Supreme Court. We explore copyright and the public domain.


  • Eric Schwartz Partner, Mitchell, Silberberg & Knupp; Adjunct Professor, Georgetown University Law Center; Founding Director and Board Member, National Film Preservation Foundation
  • Michael Carroll Professor of Law and Director of the Program on Information Justice and Intellectual Property, American University Washington College of Law; Board Member, Creative Commons
  • Peter Decherney Associate Professor of Cinema Studies and English, University of Pennsylvania


  • 13:06:43

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. For decades, it was art and the public domain. If a college symphony wanted to perform "Peter and the Wolf" by Sergei Prokofiev, if a film director wanted to sample or adapt Hitchcock's original "Men Who Knew Too Much," they could do it without permission from the original creator or their estate. These works belong to the public through a court in the International Copyright System. But things changed in the 1990s when Congress effectively took them out of the public domain.

  • 13:07:33

    MR. KOJO NNAMDIThis month, the Supreme Court considered the narrow question of whether Congress overstepped its authority by restoring copyrights to works in the public domain. But the case raises broader questions about international law, evolving technologies and free speech. It may even help to explain why Hollywood makes more and more bad sequels and prequels these days. Joining us in studio to discuss is Eric Schwartz.

  • 13:07:59

    MR. KOJO NNAMDIHe is a copyright lawyer and a partner at the firm Mitchell, Silverberg and Knupp. He's a former acting general counsel of the United States Copyright Office. He founded the National Film Preservation Foundation. Eric Schwartz, good to see you again.

  • 13:08:13

    MR. ERIC SCHWARTZThank you for having me back.

  • 13:08:15

    NNAMDIAlso in studio with us is Michael Carroll. He's a professor of law and director of the program on information justice and intellectual property at American University's Washington College of Law. He is a co-founder and board member at Creative Commons. Michael, thank you for joining us.

  • 13:08:32

    MR. MICHAEL CARROLLThank you, Kojo.

  • 13:08:33

    NNAMDIAlso with us is Peter Decherney, professor of cinema studies and English at the University of Pennsylvania. He's the author of "Hollywood and the Cultural Elite: How the Movies Became American." Peter, thank you for traveling down from Philadelphia to join us.

  • 13:08:49

    MR. PETER DECHERNEYNice to be here.

  • 13:08:49

    NNAMDI800-433-8850 is the number to call. You can also ask a question or make a comment at or you can send us e-mail to How do you understand public domain? 800-433-8850. Sergei Prokofiev's "Peter and the Wolf" was first performed in Moscow in the 1930s, but it quickly became part of an American pop culture in the 1940s. Walt Disney produced a famous animated version of the story and music and it became a fixture of symphony performances for children. Here's David Bowie and the Philadelphia Orchestra performing it.

  • 13:09:33

    MR. DAVID BOWIEEarly one morning, Peter opened the gate and went out into the big green meadow.

  • 13:10:02

    NNAMDIFor decades, this piece effectively belonged to the American public. If anyone wanted to, they could perform it in public or write a hip-hop version with a different ending. But that changed in 1994 when the work was taken out of the public domain and brought under copyright. Michael Carroll, I will start with you. The Supreme Court recently heard arguments about that law. Tell us about Golan v. Holder.

  • 13:10:28

    CARROLLOkay, great. So, Golan is a case challenging whether Congress has power to, quote, unquote, "restore copyright" in works that are out of copyright in the United States. And the way you get out of copyright is under our older rules you had to opt into the copyright system. You either had to file a registration and publish your work with a notice. If your work was created outside the United States, the U.S. government was not required to give copyright to the foreign author, unless we had some kind of treaty with the country of origin.

  • 13:11:03

    CARROLLAnd some of the works that are at issue were created in countries where did not have that kind treaty at the time they were created. So for our purposes, we didn't give copyright and this is an old American tradition. Throughout the 19th century, we only give copyright to American authors and we didn't give British authors any copyright. We were a pirate nation in the eyes of the British publishers.

  • 13:11:28

    CARROLLSo, as the international system grew and we entered into more and more treaty obligations, we entered into a big one with the Berne Convention on Artistic and Literary Works, which was the big European agreement, where all the European countries would give each other copyright in each other's works. When we joined that, we then agreed that we would start recognizing the copyrights of those works.

  • 13:11:57

    CARROLLAnd controversially, we have chosen to interpret one piece of that to require us to, quote, unquote, "restore the copyrights" to these works that we had been choosing not to give copyright to. And the question is, does Congress have the power to do that? Once a copyrighted work is in the public domain, meaning it's not under copyright, can Congress reverse course and put it back under copyright? Whereas once in the public domain, always in the public domain.

  • 13:12:25

    NNAMDIWho is Lawrence Golan?

  • 13:12:27

    CARROLLSo, there are a number of plaintiffs, but Golan is the lead plaintiff. He is a professor at the University of Denver. He's also a conductor of a community orchestra. And what's -- he has a very distinct stake in this. He wanted to perform "Peter and the Wolf" and some of these other musical works. He used to just have to pay about $100 to rent the sheet music for his orchestra. Now that they're under copyright, the cost is significantly higher to the point where he cannot, on a community budget, he cannot afford to perform this music.

  • 13:12:57

    NNAMDIEric Schwartz, the government is arguing that it didn't just conjure up copyrights out of nowhere or steal these works from the public, it was in fact restoring copyrights to foreign artists who never secured them in the United States. You are not involved in the Golan v. Holder case, but you helped draft the law that Congress passed in 1994. Why did Congress do this?

  • 13:13:17

    SCHWARTZThe law wasn't passed in a vacuum. In 1988, the U.S. joined the Berne Convention and the treaty required, as a member of treaty membership between countries, for countries to restore protection for works that were still protected in another country. Prokofiev's a good example. If Prokofiev's works are, first, are protected in Russia but they were unprotected in the U.S., which was the case from 1936 until 1996, the U.S. was required under Berne to restore protection for the remainder of term.

  • 13:13:54

    SCHWARTZSo, it's a put back. And it's unusual. It's rare. But it's not unprecedented. The Supreme Court is hearing the case, really, only on two questions both legal. One is, does Congress have the power under Article 1 in the so-called Copyright Clause to do it? And two is the relationship of copyright law to the First Amendment. And in that relationship, under what test, a lower standard test or a higher standard test must the First Amendment and copyright relationship be reviewed for constitutionality.

  • 13:14:30

    SCHWARTZAnd then, depending on which of the two tests did the U.S. government, in this instance, meet that test. And the U.S. government argues that it did. It had three interests, principally. One, to comply fully and completely with international treaties. That wasn't important just for copyright law, but across all treaties. And in the case of this agreement, the World Trade Organization Agreement cuts across all goods and services.

  • 13:14:56

    SCHWARTZSo, it was important for the U.S. to be in full compliance with the Berne obligations, which were put into the Trips agreement. The second obligation -- and this was considered by the lower court which has upheld the constitutionality as being the only reason to uphold the constitutionality was whether or not in this instance the U.S. works would be fairly protected abroad.

  • 13:15:24

    SCHWARTZThis was the if you give it, we will get it. And having worked in the government and having worked for example on a Russian Trade Agreement. The Russians specifically said to the United States in an agreement signed by Presidents Clinton and Yeltsin that if you provide this protection to restore our works in your country, we'll restore your works in ours. And that was put into the trade agreement. And, in fact, the Russians did provide the retroactivity.

  • 13:15:49

    SCHWARTZAnd third and finally was just fairness. Most foreign authors like a Prokofiev never could comply with the very complicated U.S. law requiring that they put a C and a circle on a work to get protection. Register and renew after 28 years and so forth. So, it was just deemed a matter of plain fairness to provide protection for foreign works. It's a small class of works, and I don't mean to lose some of our listeners, but it's not really as controversial. Copyright and controversy seems to go hand in hand sometimes, but not necessarily in this instance.

  • 13:16:22

    NNAMDIWell, we never lose our listeners. And here's how we keep them. 800-433-8850. Do you think strong copyright protects artists? 800-433-8850. Or do you think they stifle artistic expression? You can also go to our website, Join the conversation there. Peter Decherney, an interesting group of people is challenging this law. You've got music teachers and conductors, you've got free speech advocates and then you've got film historians like yourself. How does copyright affect the work you do as an academic?

  • 13:16:55

    DECHERNEYSo Eric suggested that it's only a small group of works that are affected. But the register of copyrights says that it could be as many as millions of works, likely millions of works. So it's not a small class. It's also not really an abstract issue. There are a lot of people who are really directly affected. So, composers, but also you got a lot of people involved in film restoration. If you wanted to restore a film before the '94 act, if it was in the public domain you could spend a lot of money restoring it. And then be able to make money and recoup your costs by releasing it to DVD, releasing it on TV.

  • 13:17:29

    DECHERNEYBut what happens to a lot of these works is it's not just that their copyrights restored and you have to pay money to get permission, they become orphan works. So they were in the public domain, they belonged to no one. All of a sudden, they belong to someone but it's not clear who they belong to. And I get to track down the owner if that still exists. And so, if you wanted to restore this work and it belongs in the public domain you could. Now, you know, now that it's an orphan work, it's just impossible.

  • 13:17:58

    NNAMDIHow does it affect your day-to-day work in research as an academic?

  • 13:18:02

    DECHERNEYWell a lot of works that I teach come from distributors, small distributors like Keno video. And these were companies that had large catalogs and they were catalogs that defiantly shrunk after 1994. They released public domain films, they put them on DVD and they couldn't do that anymore. Sometimes because they couldn't afford to, other times because they couldn't get permission to do it.

  • 13:18:23

    NNAMDIYou wrote an interesting amicus brief in this case with the help of Michael Carroll, who's also with us. One of the arguments you make is that the bad films that Hollywood is making today, the sequels, the prequels are a byproduct of shrinking public domain. Please explain. Michael Carroll, please feel free.

  • 13:18:41

    CARROLLWell, I'm going to let Peter do that one because that's his argument.

  • 13:18:45


  • 13:18:46

    DECHERNEYSo Hollywood's really benefited tremendously from the public domain throughout their history. I think it's cheeky in the in the meekest brief to suggest that one of the alliance parties, one of these groups that's really used to rely on the public domain is actually Hollywood because we tend to think of them as being a composer, a conductor of a small symphony. But Hollywood has benefited tremendously from the public domain.

  • 13:19:09

    DECHERNEYSo many great films began as adaptations of public domain works. Some of the bestselling films in history were public book domain works. And so, I mean, I think it's only fair that new filmmakers, that new companies have the advantage of taking (unintelligible) works.

  • 13:19:25

    NNAMDI"Snow White," "Alice in Wonderland."

  • 13:19:26

    DECHERNEYYeah, exactly. "Snow White," "Alice in Wonderland," most Disney films. Disney knew what he was doing when he used the public -- when he relied on the public domain for his first feature film. For his very first animated cartoons, he knew that audiences liked the works and they would come to see them. And he could take a chance by making animated feature film, a pretty big risk to take because he knew that the characters were good, the story was good and audiences were going to come see a new version of that work.

  • 13:19:51

    NNAMDIAnd in other words, in some respects, he was hedging his bets because he knew the public already knew this. And by closing domain, they don't any longer have the opportunity to do that anymore.

  • 13:20:01

    DECHERNEYRight. And he was doing what filmmakers and other artists had done for centuries.

  • 13:20:05

    NNAMDIEric, you're a copyright lawyer but the irony here is that you're also a film preservationist. So why do you disagree with some of Peter's points? How do you see copyright affecting the study of film and film preservation?

  • 13:20:17

    SCHWARTZWell, first of all, on preservation, I think most archives would tell you that the status of copyright protect-ability is irrelevant. I mean, a good archivist saves the material, regardless of its copyright status. If they have a copy, they make sure it's transferred onto safe and secure material. The question then becomes, how it or if it can be made available, with or without the rights holders.

  • 13:20:39

    SCHWARTZIt is true that Hollywood has always cannibalized itself. But this actually goes to the point of copyright law, what it doesn't protect. It doesn't protect ideas. It only protects the expression of ideas and nothing, for example, in that issue in the Goldwyn case, changes that. So, for example, boy meets girl, boy loses girl and then miraculously, within the last five minutes of the film, boy and girl are somehow reunited and you roll the credits.

  • 13:21:07

    NNAMDIYou just gave the plot away. Go ahead.

  • 13:21:09

    SCHWARTZThat pretty much describes a 100 years of romance movies, I think. And that's totally unprotected by copyright law. So in terms of production of materials, there's always the opportunity to take the general ideas and use it. In terms of usage, the copyright law has built in exceptions for educational uses and others. Where Peter and I disagree is, you know, on the breath of how broad those exceptions should be for researchers and scholars.

  • 13:21:36

    NNAMDIBefore I go to you, Michael Carroll, allow me to go to Jeff in Bethesda, Md. to talk about some of the more practical effects that Jeff sees in this. Jeff, you're on the air. Go ahead, please. Hi, Jeff, are you there?

  • 13:21:50

    JEFFYes, I am. Can you hear me okay?

  • 13:21:51

    NNAMDIYes, go right ahead, please.

  • 13:21:53

    JEFFThank you for taking my call. I'm a amateur musician. I'm in a community orchestra and I wanted your guest's opinion on the idea that some of these protected musical pieces are actually part of our cultural heritage. I'm thinking, specifically about the works of Gershwin, the estate of the Gershwin family is extremely protective of the names and the music and those remain under copyright. I don’t have any argument with people being able to reap the benefit of their work.

  • 13:22:28

    JEFFHowever, at some point, these works are so widely known and so engrained in our culture that I think may become part of our shared American cultural patrimony and not really under the control of someone controlling an estate where there's not even a direct descendent benefiting from the work itself. I'll take my answer off the air.

  • 13:22:50

    NNAMDIHey, Jeff, I should've had you as a guest, but Michael Carroll, perhaps, in answering this question, it would be useful to take a step back and talk exactly about why we have copyrights and what the public domain is. But go ahead, (word?) .

  • 13:23:02

    CARROLLThank you, that's exactly what I'd like to talk about. So the callers point is dead on, that the public domain is part of the structure of copyright. Copyright is a temporary monopoly that we give to the author as an economic incentive so that either the author themselves or their publisher will invest money in producing the works and distributing it to the public. But it's a temporary monopoly.

  • 13:23:24

    CARROLLThe Constitution itself says Congress only has power to give out these rights for a limited time. Why is that? Precisely because these works have to become part of our common cultural heritage. They have to be available to all of us for use. And Congress has kept making the term of copyright longer and longer and there was a case in the Supreme Court in 2003 about whether extending it for -- extending existing copyrights for 20 years was constitutional.

  • 13:23:53

    CARROLLThe Supreme Court said that was okay, but now the court is being offered the chance to draw a line in the sand and say Congress, no more. Once this belongs to the public, it stays in the hands of the public, even if it's tough on foreign authors for precisely the reason that caller says. And if Congress is allowed to restore these copyrights, then they, you know, the Gershwin family and other famous copyright owners can keep going back to Congress, knocking on the door, saying give me back my lost copyrights. And there has to be a line drawn. And that's really what's at stake in this case.

  • 13:24:25

    NNAMDII have to draw a line to take a break right now. We'll come back and continue this conversation. You can still call us at 800-433-8850. We're talking about copyright and the public domain. Do you think strong copyright protects artists or do they -- do strong copyrights stifle artistic oppression? What's your view? Artistic expression, what's your view? 800-433-8850 or you can simply go to our website, join the conversation there, I'm Kojo Nnamdi.

  • 13:26:59

    NNAMDIWelcome back to our conversation about copyright and the public domain. We're taking your calls at 800-433-8850. How do you understand the public domain? 800-433-8850 We're talking with Peter Decherney. He's a professor of Cinema Studies and English at the University of Pennsylvania. He's the author of "Hollywood and the Cultural Elite: How the Movies Became American."

  • 13:27:23

    NNAMDIMichael Carroll is a professor of law and director of the program on information justice and intellectual property at American Universities Washington College of Law. He's also a co-founder and board member at Creative Commons. And Eric Schwartz is a copyright lawyer and partner at the firm Mitchell, Silberberg & Knupp. He's a former acting general counsel of the United States copyright office and the founder of the National Film Preservation Foundation. Eric Schwartz, you wanted to respond to a point that Michael Carroll and Peter Decherney were making.

  • 13:27:55

    SCHWARTZYeah, just on the purpose of copyright law. You know, it's interesting, when you look at the constitutional clause of article one, section eight. Obviously, it's an enumerated power of Congress. Congress shall pass the laws but the grant is to authors. And I've always found that interesting that Congress, the first, you know, in the constitution and in the first act, understood that if you give authors, creators, this economic incentive, they will create things.

  • 13:28:23

    SCHWARTZNow, it is true and in my 20 years experience, I know it to be true, that creative people will create anyway. But you need, in some instances, to create a safe, economic environment to not only create, but also to distribute, because it costs money to do that, even in the digital age and to fail. And it's a craft and the purpose of the law, at least, what I've always thought the purpose of the law is, is to create sort of a middle class of people who can make a profession creating copyrighted materials, whether in, you know, music or film or the performing arts or whatever.

  • 13:28:58

    SCHWARTZAnd for those of us who have no talent to do any of those things, like, myself, it's the opportunity because we don't subsidize the arts, to essentially allow this economic incentive and this economic model. And if you look at the statistics from the U.S. government, you know, there are over six and a half percent of the U.S. gross domestic product, comes from the core copyright industries.

  • 13:29:21

    SCHWARTZThese are statistics that come from the U.S. government. So it's successful, there are a lot of people employed in the copyright industries, collectively. And it then has these carve outs and these exceptions, several of them. One, as Michael said, that it ends at a certain time or whether it's good policy or bad because it ends too long and that was the callers comments, is a public policy argument for, you know, Congress to consider and they have. And in fact, the Supreme Court said, in its decision on term extension, essentially, it's constitutional whether it was good public policy.

  • 13:29:57

    SCHWARTZJustice Ginsburg, all but said, it's not, but it's not our decision on the court. It was for Congress to decide that. But it's to create the economic incentives to create and distribute and I think, that, you know, that -- to that extent it works and then you carve out exceptions for users.

  • 13:30:12

    NNAMDIWhich brings us to another area and that is, kind of, what is creativity? Here is Steve in Washington, D.C. Steve, you're on the air. Go ahead, please

  • 13:30:20

    STEVEHi, I'm an author of a success biography of Charlie Chaplin and I'm in the process of attempting to convert it into a video book, an iPad rich video version of it and some of his most critical movies were the very first year he made them, which was Keystone and the films are out of copyright, but the people who've restored them, claim very high rates for the use of these un-copyrighted films.

  • 13:30:50

    STEVEAnd when I spoke to them about my not using the sound edition, because they complained that the composer would be getting jipped and that I could've added my own music, they still objected. And I'd just be curious to hear how people think about this business of a film that actually is out of copyright being able to...

  • 13:31:07

    NNAMDIGlad you brought that up. Because one can make the argument that all art grows out of imitation. Peter, if we look at comedians of the '20s, someone like Charlie Chaplin, we'll find out that they often emulated or outright stole material from one another.

  • 13:31:23

    DECHERNEYYeah, exactly. And I've written about this and I have a big section of this in a forthcoming book I have on the history of Hollywood and copyright. And, you know, we talk a lot now about remix culture, the kind of work that's on YouTube and a lot of artists and theorists think that it's a return to a kind of folk culture, 19th century kind of sharing culture.

  • 13:31:41

    DECHERNEYAnd the question I have is sort of when the sort of the close down, when that changed. And I think Chaplin's an important piece in the puzzle here. When Chaplin learned to be a comedian, he learned by copying other comedians. Other comedians learned by copying him. Some of the biggest comedians of the day including Harold Lloyd's first jobs were as Chaplin imitators.

  • 13:32:01

    DECHERNEYHarold Lloyd actually made more money at one point then Chaplin. And yet he started out as a Chaplin imitator. And then in the '20s, things started to change. Those, kind of, Vaudeville culture of comedians and imitation moved into film and all of a sudden the -- it was -- you could meet a Charlie Chaplin imitator on every stage. You could actually have a film of Charlie Chaplin on every screen.

  • 13:32:22

    DECHERNEYAnd Chaplin started to realize that he could actually occupy every screen and he started to sue his imitators. And it went on for a long time, the case. And finally he won and it was, I think, the first character copyright case. Character copyright doesn't become a major part of copyright law for another couple of decades. But he did make the case that he owned this character and I think the other side in this case, the imitators were right to suggest that -- actually a lot -- much of Chaplin, it was hard to figure out exactly what Chaplin contributed.

  • 13:32:53

    DECHERNEYAll the elements were there and other comedians, the fun of the walk, the cane, even the outfit. You know, New York Times headline at the time said "Chaplin's Pants, Major Issue In Case." And -- but I think though, that this is when we started to see the, kind of, closing down of this culture of imitation. When one character, one figure, one actor, could start to really own, what before, had just been a stock of comedians in the trade.

  • 13:33:16

    NNAMDIWell, Michael Carroll, when I perform a Shakespeare sonnet or a part of Peter and the Wolf, I mean, using the artistic expression and the intellectual property of someone else but I'm also expression myself through that art. In fact, you could say that my right to expression is exercise through, sometimes, other people's words or music. It's one of the interesting ideas lurking underneath this, specific legal issues. Is this where free speech comes in?

  • 13:33:40

    CARROLLAbsolutely, right. So in the Golan's argument is as an orchestra conductor, he wants to use his artistic skills in sharing with his audience, the music of Prokofiev and others. And he's now, essentially, being silenced by the copyright fees that are blocking him from doing that. So his argument is, yesterday, I was free to express myself artistically and today I'm not. And Congress doesn't have the power to silence me in that way.

  • 13:34:13

    CARROLLAnd the response is, well, copyright does that all the time. And so this is where this -- we're in a new phase where we're trying to work out this relationship between copyright control and free speech and I think the users desire and ability to speak is becoming a more important and better recognized interest then it was before in the law.

  • 13:34:36


  • 13:34:37

    SCHWARTZI think, you know, the points that Michael and Peter raise are what has once been referred to as the metaphysics of copyright law. Which is the idea expression divide and how you put something's in one category where it's un-protectable and where you put it into another where it is protectable. I think on the first amendment, free speech area, though, in Golan. The reference point is about an eight year old case, the Eldridge case in which the Supreme Court said that the first amendment bares less heavily when speakers assert the right to make other peoples speeches.

  • 13:35:15

    SCHWARTZSo, in other words, in Golan, what he's taking is not his own expression but it's the composition that pre-existed him and whatever he's doing. One thing I should mention, and this is probably too hyper technical for this discussion, but there are built in exceptions into the law for users of these restored works, especially for so-called derivate works. If you took the work and derived it, now there are dates and deadlines and all that stuff. But the point is, you can continue to exploit the work for the remainder of copyright.

  • 13:35:47

    SCHWARTZAnd all you and the restored rights holder have to do is come to something called a reasonable compensation which the drafters considered could be zero dollars in some instances and it might -- in the case in Golan.

  • 13:36:00

    NNAMDIHere is Mark in Bethesda, Md. Mark, you're on the air. Go ahead, please.

  • 13:36:05

    MARKHi, thanks for (word?) . So I'm an attorney here in the area, although I'm not a copyright attorney. And I also deal with comic books and comic books, of course, in gender, copyright disputes since the very existence of them. And the big case that's going on right now is that of Superman. And what I wanted to ask the -- your guests to, sort of, talk a little bit about a derivative argument of what you've touched on already with where it's not protecting the creator but that Congress has used the law to allow the heirs to revive copyright claims that had been actually shot down in court.

  • 13:36:41

    MARKFor example, the creators of Superman, Siegel and Shuster, lost in state court New York and in federal court. And then when Congress changed the law, they -- it allowed the heirs of these two gentlemen who are both now deceased to revive it and make a huge challenge in its creating an uproar. So, I think, some of the policy concerns that some folks have is that not that no one wants to see the creators be protected but that at some point in time, it needs to stop so it doesn't continue on to grandchildren, great grandchildren, great, great, great, great and therefore.

  • 13:37:15

    NNAMDII remember, recently, some controversy over the children of Dr. Martin Luther King and whether or not his "I have a dream" speech was, in fact, public domain or not. But, Peter Decherney.

  • 13:37:26

    DECHERNEYYeah, Mark Twain who was a proponent of expanding copyright laws argued before Congress that copyright laws should protect the children of authors but not the grandchildren. And this is something that we've been getting at and Eric was saying earlier that -- actually accusing us of making what's called a policy argument, lawyers like to call policy argument, right there. We can go back and change the law but it's not a legal argument that it actually has a reason for not upholding the law that's already been -- even if it's bad, that's already been passed.

  • 13:37:54

    DECHERNEYAnd I would actually suggest that's not true. That in this case, it's not just a policy argument. We've been talking about the meaning of copyright, but really, what we're -- in the U.S., it hangs on this very vague constitutional phrase that copyright is exists to promote the progress of science in the 18th century where, you know, use of that word, meaning knowledge. And so that's the line that has to be drawn.

  • 13:38:19

    DECHERNEYWhen are we promoting knowledge? And at some point, you might argue that, you know, we've vaguely extending copyrights so long that nothing enters the public domain, no one can use those works. We're actually hindering the promotion of knowledge or we're hindering the -- in this case, in Golan, we're hindering the distribution of material.

  • 13:38:37

    NNAMDIPerhaps it would be useful, Michael, to talk about the difference between using or even reproducing the works of others and stealing. You helped to start Creative Commons which is a unique space between conventional rules of copyright and the kind of wild west of no rules. Talk about that.

  • 13:38:56

    CARROLLOkay, great. So Creative Commons is an organization that, among other things, gives people some standardized copyright licenses. It's a way in which you can give the public permission to use your works. And it's one time permission, you can give it to everybody, then you can hold onto a few of the rights. So all of the licenses, for example, the most liberal would say do anything you want with this work, as long as you give me credit for the author -- as the author.

  • 13:39:22

    CARROLLAnd if you go onto Flicker, under the Creative Commons piece, you'll find about 25 million photos where people have said, this is my photo, all I want is credit, you go ahead. You make a calendar, put it on a mug, sell it, that's fine with me. We created these licenses on the theory that copyright has this one-size fits all approach to the world. The minute you create it, you get an automatic copyright.

  • 13:39:45

    CARROLLEven as we're speaking right now WAMU or the American University is getting a copyright in this program. And because of our treaty obligations, you're actually getting more then 190 copyrights around the world in this because copyright is all the time, always on, one-size fits all.

  • 13:40:02

    CARROLLCreative Commons is a way to opt out of that and say, actually, I don't want all that control. What I want is sharing. I want people to be able to use my work and not have to come to me for permission, so permission is already granted, here's my permission, and that's what the licenses do, and there's six -- six flavors of permission that we offer.

  • 13:40:23


  • 13:40:24

    SCHWARTZYeah. And Michael and I don't disagree on this. I mean, the Creative Commons license is a terrific idea. The difference is, it's an attribution and give it away, and if the copyright owners, at least with an economic rights have two interests, one is to say yes or no, and the other is to get paid, it's not a model for building a career in this. And to the caller's last question, at least the reasoning for term, and the reason the term is as it is, is because creating material is a craft.

  • 13:41:00

    SCHWARTZYou get better as a writer later on in life, as a songwriter and so forth, so the notion was that -- and it may be as in the case of composers, that your entire income is based on one composition. I have a client that, you know, has that very circumstance. But the idea of being it's later in life so that at least the economic money would flow in for a generation 50 years after death.

  • 13:41:25

    NNAMDIGot to take another short break. When we come back we will continue this conversation. If you have called, stay on the line. We'll try to get to your call. You can also send e-mail to Go to our website, and join the conversation there, or you can send us a tweet @kojoshow. Do you think strong copyrights protect artists, or do they stifle artistic expression? 800-433-8850. I'm Kojo Nnamdi.

  • 13:43:56

    NNAMDIWe're having a conversation on copyright and the public domain with Peter Decherney. He's a professor of cinema studies and English at the University of Pennsylvania, the author of "Hollywood and the Culture Elite: How the Movies Became American." Eric Schwartz is a copyright lawyer and partner at the firm of Mitchell, Silberberg, and Knupp. He's a former acting general counsel of the United States Copyright Office. He founded the National Film Preservation Foundation. And Michael Carroll is a professor of law and director of the program on information, justice and intellectual property at American University's Washington College of Law.

  • 13:44:30

    NNAMDIHe's a co-founder and board member at Creative Commons. Michael, one of our callers, the historian of Charlie Chaplin, spoke about how copies there are of these works that are in the public domain, and that the people who made those copies are exacting huge fees to use them. Is that the norm when it comes to public domain? I guess we need to answer Steve's question.

  • 13:44:49

    CARROLLWell, I think so. I think this is really important, and the Internet plays a big piece of the answer...

  • 13:44:53


  • 13:44:53

    CARROLL...because it's important to understand that copyright doesn't give you access rights. It's a rights of control. So when something goes in the public domain, the rights of control go away, there's -- the public does not receive an automatic right of excess. And the caller was complaining because somebody had the last remaining copies of these films and they were using their control over those copies to basically regulate access, and copyright law and the public domain don't directly speak to that question.

  • 13:45:23

    CARROLLSo they have the right to use contracts to control, you know, exact payment even if there's no copyright there. But digitization in the Google Books, digitization of multiple public domain books, and all of these other digitization projects, are really exciting. They're bringing the public domain back to life making it accessible in ways that we've never seen before. And in fact, the New York Times has touched on this in the last two days in its editorial page, yesterday supporting the petitioner's in Golan...

  • 13:45:54

    NNAMDISaw that.

  • 13:45:54

    CARROLL...and today celebrating all of these public domain books that are quite odd, and they're sort of scratching their head about who would spend the time digitizing these odd little books that are out of copyright, but it's one of the wonderful things about the public domain, is you have the freedom to spend your time digitizing these odd little books and sharing them with the rest of us.

  • 13:46:15

    NNAMDIEric Schwartz?

  • 13:46:15

    SCHWARTZYeah. I mean, there are two initiatives actually that, for my mind, are better models than Google Books. I mean, Google doesn't do anything out of the kindness of their hearts. That's an economic incentive for them to be doing it, and for now, at least, the Google Books project seems not to be going forward. One, for example, in a public-private partnership, the Library of Congress with Sony Music has created something called the National Jukebox.

  • 13:46:41

    SCHWARTZIt's on the Library of Congress's website, and what Sony did was owning the pre-1925 recordings, the entire -- about 80 or 85 percent of all the recordings made before 1925 of Victor and Sony Music, gave them to the Library of Congress to digitize and to put for free on the Library of Congress's website. Universal Music has also done an agreement with the Library of Congress to make its recordings before 1948 available for free, and these are streaming. So these are models that have a public-private.

  • 13:47:15

    SCHWARTZThe rights holders retain their rights if there's gonna be some other future economic gain for them, but the public really gains because you can go and get all of this for free, and streaming, but you can listen to all of it and the Library did a tremendous amount of value added with all of this additional information about each of the recordings and everything else. And now, yesterday I was on a call for about two hours with the Library, and we're talking about trying to do something similarly for film.

  • 13:47:43

    NNAMDIIn this age of global media empires, high-speed Internet, all content, be it recorded music or movies or sheet music can be copied and distributed around the world very easily. Peter, I'd like to know how this affects what you do. The Internet was still in its earlier days when Congress enacted this law that is being challenged, but there was no such thing as YouTube or Napster or iTunes. How has this all affected what you do?

  • 13:48:07

    DECHERNEYYeah. So I guess just thinking the way it affects the Golan -- Harvard Law professor, Charlie Nesson commented on the Eldred case in 2003, that the Internet was only mentioned once during the arguments. And I was listening for the Internet to be mentioned during Golan last week, and it was actually only mentioned once by Justice Sotomayor. And it is really important.

  • 13:48:32

    DECHERNEYIt did actually -- the Internet came up in another really interesting case last week where UCLA had been taking videos that they purchased and streaming them over the Web to students, and it was a case that was ultimately thrown out for the courts, and one of the things the court recognized is that you can longer think about a classroom as only being within four walls. Almost every classroom now has some virtual component.

  • 13:48:56

    DECHERNEYAnd rights holders are trying to suggest that there was really a major difference between what happened in a classroom when there was a teacher there and some students, and what happened if the same people were communicating over the web, and the court thought there really wasn't a difference, and I think that was an important step forward.

  • 13:49:09

    NNAMDIGotta get to the phones. Here's Kit in College Park, Md. Kit, you're on the air. Go ahead, please.

  • 13:49:14

    KITHi. Well, I basically just wanted to throw out there, what are the points of these really, really long copyrights that are, you know, they seem to be protecting corporations? And I guess it seems interesting to me that, you know, we have these extremely long copyrights, but they protect a child of an artist or the grandchildren of an artist. They protect a corporation who produces no meaningful output, and I guess I'm curious to hear what your listeners think about that.

  • 13:49:40

    NNAMDIWell, Eric represents the ears of, I think, Philip K. Dick, the science fiction writer, so you might want to talk about that.

  • 13:49:46

    SCHWARTZWell, no. I mean, again, this is a question of, you know, the policy of term extension which Congress rightly or wrongly decided in 1998 by extending the term. The U.S. isn't alone, in fact, the U.S. was playing catch up to the European Union which had adopted a life-plus-70-year term before that. The caller's question is what about the legal entities, when they own it, and in that instance, the U.S. is somewhat different than other countries, but not really unique in that the author can under U.S. law be a legal entity, a juridical entity like a studio or a record company.

  • 13:50:28

    SCHWARTZIn other countries, what happens is that the rights vest in a natural author, and then they transfer the rights to that legal entity. What is unique about the U.S. law is another technical provision called termination. What the drafters of the law, Barbara Ringer, who was the principal drafter of the '76 Act and a very strong proponent of natural authors created, was a provision that said after a term of time the author can recapture all of her rights, and that's unique in the world, and it's something where when the author gave something away very inexpensively to a legal entity or to someone else, they can recapture and reevaluate its worth as something very valuable.

  • 13:51:13

    SCHWARTZOne thing to say about the UCLA case, the case really was just a contract case in that the film producers had given contracts to UCLA for the use of the material, and the question was how broad was the contract. So I don't really think that that case necessarily will have a lot of impact moving forward.

  • 13:51:34

    NNAMDIKit, thank you very much for you call. But Peter Decherney, here's what's ironic and really curious. Today, Hollywood studios continue to line up in favor of strong copyright protections, but from a historical perspective, and what we discussed earlier, studios have relied on the public domain for some of their earliest and most successful hits. Why switch positions?

  • 13:51:55

    DECHERNEYNo. You've got me. It makes no sense at all. I mean, so one argument is that things have changed a little bit, and throughout much of the history, the same organizations, not the MPAA, but the organization that preceded it, the MPBDA, actually fought for expanded rights for Hollywood, especially in the '30s, '40s, and '50s, when Hollywood was constantly besieged by lawsuits from writers and playwrights who thought that they'd invented the western or the detective story.

  • 13:52:23

    DECHERNEYAnd Hollywood really fought to protect those categories and their right to draw from the same cultural heritage that writers had drawn from and playwrights had drawn from. And then things started to change slowly, but I think new technology is increasingly what drove Hollywood into this overly protectionist position.

  • 13:52:42

    NNAMDIWe got an e-mail from Alex who says, "How does copyright deal with fan fiction? For instance, many online forums are dedicated to writing fiction based on the Harry Potter universe. Authors do not expect compensation, but they are using a copyrighted set of characters." What do you say to that, Michael?

  • 13:53:00

    CARROLLSo copyright covers the work itself, and work that is substantially similar. So most of that fan fiction is using -- and let's use Harry Potter, is using J.K. Rowling's expression, her characters, and so they are using her copyrighted works. Now, what she's done, is she's actually given her fans a license, because you can give a license easily, and she's told the fans go ahead and write this fan fiction. But one of the things is copyright gives her the right to give permission or withhold permission.

  • 13:53:32

    CARROLLSo she said, you know, but you can't do certain things. I don't want my characters engaged in certain kinds of relationships. You're not allowed to reimagine my story in certain ways because I'm the copyright owner. One big part of why this should go into the public domain is we want to withhold that author control at some point and turn it over to the public and let the public's imagine run wild with these characters, because at some point they become the public's characters, not just J.K. Rowling's.

  • 13:54:00

    CARROLLBut for the life of the author, plus 70 years, it's gonna be J.K. Rowling and her heirs that will have the right to tell fan fiction writers what they can and can't do subject to the very important exception of fair use. A lot of what they're doing may be fair use, which is a user's right. But where you draw that line can by controversial in some cases.

  • 13:54:20

    NNAMDIEric Schwartz?

  • 13:54:21

    SCHWARTZI just wanted to put my film preservation hat on for a second and take my copyright one off, and address something that we were talking about a few minutes ago, and that's the digitization of materials. I think the listeners and public has to understand that there's a cost involved, a huge cost involved in doing that. Google reportedly spent over $700 million in its digitization of the libraries of the universities. And in film, the costs are even more expensive because of the nature of the material.

  • 13:54:50

    SCHWARTZAnd the heroes here are the archives, museums, and historical societies that retain the material, catalog the material, store the material at greats costs of temperature and humidity control, and then want to make it available. And for their sort of elevated status in doing that, the copyright law provides them with certain exceptions to use material in the last 20 years of copyright so that they and only they can make the material available to the public if the rights holder isn't doing that, and I think that's sort of a good balance of the rights between the rights holder's rights in some instances, and when they're not exploiting those rights, and the libraries and archives that have spent millions of dollars doing this sometimes, by the way, with public monies.

  • 13:55:30

    NNAMDIOnto Carson in Silver Spring, Md. Carson, you're on the air. Go ahead, please.

  • 13:55:34

    CARSONOh, hi, Kojo. Thanks for taking my call. Just a question to your panel, to follow up on your mention of e-books. I am interested in finding out why we don't hear more about the publishing industry for books being mentioned in these kinds of conversations. We hear more about, you know, digital being the great equalizer these days, and if the point of copyright is to enhance innovation, I would think a 28-year term like you get with books would encourage more turnover of copyrights, and with more turnover of terms, I would think that would increase the marketplace for innovation. Thanks. I'll take my answer off the air.

  • 13:56:09

    NNAMDIMichael, what do you say to that?

  • 13:56:10

    CARROLLWell, so, we should correct the record a little bit. Twenty-eight years used to be the term, prior to 1978 you got a 28-year term, and then you could renew it for another 28 years. But now all copyrights get the same term, and all copyrights get life of the author plus 70 years. Books are actually very much in the news in a lot of different ways.

  • 13:56:31

    CARROLLSo publishers are suing universities saying that you can't use e-reserves, that is because you're really just creating defective course packages, and you should get licenses from the book publishers in order to put chapters into an electronic reserve or something for students. We've got books -- textbook piracy, we've got people using BitTorrent and others. Students are very clever about working around the copyright system when they need to.

  • 13:57:00

    NNAMDIAnd this final tweet from @GriffinBarnett. "How should we conceive of the public domain? Is it just lack of copyright, or is substantive liberty speech property right?" Eric?

  • 13:57:14

    SCHWARTZOnce when I was at the copyright office, I was working the public information phones, and I heard someone next to me asking that question to another caller who was calling the office and asking whether the public domain was in Maryland.

  • 13:57:30

    SCHWARTZI don't remember the clever response that my colleague gave. I mean, I think you think of the public domain as that which is not protected by copyright, both in the ID expression realm, in the notion of fair use and the carve outs of exceptions in the other 15 sections of the law that provide exceptions, and then when the copyright term ends, however long that may be.

  • 13:57:52

    NNAMDIYou've got about 15 seconds.

  • 13:57:54

    DECHERNEYSo back to Golan, this is exactly what I think the case will hinge on, and will have an important Supreme Court decision about this very question hopefully in a few months. But whether or not the public domain always existed as something that's kind of natural, or whether it was then created by copyright. Once copyright had a term, things started to enter the public domain, or was there kind of a natural state of things in the public domain.

  • 13:58:13

    NNAMDIPeter Decherney is a professor of cinema studies and English at the University of Pennsylvania. Michael Carroll is a professor of law and director of the program on information, justice at American University's Washington College of Law, and Eric Schwartz is a copyright lawyer. Thank you all for listening. I'm Kojo Nnamdi.

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