Press on <i>Golan</i> case

Today's article ("Trolls are Back -- In Suits Testing Copyright Restoration Law") by Tresa Baldas in the National Law Journal discusses the Golan v. Ashcroft case. The article explains some of the controversy over the wide scale removal of works from the public domain that occurred when the URAA was passed.

The unprecedented restoration under the URAA as a huge windfall for a select number of "owners," mostly corporations, not artists or their heirs. A look at the numbers of Notices of Intent to Enforce (NIEs) filed with the Copyright Office is instructive: The 48,000 titles for which NIEs were filed are in the hands of only 1,000 purported "owners." That means we have single entities (typically large publishing corporations) registering "restored" copyrights in thousands of works. The benefit of the restoration therefore does nothing to encourage the true innovators and creators (artists writers, musicians, or film makers) to create more works in the future.

Of course, I disagree with the sentiments of the MC Escher and Troll lawyers who suggest that its "baffling" or "specious" that the public domain fosters creativity. It is well documented that the public domain is a source for much new creative work. Creative Commons explains this further. And this article, by Matthew Baldwin, echos a theme I'd like to investigate further: how the entertainment business benefits from the public domain.

I also disagree with characterizing the public domain status of imported foreign works, which had fallen into the public domain through lack of notice, as a "loophole." Chris Sprigman has a excellent article (forthcoming) that discusses the importance of the formalities (registration, notice, renewal) that were effectively abolished with the 1976 Copyright Act. The article discusses the problem of "unconditional copyright" which leaves "commercially 'dead' works" locked up. CIS's Kahle v. Ashcroft case raises similar issues.

Finally, the idea that Congress was "obligated" to pass the URAA in order to meet international treaty requirements is bogus. Many other countries have complied with the Berne Convention and have done so in ways that do not provide such an enormous windfall to select "restored" copyright owners.