Dick Eastman's news item (Online Genealogy Newsletter) No need to comment on this item. Just for your information. W. David Samuelsen - A Challenge to the Recent Copyright Act The U.S. courts are now wrestling with a legal issue that may impact many genealogists' access to republished records. The U.S. Congress passed the so-called "Sonny Bono Copyright Term Extension Act" on October 27, 1998. This act, sponsored by the late singer- songwriter and congressman, extended protection by 20 years for cultural works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50"; works made by or for corporations, known as "works made for hire," got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced. The law ensured that the estates of writers and composers would continue to collect royalties from the artists' works. It was also crucial for large publishing houses and movie studios like Disney and Warner Bros., which rely on revenues from licensing their old copyrighted products. For instance, the character of Mickey Mouse was copyrighted in 1928 as Steamboat Willie and would have entered the public domain in 2004. That would be a problem for Disney as their consumer products division and theme parks helped bring in $8 billion in 1998. The loss of the copyright probably would dilute their revenue stream. All this sounds like a great idea. However, the new act's implementation has had a negative impact on many people. Some claim that the new law is little more than corporate welfare. Eric Eldred and nine co-plaintiffs -- including Higginson Books (a publisher of genealogy and history reprints) and the American Film Heritage Association - have filed a complaint against the government with the US District Court for the District of Columbia. Harvard Law School professor Lawrence Lessig is handling the case pro bono. Lessig has two major gripes with the Bono law. First, he says it infringes on Eldred's freedom of speech: "The extension takes works that would have entered the public domain and privatizes them improperly; the result is like a tax on freedom of expression. Eldred can't publicly utter these words now without paying a penalty imposed by the government." Bono also violates the Constitution, Lessig says, because it flunks the copyright clause's "incentive" requirement. Since you can't give an incentive to a corpse - and the new law extended protection retroactively to works created by authors now dead - it fails the litmus test. "The Supreme Court has consistently said the primary purpose of copyright is not to give authors some particular benefit, but to protect the public domain," says Lessig. "Extensions can't be retroactive, because the Constitution gives Congress the right to grant exclusive rights only if those rights create incentives to produce more speech. Extending these benefits retroactively doesn't serve any purposes the copyright clause was designed for." The impact to genealogists can be found by looking at co-plaintiff Higginson Book Company. The company, managed by Laura Bjorklund, is a for-profit sole proprietorship that reprints books based on consumer demand in fields such as genealogy, historic maps, local and county history, and the Civil and Revolutionary Wars. It focuses on books originally printed in small editions that are no longer in print and therefore difficult to obtain from any other source. Ms. Bjorklund and her employees carefully research any book published after 1922 to determine whether or not it is copyrighted, which is often very difficult, given the type of rare books in which they specialize. The Copyright Extension Act prevented works published in 1923 from entering the public domain at the end of 1998. Because of the difficulties in tracking the authors or heirs of such old works, the Act effectively means that Higginson Book Company will be unable to reprint any books copyrighted in 1923 for another 20 years. For more information, look at the following URLs: http://cyber.law.harvard.edu/eldredvreno/ (earlier info) http://eon.law.harvard.edu/openlaw/eldredvreno/ (most recent info) My thanks to Richard J. Yanco for letting me know about the two Web sites