via NYTimes Op-Ed:
By PETER DECHERNEY
Published: October 4, 2011
IN 1998, in a controversial piece of legislation, Congress extended the length of copyright protection in the United States by 20 years, freezing the entrance of works into the public domain. Four years earlier, however, Congress took a less well-known but even more drastic step: it shrank the public domain. With the 1994 Uruguay Round Agreements Act, Congress restored the copyrights of many foreign works that previously had been freely available.
Among the potentially millions of creations that lost their public-domain status were Sergei Prokofiev’s “Peter and the Wolf,” Picasso’s “Guernica,” the British films of Alfred Hitchcock, Astrid Lindgren’s earliest Pippi Longstocking books, stories by H. G. Wells, the drawings of M. C. Escher, Fritz Lang’s “Metropolis,” Jean-Luc Godard’s “Breathless” and Leni Riefenstahl’s “Triumph of the Will.” Artists and others now have to rely on the permission of copyright holders to make use of such works.
In my own field — film — the effects of the 1994 law have been palpable. Distributors of classic foreign films have seen their catalogs diminished. Students can no longer get copies of many films. Archivists have postponed the preservation of important films. And of course filmmakers have lost access to works of literature that they might have adapted and music that might have enhanced soundtracks.
The Supreme Court is scheduled to hear arguments today in Golan v. Holder, a case challenging the copyright provision of the 1994 act. There are many reasons the justices should conclude that Congress went too far in altering the copyright system.
For one thing, restoring the copyright of works in the public domain is a different and more profound act than the extension of copyright terms. By removing works from the public domain, Congress has destabilized it. If foreign works can have their copyrights restored, why not works made in the United States? Filmmakers, producers and others who regularly rely on the public domain will become wary of using it.
More important, for Hollywood and every other American cultural industry, access to a stable and growing public domain has been essential to innovation. Unfortunately, even representatives of the American film industry don’t always recognize this truth. In a friend of the court brief filed in the Supreme Court case, the Motion Picture Association of America applauds Congress for “reinforcing the United States’ position as a proponent of strong copyright protection throughout the world.” The M.P.A.A. contends that the expansion of copyright is good for its industry.
But history tells a different story. Filmmakers have consistently used public domain works to anchor artistic and technological innovation. In the 1930s, when Walt Disney decided to make one of the first feature-length animated films, he turned to the Brothers Grimm’s version of the tale of Snow White. When asked why he chose that story, Disney explained that “it was well known.” He understood that “Snow White” was a trusted property, and because he knew that at least the story and characters would be familiar to audiences, he could take an artistic risk with the form.
Disney is only the most famous example of a filmmaker who relied on the public domain to expand the art of film. Starting with Thomas Edison in 1910, filmmakers have adapted Lewis Carroll’s “Alice’s Adventures in Wonderland” in movies that have accompanied the transition to feature films, the establishment of the studios, the switch to sound, the introduction of color, the advent of television and the adoption of widescreen aspect ratios.
Most recently, Tim Burton’s 3-D reimagining of “Alice in Wonderland” became one of the 10 highest-grossing films in history amid an otherwise mixed public response to new 3-D technology.
Despite their official position in this case, Hollywood producers have long realized the value of the public domain, and they have taken steps to manage the use of the shared resource. The M.P.A.A. continues to maintain a registry in which its members can claim a limited, industry-designated right to public domain works. The registry allows filmmakers to draw from the cultural storehouse of stories and characters without fear of an immediate challenge from their closest competitors.
Because of Congress’s transformation of the copyright system, filmmakers and producers today do not have the same access to the public domain as their predecessors. Technical, artistic and industrial innovation are at risk. Let’s hope that the Supreme Court restores the public domain to full strength, for Hollywood’s sake.
Peter Decherney, an associate professor of film studies at the University of Pennsylvania, is the author of the forthcoming book “Hollywood’s Copyright Wars.”
A version of this op-ed appeared in print on October 5, 2011, on page A27 of the New York edition with the headline: Will Copyright Stifle Hollywood?.
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