The Evolution of Copyright: Golan v. Holder, or How Congress Took Your Share of the Public Domain and Gave It (Back) to Dead Foreigners

That’s right—it’s not enough that Uncle Sam grabs you by the ankles every April and shakes loose every last penny, button, and piece of lint that he can find—now he’s taken part of your share of the Public Domain. Have I dramatized this enough to keep you awake through the legal questions? Hm … we’ll see about that.

In brief, prior to the passage of the Uruguay Round Agreements Act in 1994, certain works, including symphonies by Sergei Prokofiev, Igor Stravinksy, and Dmitri Shostakovich; books by C.S. Lewis, Virginia Woolf, and H.G. Wells; films by Federico Fellini, Alfred Hitchcock, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso, were all part of the “Public Domain,” meaning that they did not enjoy copyright protection in the U.S. and were freely available for reproduction or other use to the general public. So who owns works in the Public Domain? I do. And you do. Ok, we all do.

In most cases, the absence of copyright protection for foreign works was because the U.S. did not have copyright treaties with the countries in which original copyright protection for the work was obtained. The problem was that, because we treated these foreign works as belonging to the Public Domain in the U.S., other countries treated U.S.-originated works as Public Domain in their own countries. As such, U.S. authors had no copyright protection in a small but significant portion of the world.

In 1994, Congress changed all that. The Uruguay Round Agreements Act granted copyright protection to those foreign works that were previously considered Public Domain on the theory that such would cause foreign countries to reciprocate and grant copyright protection to U.S. authors. And so, with one swift move, Congress took those foreign works previously owned by you and me and gave them back to their original (mostly dead) copyright owners. This too caused a problem: hundreds, if not thousands, of people had relied on these works as being in the Public Domain when they reproduced them, performed them, or used them to create what are known as derivative works.

Who would stand up to the might of Congress and the foreign interests? Who would represent the nameless masses from whom the works had been stolen? Why, those who stood to lose money, of course—the very parties that had come to rely on the Public Domain status of foreign works in performing or producing the same for money. The reliance parties, as they are referred to, challenged Congress’ action on two grounds: (1) that the Progress Clause of the U.S. Constitution precludes Congress from taking works out of the Public Domain; and (2) that the new restriction on use of works formerly in the Public Domain was an impermissible restriction on Free Speech.

The case was argued before the U.S. Supreme Court this very morning. From the transcript of the oral argument, it is obvious that certain Justices (Ginsberg and Sotomayor) favor the government’s position, while other Justices (Scalia and Breyer) favor the position of the Petitioners. Where the rest fall is anyone’s guess. The decision should issue later this term. Stay tuned to TLM for the exciting conclusion.

Now for a confession. After all the dramatization above, I think the government has the better argument here. The Progress Clause of the Constitution contains no language that would prevent Congress from taking works out of the Public Domain (indeed, it did so upon the creation of the first Copyright Act). And it seems evident to me that Congress carefully weighed the public benefits of joining the international copyright community in determining to pick our collective pockets of those works formerly in the Public Domain. I’m upset that they robbed me (and without compensation—though that’s a topic for another day), but I understand why and how they did so. So there.

Did anyone other than the legal community even realize that this fight was going on? Does anyone have an opinion here? Are you all asleep? I thought so.

The Book as Sacred Object, and Recollections of the Paris Codex

So, this morning I received a nice, big box of very old books on Spanish and Mexican history that I had purchased on the cheap at auction several months back.  I already have a fairly large collection of books on the Maya of Guatemala and the Yucatan, and my hope was that I would find a couple of useful--or at least intriguing--volumes in what I otherwise understood to be a grab bag of dusty, old history books.  I was not disappointed. 

But even more than the useful or intriguing knowledge that may be contained within their pages, I found myself relishing the look and feel and musty old smell of each and every volume that I pulled from among the styrofoam packing material and unwrapped from its tissue paper.  And I realized once again that, despite all the support for ebooks and audiobooks that can be found in these posts, there is nothing quite like a good old book to fire my imagination.  For me, as for most of you I would suspect, books are sacred objects, and I find myself caring more about them than I do about even my most important and useful possessions.  Every time that I stumble on a worthwhile old tome, I want to take it in like a stray kitten and nurse it back to health or at least put it to the use for which it was intended.  I know that I'm not alone in this appreciation.

The whole experience got me thinking about the most significant book that I've ever held in my own two hands--the Paris Codex.  For the uninitiated--and I'm perfectly willing to admit that the field is obscure--the Paris Codex is one of four surviving manuscripts written by the Maya at the time of the Spanish Conquest.  That there are only four may be blamed as much on Spanish zealotry as the ravages of time--they famously burned thousands of such manuscripts in their less than subtle efforts at conversion.  And only one, known as the Grolier Codex, remains in the Americas today.  The rest are scattered about Europe in Madrid, Dresden, and Paris, where they are known less than creatively as the Madrid, Dresden, and Paris Codices.

Each provides an example of the well-developed written language of the Maya, the only such writing system that originated in the Americas and, arguably, one of only three written languages that developed organically  (i.e. was not borrowed or adapted from some other civilization) throughout the entire world.  The written language of the Maya died out in the generations following the Spanish Conquest, though amazing strides have been made in the last several decades with respect to the understanding and preservation of the language, which can still be found not only in the codices, but on stelae and temples throughout Central America and Mexico.

The Paris Codex is kept in a sealed box at the Bibliotheque Nationale in Paris, and is not generally accessible to the public.  I was able to handle it only after a lengthy formal request process during which I explained repeatedly that I was working on a book in which the Paris Codex figured prominently.  By sheer persistence, I wore them down.  And I was even able to sneak my wife in as well as my "translator" on the day of our viewing.

To hold a five hundred year-old book from a "lost" civilization that is written in a language that no longer exists is absolutely indescribable.  I remember carefully paging through the codex from beginning to end over the course of several hours, its pages still bright and beautiful, though delicate and fading in spots.  And I couldn't help but think of the author, seated cross-legged, paintbrush in hand, half a century behind me, and born of a civilization that owed nothing to my own.  I might as well have been reading the marks of an alien world light years away.  But one thing I knew that I shared with him was an appreciation of the written word and a love of the books that contain it.  In many ways, I think it is the written language that allows us to finally transcend time and place and to sympathize with those around us--and isn't that the very thing that makes us human?

I've gone on far too long--I get wrapped up in books, what can I say?  But what about the rest of you?  Do you consider any books sacred?  Do you remember a particular experience with a particular book above all others?  And what do you think it is about the written word that transfixes and binds us?   

       

     

A Holiday Interlude: Immoveable Feast, A Paris Christmas by John Baxter

Cookies, anyone?  They're fresh out of the oven.  How about some egg nog?  We're flavoring it with Ron Zacapa, which our wife assures us is the finest rum in the world.  When you're settled in, please pull a chair up to the fire.  All set?  Good.  

We bring you a bit of a holiday treat today, that being our brief review of Immoveable Feast, A Paris Christmas by John Baxter.  Now, we here at TLM love Christmas--and we love Paris--and we would love to spend Christmas in Paris.  But to say that we love Immoveable Feast is probably going a bit too far.  Not that it's an unenjoyable work--in fact, we quite enjoyed it--but we found it difficult to find substance in a series of essays about yet another foreigner bumbling his way through the field of French haute cuisine after reading Joyce and Melville for the last two months.  And now we can't believe that we just wrote that--seriously, have you ever read a more pretentious statement?  And at Christmas too.  Shame on us.  If anyone deserves coal this Christmas, it's us.  Maybe we should stop writing in the third person ...  

Let's start this again.  Immoveable Feast is the year-long story of Australian author John Baxter as he scours the French countryside to prove his culinary self-worth to his French wife's traditional family by cooking them a traditional French Christmas feast.  I enjoyed the book at a very superficial level, which is where it deserves to be examined.  Like my grandmother's sprinkled, tree-shaped Christmas cookies, Immoveable Feast is light and sugary and completely devoid of nutritious substance.  And just like a nice round Christmas fruit cake, Immoveable Feast is the type of book that, if you don't pick it up during the holiday season, is destined to sit--increasingly brick-like and forgotten--in the back of your cupboards until it sparks to life and consumes you you get around to throwing it out. 

But if you do pick up Immoveable Feast during the holidays, like that cute family that makes the rounds singing Christmas carols every year, you will very likely enjoy it for at least an hour or two before it begins to grate on you.  Seriously, though, the prose is light and easy, the humor plentiful, and the book is strewn with illustrations that give it an added Christmas appeal.  And the descriptions of the touch, taste, and smell of traditional French Christmas dishes, as well as their ingredients, are genuinely mouth-watering.  All kidding aside, I did enjoy it and I do recommend it.

So, what are your Christmas (or holiday) favorites?  An extra cookie for anyone that comments without mentioning Dickens.  

The Literate Man Is the New Haight-Ashbury, and (correspondingly) a Review of the Doors of Perception (Aldous Huxley)

Today is a day for rebellion and counterculture at The Literate Man, a day for disavowing the conformist decisions of the past and opening one’s mind to the essential “Is-ness” of all things and the limitless possibilities that the world has to offer to those that surrender to it. And it is in this spirit that I have decided to throw caution to the wind and abandon The Literate Man’s tried and true ten-point rating system. Ok, so maybe it’s not a rebellion per se, and maybe it has nothing at all to do with 60’s counterculture, but I have been paying attention to those voices that I most respect in the book blogosphere (you know who you are) and I can see the wisdom of moving off of a subjective rating system in favor of a more participatory conversation about the book or literary concept under discussion.

And how could I judge The Doors of Perception anyway when its basic message is that, in judging, in focusing our minds on the individual and particular aspects of a thing, we fail to see its essential, holistic nature. I really shouldn’t even be describing it as a book for, in doing so, I fail to appreciate the artistry of its cover design, the symmetry of the representational symbols within, the interwoven pulp of the page, and the elements, both natural and artificial, that have combined to make it what it is. Or in Huxley’s words:

--
I was seeing what Adam had seen on the morning of his creation—the miracle, moment by moment, of naked existence.

“Is it agreeable?” somebody asked. (During this part of the experiment, all conversations were recorded on a dictating machine, and it has been possible for me to refresh my memory of what was said.)

“Neither agreeable nor disagreeable,” I answered. “It just is.”

Istigkeit—wasn’t that the word Meister Eckhart liked to use? “Is-ness.” The Being of Platonic philosophy—except that Plato seems to have made the enormous, the grotesque mistake of separating Being from becoming and identifying it with the mathematical abstraction of the Idea. He could never, poor fellow, have seen a bunch of flowers shining with their own inner light and all but quivering under the pressure of the significance with which they were charged; could never have perceived that what rose and iris and carnation so intensely signified was nothing more, and nothing less, than what they were—a transience that was yet eternal life, a perpetual perishing that was at the same time pure Being, a bundle of minute, unique particulars in which, by some unspeakable and yet self-evident paradox, was to be seen the divine source of all existence.
--

Far out ... I know.

The Doors is not so much a book as an extended essay, which was coupled in my edition with Heaven and Hell, another extended essay, both of which treat the subject of the expanded psychological states that may be induced by the taking of mescaline. Mescaline, for the uninitiated, is the active ingredient in peyote and several other species of other hallucinogenic cacti. The Doors is essentially a chronology of events as understood and recorded by Huxley after having ingested mescaline at his home in West Hollywood in 1952. Heaven and Hell explores the cultural development of views of the afterlife as potentially influenced by drug-induced visions around the world.

Actually, the essays are surprisingly enjoyable and not just in the hippie burnout way that I’ve presented them here. As anyone who has read Brave New World will attest, Huxley is uber-intelligent, and he makes a very compelling case for taking a fresh new look at the world in which we live by removing the biological blinders that evolution and the survival instinct have saddled us with in order to ensure our continuance as a species. That he removes those blinders by means of the ingestion of a psychoactive agent (and spends much of the essay contemplating the folds of a skirt) is almost secondary. His real message is that we need to slow down, look around us, bond with the expressions of existence that we rush past every day, and come to a broader understanding of our own place within the universe.

Now who can argue with that?