Effort to Save "Orphan Works" Moves to Court

March 23, 2004

In Kahle v. Ashcroft, two archives ask the U.S. district court for the Northern District of California to find that a law that extended copyright terms unconditionally -- the Berne Convention Implementation Act (BCIA) -- is unconstitutional under the Free Speech Clause of the First Amendment, and that the BCIA and Copyright Term Extension Act (CTEA) together create an "effectively perpetual" term with respect to works first published after January 1, 1964 and before January 1, 1978, in violation of the Constitution's Progress Clause. The complaint asks the court for a declaratory judgement ruling, stating that copyright restrictions on orphaned works -- works whose copyright has not expired but which are no longer available -- violates the constitution.

From lessig blog:

Pundit watch: you’ll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress’s transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.

If the case were to prevail, Congress would have to reenact the Sonny Bono Act to protect non-orphaned works. Of course, there’d be more opposition now, so it’s not clear such a law would pass, but under Eldred, they’d be free to do so. Or, alternatively, Congress might moot the case by passing a law that effectively imposed a renewal requirement. Say, for example, the PDEA.

Slashdot dicusses.

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