Archive for May 2009
Foreign Affairs As The New Copyright Law, Pt. 1: Trade Agenda
[Editor’s Note: This is the first of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Portions of this part were published previously as Dames, K. Matthew (2007). Trade Agreements as the New Copyright Law, Online, 31(2), 16-21.]
In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of “harmonization,” and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.
Traditional Path to Copyright Law
Just as every other federal law that is ultimately codified into the U.S. Code, this country’s official compendium of federal statutes, the development and ultimate passage of copyright laws happens according to a time-honored process. Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and the President signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is the public and permanent statutes arranged by topic or subject. (For a fuller discussion of the U.S. federal legislative process, please see Charles W. Johnson’s classic guide “How Our Laws Are Made.”)
The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the 1976 Act (as well as the predecessor Acts of 1909 and 1790) comes from the Copyright Clause of the U.S. Constitution. Art. 1, sec. 8. cl. 8 states “The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Congress is, has been, and always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003), “[The Court has] stressed … that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” But in recent years, Congress’ role in enacting copyright law legislation has diminished. In order to understand how this has occurred, it is instructive to go back to 1988, when the United States became a signatory to the Berne Convention.
Refuting Mark Helprin’s Views on Copyright
Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).
We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.
Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.
COPYCENSE 