Wednesday, July 04, 2007

4th Circuit Rules Copyright is Not a Constitutional Right

The US Court of Appeals for the 4th Circuit ruled that copyright is not a constitutional right in the case Darden v. Peters, on last May. While the ruling referred to the standards of review in judicial reviews of decisions of the US Copyright Office in respect registration of copyrights, the opinion affects more than standards of review on challenges to the Copyright Office.
Marybeth Peter, the Register of Copyright, was sued by William Darden who attempted to register copyrights in a web site that assists consumers in locating real estate appraisers and in digital interactive maps., when the Copyright Office refused the registration alleging that the works were not copyrightable subject matter due to lacking sufficient originality because they were based upon U.S. Census maps. The issue became very relevant to copyright law because the question of applying the very low standard of abuse of discretion (which makes reversal of a government agency difficult), or the higher de novo review standard, leads onto the question of whether or not the review concerns a "constitutional right", in this case copyright.
The findings of the court, that copyright is not a constitutional right, is consistent with precedent of the US Supreme Court on the matter, but not necessarily with the letter of the US Constitution or the treatment of other rights enshrined in the Constitution. Although Article I, Section 8, of the US Constitution provides that the Congress has the right 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", the court found that "Congress [was] under no mandate from this clause, however, to provide copyright protection” and that it was “clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress [was] empowered to provide copyright protection”. It went further by saying that “Copyright [was] solely a creature of statute; whatever rights and remedies exist[ed] do so only because Congress provided them”. It would be too long to enumerate all of them, but in most cases the US Constitution, through its amendments, provides rights by granting Congress with the power to create a system of rights, which are then recognized by the Supreme Court.
A system of rights is important because it tends to limit the capacity of majorities or organized interests to use the government to damage individuals protected by those rights. However, when an area of activity is subject to uncontrolled regulation by the Congress, those majorities and organized interests can take advantage and diminish the rights of minorities or individuals. Authors and inventors are generally disorganized in the political process, which contrast with publishers and distributors of creative works, such as the movie studios, record companies, book publishers, broadcasters, and software companies, who tend to be well organized and financed, and hire the most effective lobbyists, and while they use the “poor author” when need arises, their interests tend to diverge from those of creators.

Following the present opinion, and other recent cases, authors and inventors have no recourse to the Constitution when the US Congress limits the scope of their copyrights, or their ability to enforce them or when the Copyright Office or the USPTO charge exorbitant fees for registration or corporations force unfair clauses upon creators and while in principle looks like a good news to restore balance in the IP arena, it actually opens the doors for more abuse from the IP rights holders (not necessarily or usually the authors or inventors) and more deference to the IP lobby by the US Congress...

No comments: