Might does not make copyright

At Duke and elsewhere, the delicate balance between academic freedom and intellectual property ownership shapes the content and character of original research and creation. The Supreme Court, upholding a 1994 law that seeks to restore copyrights to works in the public domain, has recently upset that balance and threatens to deprive both the academic community and the public at large of access to a broad swathe of once publicly available art. The court’s decision in Golan v. Holder will precipitate the removal of millions of works by artists like Alfred Hitchcock, Pablo Picasso and Virginia Woolf—from the public domain, restrict scholars’ ability to conduct meaningful research and limit the University’s capacity to archive works and present them to community members.

Copyright restoration exacts a particularly high toll on scholars—such as art historians and literary theorists, who rely heavily on the public domain for research purposes—and imposes unfair limitations on their speech. Publishing a book on Picasso’s “Guernica,” for example, could become meaningfully more difficult and expensive. To employ copyrighted material for purposes not explicitly defined by the fair use exceptions in U.S. copyright law, scholars have to receive permission from copyright holders, which usually requires paying licensing fees. Although copyright protections serve an important and necessary function—namely promoting the creation of original work—restoring copyrights to work in the public domain only erects unnecessary hurdles to academic research and limits the amount and quality of artistic commentary.

In addition to reducing the pool of reasonably accessible material, the court’s decision may deter scholars from using work in the public domain for fear that they will be subject to licensing fees in the future. This could have a serious chilling effect on future research, causing some academics to abandon interesting and valuable projects and discouraging others from entering the field. The chilling of academic research hurts not only scholars, but the broader public. Older artistic pieces still possess meaning in a modern context, and in order for them to retain their social importance, they need to remain subjects of intellectual inquiry and debate.

The cost to students will take a more subtle, though equally significant, form. As more works acquire copyrights, the price of database access will increase. And, although Duke may be able to bear the financial burden for some time, price increases could manifest themselves in the form of tuition hikes or simply restricted access. Moreover, student performance groups may experience more difficulty and drama in putting on plays and concerts, and the amount of artistic commentary available to students will surely diminish.

Given that the court’s ruling could threaten Duke’s ability to function as a site of free inquiry and discussion, we implore the University to do everything in its power to keep previously public material available to students and faculty. This means, in the short term, bearing the costs of licensing copyright-restored work and, in general, expressing strong opposition to the court’s decision. Copyright restoration legislation represents a victory for corporate media interests at the expense of students and faculty, but, in light of the effectiveness of the recent Stop Online Piracy Act and Protect Intellectual Property Act protests, we feel confident that the entire Duke community can play a role in preventing further affronts to speech and artistic scholarship.