 And putting together the law school faculty, the hope was to find some individuals who were superstars as teachers, faculty were superstars as scholars, some of you superstars as colleagues. Really could we hope that we find one person who was all of those things, but that individual was very much Tony Reis. He is a superstars scholar, one of the most renowned scholars in the field of intellectual property and copyright law in the country. As many of you who are students know, he's truly a superstar in the classroom as well. He's a renowned teacher, taxist, stanchard, NYU, and now here at UCI. And as all of the faculty can tell you, he's a superstar as a colleague. There's nothing that I've asked him to do in the last couple of years that he said no to. He's done every task to touch, yes, of this, and with great excellence. I think I speak for everyone in the faculty in saying how much he's always a calm and a wise voice, no matter what the issue that we're discussing. Tony comes to us, incredible credentials. He's a graduate of D'Alcala, he's in law school. He clerked for Judge Betty Fletcher on the United States Court of Appeals for the Ninth Circuit. He's an associate at Morris and in Forster, where he still maintains an up-counsel relationship. Then he became a professor at the University of Texas Law School. He's a chair professor there who's also one of your products of visitor at Stanford and NYU Law School. Now one of our traditions, unlike some law schools, is we actually give our professors a chair when they become a chair professor. What makes us unique, I think, among all law schools is we give them a rocking chair. So what I'd like to do is ask Tony to join me and valide his chair and then turn it over to him to deliver this lecture. He's being a Chancellor's Professor of Law at the University of California, Irvine School of Law. Thank you, Irwin, for that embarrassingly generous introduction. It's an honor to stand here today in a classroom that didn't exist a year ago, delivering a lecture for a position that didn't exist two to five years ago. And I'd like to start by thanking you, Irwin, for all you've done to make that possible for me and for so many others at the law school. And I'd like to thank all of you today for taking the time to attend at what is I know and especially busy season for the law school. As some of you know, I had a good deal of trouble deciding what to talk about today. And I'll admit that I find the prospect of giving a lecture on copyright intimidating. This is in part because of a small book entitled An Unhurried View of Copyright by then Harvard Law Professor Benjamin Kaplan. Now, those of you who aren't steeped in copyright lore may be more familiar with Kaplan as one of the principal architects of the Nuremberg Trials, or as a justice on the Massachusetts Supreme Judicial Court. But for me, Kaplan will always be a giant of copyright law. I never met him, although I've been fortunate to have many other academic mentors in the field of copyright. But when Professor Kaplan passed away last August at age 99, I felt the loss to the copyright world very keenly. As because in 1966, Kaplan gave the Carpentier Lectures at Columbia Law School published the following year as an unhurried view of copyright. Although the book is only about 125 pages long, it's a magnificent tour through copyright history, doctrine, and policy, and I highly recommend it to anybody who's interested in the area. And if it's been said that the European philosophical tradition consists of a series of footnotes to Plato, I would say that much of modern American copyright scholarship consists of a series of footnotes to Kaplan. So you can see why I found the idea of a general interest lecture on copyright somewhat daunting. So my next thought of giving a lecture on my most current research project, an analysis of 8,000 statutory termination notices in the copyright office over the last 30 years, but I decided that despite the colorful pie charts and bar grams that that would have allowed me to show, the topic might not be sufficiently interesting for those in the audience, and I'm sure this describes very few of you who are not true copyright wall. But I then noticed that today is actually World Intellectual Property Day, designated by the World Intellectual Property Organization, to quote, celebrate these significant contributions of authors and other creators to our global society. And this week, according to the American Library Association and the Society of American Archivists, is National Preservation Week, designed to call attention to the need to preserve our cultural heritage. So I decided to talk about the intersection of copyright and the preservation of creative works for the future, hence the title of my talk, What Copyright Oaves the Future. It may seem unusual to talk about copyright and future generations in the same breath, but copyright already purports to restrain future behavior. Once an author creates a work today, copyright law says that for at least 70 years, and often more like 100 or more years, most use of that work will require the copyright owner's permission. And since then, copyright law makes a promise to future generations. The law says that if an author today creates a work, a book, an article, a blog post, a song, a film, a play, a photograph, a record, a dance, a painting, then sometime, sometime a long way down the road, that work will pass out of copyright protection. At that point in time, the inhabitants of the future will be able, without seeking anyone's permission, to copy the work, or adapt it, or sell it, or use it in any other way that copyright had restricted up until then. But that promise is at best illusory, and at worst fraudulent, if by the time a work's copyright expires, the work no longer exists. The copyright's restraints on what can legally be done with the work may come to an end, but the copyright expiration will have no practical effect. On the day after the copyright expires, no citizen of the future will in fact be able to use the now public domain work in any way that the law would then allow that it wouldn't have allowed the day before. So my argument is that at a minimum, copyright law and the copyright system will allow the future and obligation to do whatever they can to try and help ensure that many works of authorship survive for future audiences to read, to listen to, to watch. And we can hope to learn from and enjoy. So I want to explore this subject in a bit more detail in four steps. First, I want to look at why preserving creative works is important and valuable. Next, I want to talk about the ways in which copyright law has traditionally encouraged or not encouraged the preservation of copyrighted works. Third, I want to look at how digital technology and computer networks such as the Internet pose new challenges for preserving creative works. And then finally, I'll say a few words about how we might rethink and revise copyright law to respond to those digital challenges. So let me begin by talking about the importance and value of preserving creative works for the future. Preservation is obviously of great interest and value to historians of all stripes, social, cultural, political, legal, literary, art, and otherwise. The more material they have to work with, the more productive future historians can be in trying to understand their past, which is obviously including our present. But preservation also has value for the artists and creators of the future. I'll try to use some local examples. So one needn't look much further down the road than to Anaheim and see the Disney characters based on Germanic children's stories collected by the brother's rim in order to realize that works of the past may be important for creating new works, including commercially valuable new works. And often, new works build on now obscure older works. So take, for example, Martin Scorsese's 2002 film, Gangs of New York, which you may not know, was based on Herbert Asbury's long out-of-print 1927 book, The Gangs of New York. And at the time the movie came out, The New York Times reported, for years the book was available only in frift shops or on guest room night tables in the occasional country cottage bookshelf. That's where Martin Scorsese found it, one icy New Year's Eve in his 20s when he was house sitting on Long Island. He read it and became obsessed with making a film based on the book and eventually 30 or so years later, he did. Great scientists, of course, have said that they can see a little further by standing on the shoulders of giants, those whose work they build on. But I think the maxim applies in the realm of artistic creation as well. When an author draws on what has come before, then perhaps the author and her audience cannot only see a little further but understand and feel a little deeper. So just as we have benefited from authors creating new works that draw upon older works that have survived, surely future audiences will thank us if works that are created today survive for 50 or 100 years or longer and serve as the basis for authors in those generations to draw on. Perhaps most importantly though, preserving creative works for the future will also benefit the readers, viewers, and listeners of the future. My copyright colleague at Michigan, Jessica Litman, often reminds us that readers, viewers, and listeners are essential to the purpose of copyright. So in one of her articles she writes, quote, the most important reason we encourage creators to make and distributors to disseminate works of authorship is so that people will read the books, listen to the music, look at the art, and watch the movies. We want readers, listeners, and viewers to enjoy the works, learn from them, interact with them, and communicate with one another about them. That's the way in which copyright law promotes the progress of science and its constitutional purpose. It seems to me that this is true not only of readers, viewers, and listeners at the time of work is created, but also into the future as well. It's hardly likely that everything authored today is of interest to a large number of people 200 years from now. But then again, much of that work is not of interest to a large number of people today. But some of those works will surely be of interest to some future audience. Think about it for yourself. Is there not a book, a song, a play, or a movie from 50 years ago, 100 years ago, 200 years ago? Probably not a movie. Encountered and enjoyed even though it's not widely known and appreciated today. And in passing on a creative legacy to future audiences, we ought to be generous enough to those audiences not simply to impose our contemporary tastes and prejudices on them. Works that aren't appreciated today may be valued more highly by future audiences. Tastes may change. Some creators may be ahead of their time. So a work that isn't much appreciated at the time when it's created may appeal more strongly to the sensibilities of a later generation. Herman Melville's Moby Dick and Kate Chopin's The Awakening are examples from our own past. Critics in the public received these books unfavorably when they were first published. The books languished in obscurity for many years and only later did they come to be regarded as important works. Perhaps to the dismay of some of you forced to read Moby Dick next year will in high school or college. And of course works created by authors who belong to marginalized groups may not find a wide audience or commercial success when they're published, but in a later era those works may be valuable documents for understanding the marginalization and oppression that the authors and others felt and how they experienced it, survived and pushed forward. So here you can think of the gay pulp fiction novels of the 50s and 60s which I think have a completely different resonance when read today than when first published. So overall I think we would not be entirely happy if, for example, the only 19th century English language novels that remained available to us today were the ones that were most popular in their own day. I imagine that some of today's creators may similarly find future audiences more receptive to their work than current audiences. Indeed, I suspect that many of today's creators certainly hope that that will happen. So keeping creative works alive will give future audiences a broad range of authorship to choose from in their reading, viewing and listening. Now having argued for the importance of preserving creative works for the future, let me turn now to the question of how copyright law has dealt with the issue of preservation. What has it done to foster or not foster preservation? It might seem that the most important mechanism by which copyright law encourages preservation is by granting copyright owners exclusive rights in their works. After all, the opportunity to try and earn financial rewards by exploiting a work would certainly seem to give copyright owners every incentive to preserve their works into the future. Unfortunately, we have lots of examples demonstrating that this incentive is not always... Let's start with a local example. The early decades of the film industry provide an example. Many film producers saw little reason to keep their movies for future release. After all, hundreds of new feature films were made every year. There was little need to reissue older films, and the cost of properly and safely storing movies printed on volatile nitrate film stock was quite high, whereas immediate money could be made by reclaiming the silver from the film. So it might have been entirely economically rational for a film studio not to maintain copies of its films in the teens and the twenties. But as a result, it's estimated that 80% of the films made in the U.S. during the silent era no longer exist here. And of American features produced before 1950, only about half still exist. The early decades of television offer another example. Live television broadcasts that were never recorded are obviously entirely lost, just as live, unrecorded performances of plays, music and dance can't be seen again after the curtain falls. But even once television was being recorded, that didn't ensure that the programs would survive, because networks often erased recorded shows. Newscasts, sports events, daytime programs, such as soap operas and game shows, and late night programming such as the Tonight Show were particularly vulnerable. So TV's historical record has yawning gaps despite whatever incentives might have existed for the copyright owners to preserve their work. And this is true not only for U.S. television, a similar fate that fell to programming at the BBC and other British broadcasters. The confluence of a number of issues, including contracts with actors unions, governing what could be rerun, and the cost of videotapes apparently led to a policy at the BBC until the late 1970s of wiping tapes of recorded shows. So that is erasing them or recording new shows over them. The book that details this history of British television has the evocative title, Missing, Believe White. Which is what happened to the list of British television. So Dr. Who fans in the audience, and I have an unreliable authority that there are at least a few, will already be aware that many episodes of that series from that era are missing. But fewer of you may realize that Bob Dylan's first acting appearance was in a 1963 DVC drama called The Mad House on Castle Street. But you can't watch that performance today because it was wiped in 1968. And Monty Python fans might have found it quite difficult to always look on the bright side of life if a close call in the 1970s had turned out differently. According to Python Terry Jones, the DVC was preparing to wipe the tapes of the first series of Monty Python's flying circus when Jones found out about it and managed to buy the tapes and preserve them. Now perhaps it's not a coincidence that some of these examples come from the years in which a new medium, motion pictures, television, is just developing. When a new medium is in its infancy, it may not be clear to anyone whether that medium is more than just a flash in the pan. So most people involved in the industry may not see much point in worrying about preserving their creations for the future when they're not sure whether or not they'll be out of a job before long. But even after an industry or a medium is well established, copyright protection and the potential for return from exploiting a copyrighted work doesn't always provide enough incentive for preservation. For example, of the MGM Music Library shows. Many of you will know that the movie musical is perhaps one of the brightest spots in the history of the MGM film studio. Movies such as The Wizard of Oz, Singin' in the Rain, American in Paris, High Society, Silk Stockings represented the work of some of the days greatest composers, lyricists, singers, actors and dancers, and many were both commercially and critically successful. But the full orchestral scores for those musicals no longer exist. But in the 1940s, the MGM Music Library was one of the largest music collections in the country. It was full of material from the movie musicals, but it also included material from lots of other MGM movies. For example, the full scores to the studios Tom and Jerry cartoons. In the 1960s, though, the studio wanted to cut storage costs for its music library and perhaps turn the building into a parking lot. So it dumped the music library, film scores, recordings and all, into a landfill that became, depending on which source you consult, a golf course or the 405 freeway. Because of the loss of the MGM film library, a music library, when British conductor John Wilson wanted to perform the music from classic MGM musicals with a full orchestra, he had to reconstruct the scores. Working with whatever short scores or individual parts survive, he listens intensively to the soundtracks and recreates the orchestration. That's right. He listens to every single bar of the scores and laboriously writes down every note he hears for every instrument. A three-minute song can take him a week to reconstruct. But at least the existing copies of the films and the soundtracks make it possible to reconstruct these scores. And the audience appears to be grateful. His concerts of film music, including at the proms, annually in London, have been enormously popular. And while MGM's massacre of its musical heritage spurred substantial activity in the world of film music preservation, is by no means a singular event. Some of you may know Michael Feinstein, who not only performs 20th century American pop music but also works to preserve it. And he tells a story about how in 1985 he learned that Columbia Pictures was discarding some of its musical collection. He visited the studios in Burbank, not sure that's a lovely downtown Burbank or somewhere else, and found a librarian separating film scores into two piles. The ones that were for movies that got at least three stars in the Leonard Matlin guidebook were being saved. The ones for movies that got fewer than three stars were being discarded. And to think back to the BBC television example, history may be repeating itself. Earlier this year, the BBC's online division announced that it would shudder over 170 websites, many associated with TV programs that have now gone off the air. Given the BBC's experience with wiping its own television history, I think we can only hope that the corporation will at least retain the material from these sites even after it takes them offline. But I think history gives us no reason to be optimistic. So simply giving copyright owners exclusive rights in their works doesn't necessarily seem to have provided enough incentive to preserve the works for the future. So what else has copyright done to encourage the preservation of creative works? For the most part, copyright hasn't explicitly addressed preservation. The first real explicit recognition came in 1978 as part of what oddly those of us in the field still refer to as the new copyright law. Section 108 of 1976 Act imposes some limits on copyright owners' rights in favor of some preservation activities by libraries and archives. The limits are relatively narrow, but they do provide some breathing room for preservation. But even without being designed to do so, copyright law has traditionally fostered preservation in at least two important ways. Perhaps most significantly, copyright law has promoted the production and circulation of copies of copyrighted works. The most fundamental rights reserved to the copyright owner have been the rights to mate and sell copies, physical embodiments of her work, and that's traditionally the way that many, many copyrighted works have been exploited. And of course, once the copyright owner makes and sells copies of her work, copyright law facilitates the continued circulation of those copies by not allowing the copyright owner to control the resale, rental, or lending of those copies. This has allowed libraries to flourish. They buy copies and lend them. It's allowed rental stores to exist. Today, of course, we think of renting movies or audio books, but at times in our past, book rentals were also common. And copyright law has allowed second-hand markets, such as used bookstores and used record stores, that circulate copies of works once the current owner no longer wants them. Now, you may be asking how does promoting the creation and circulation of copies promote preservation? Well, it turns out that distributing a work in multiple copies to a variety of owners can be one of the best mechanisms to help ensure that a work will survive into the future. Think of it this way. One author has described the question of a work survival as a race. It's a race between a copy of the author's work on the one hand and pursuing enemies, such as war, natural disaster, indifference, and intolerance on the other hand. And as long as at least one copy stays ahead in the race, the author's creation survives and can be appreciated. So the more copies that are running the race, the more chances the work has to win. Thomas Jefferson stated this principle very eloquently in 1791 when he argued for preserving historical and state papers quote, not by vaults and locks, but by such a multiplication of copies as shall place them beyond the reach of accident. Or if you wanted pithier, one current preservation project has summed up the principle as lots of copies keeps stuff safe. We can see this in the history of the works that have come down to us from the past. Many works from very long ago exist today because of a single copy. Often one of many copies that were once made, but a single copy survived long enough to be rediscovered and once printing technology became widely available circulated in large numbers. So in a book called The Future of the Past, Alexander still wrote that the works of authors such as Homer and Virgil survived intact because of their enduring popularity and the multiple copies that were made at different times. But many of the works that we regard as fixtures of our culture, including Plato, were lost for centuries and are known to us only because of a copy or two that turned up in medieval monasteries or in the collections of Arab scholars. Some works of endowed greatness did not survive at all. Sophocles is known to have written some 120 plays of which we possess only. Now, the operation of this lots of copies keeps stuff safe principle is easy to understand. Any particular copy of an author's work is subject to threats to its survival, the ravages of time and use, environmental conditions, as well as natural and man-made disasters. The more copies that exist, the more likely it is that one of them will survive. So, imagine that any single copy of a work has a 1 in 100 chance of being destroyed each year. Just pick the number out of the A. But if only one copy of the work exists, then at the end of 200 years the chance that that one copy will survive is only 13 percent. On the other hand, if a hundred copies of the work exists, just a hundred, then at the end of 200 years the chance that at least one of those copies will survive is greater than 99 percent. So, lots of copies really does keep stuff creative works safe. And this preservation effect is probably greater than the hypothetical numbers alone would suggest. This is because if copies are widely distributed, many copies will be held in different locations and under different conditions and will be subject to different risks. Some, I'm sorry to say, will be in seismically active zones subject to earthquakes, but others won't. Some will be in hurricane prone areas subject to flood, others will not. Some will be kept in high humidity, others at low humidity, some at high temperatures, others at low temperatures. Some, like the thousands of books in Magnus Hirschfeld's Institute for Sexual Research in Berlin that were destroyed in May 1933 as part of the Nazi campaign to burn un-German books will be kept in countries where intolerance leads to destruction. Others will stand on shelves in nations less disturbed by such outbreaks. So the diversity of conditions under which copies are held will likely help increase the chances that a copy will survive. And again, we see this in the works from long ago that have survived to our day. The literary works that have come down to us, one historian tells us, derived not from the great centers of learning but from marginal locations such as convents and scattered private copies. After all, the great collections of books in the centers of learning, the Fable Library of Alexandria, the collections in Rome and Constantinople were often in not just centers of learning, but centers of power. And centers of power are usually targets when struggles for power break out. So the great concentrations of books in centers of learning are often at risk, greatest risk of destruction. And this is hardly only a Western phenomenon. In China, during the two centuries before and after the start of the common era, at least five major important libraries took place in imperial capitals or important cities. As one Chinese author explained, we find repeatedly that no sooner was a national collection built up than it was partly destroyed or scattered, only to be recovered and restored in succeeding dynasties, although in the process many works were lost beyond the hope of recovery. Yet, again, in out-of-the-way places in ancient China, some copies survived. Some of you know that I spent my first years after college in the city of Changsha, the capital of China's Hunan province, and certainly not an imperial capital or major center of power in ancient times. But in the early 1970s three tombs of what we might call noble personages buried in the second century BCE were discovered near Changsha at a site called Ma Longui. Two of those tombs had been undisturbed for over two millennia, and one of them contained silk manuscripts which proved, at the time, to be the earliest known manuscripts of the Chinese classics, the Yi Qing and the Daotijing. Indeed, the Ma Longui manuscript of the Yi Qing is more than 300 years older than any other known to exist at the time of its discovery. Suspected it owes much of its existence to the fact that Changsha was a small out-of-the-way provincial capital. But this wide dispersal of copies as an effective means of preservation isn't just an explanation for the survival of ancient works down to our time. The principle plays out today as well. So to illustrate, let me offer a tale of the Yukon, not a tale of Sergeant Preston and his Wonder Dog King, instead a tale of a place called Dawson City. The Klondike Gold Rush that began in 1896 gave birth to a boom town called Dawson, which swelled to 40,000 residents and became the capital of the new Yukon territory. One of those residents, by the way, was Jack London, who featured Dawson in the Call of the Wild, so some of you may have more acquaintance with Dawson than you realize. When the Gold Rush came to a quick end, Dawson's population plummeted, but the city remained and moving pictures remained as one of the entertainments for the inhabitants, including at the town's Orpheum Theatre. Now, the movies had made their way to Dawson by traveling from town to town, being shown at a cinema in each town and then shipped on to the next. But Dawson was at the end of this particular geographic distribution chain. Ordinarily, a film print that had circulated all the way through the chain would be returned to the studio or the distributor. But evidently, the studios weren't willing to bear the expense of shipping the heavy cans of film back almost from the Arctic Circle. So the film distributors asked that the prints be held in the Dawson City branch of the Canadian Bank of Commerce. Now, Dawson City not only had a cinema, it also had a swimming pool. After all, the average high temperature in July is 73 degrees. But in 1929, the swimming pool was filled in to make way for what seems a more weather-appropriate sports facility, yes, a hockey rink. And someone decided that the ideal material to fill in the pool was the hundreds of reels of film that had accumulated at the bank. So into the pool and under the hockey rink they all went to and there they stayed until 1978. That year, a construction crew broke ground on a vacant lot where a recreation center was going to be built. And they uncovered a few reels of film. Now, luckily at that point they called in historians and archivists and once the digging was through over 400 salvageable reels of film were excavated in Dawson City. You might be surprised to find that films buried for nearly 50 years had survived. But early films like the ones shown in Dawson City are, as I mentioned before, printed on nitrate film. Nitrate film is highly flammable which is why there were lots of movie cinema fires in the early days. And it also gradually decomposes. Turns out that the only known retardance of that deterioration is storage at low temperatures. In Hollywood, of course, this had to be done if it was done at all at great expense in temperature-controlled warehouses. In Dawson City, the same effect was achieved unintentionally by simply burying the films in the permafrost. As a result, many of the buried films could with a good deal of restoration work be saved. The salvaged movies are mostly Hollywood films including serials, newsreels and featured films. And when they were discovered the majority of those films had been considered lost. No other remaining copy was known to exist. So these no longer lost movies include a 1917 Harold Lloyd film as well as the only film appearance of the renowned stage actress Lillian Russell starring opposite Lionel Barrymore. Other names in these films that might sound familiar include Juan Cheney, Douglas Fairbanks and on the directorial side, Max Sennett and D.W. Griffin. Indeed, the Dawson Swing Pool also preserved a copy of Samuel Goldwyn's first independent production which seems rather ironic since his successors at Metro Goldwyn Mayer would be the ones to consign the MGM Music Library to the landfill 40 years later. Some of you may remember Kathy Bates' character's line from the movie Dolores Claiborne in which she tells Dolores an accident can be an unhappy woman's best friend. Well, a geographic accident may be one of a film preservationist's best friends because Dawson City, UConn turns out not to be the only far away place where long lost films have been found. A few months ago Gosvilma Fung the Russian Federation's main film archive donated to the Library of Congress copies of 10 previously lost U.S. silent films and a gift of up to 200 old U.S. films that apparently now exist only in a copy in the Russian archive where they ended up after being shown in Russian cinema. The first set returned included the Arab starring Ramon Navarro and filmed on location in Algiers and a 1923 film by Victor Fleming later known as the Academy Award-winning director of the Wizard of Oz and Gone with the Wind. And last year, 75 U.S. silent films were found in the New Zealand film archive. Again, almost all of which are thought to survive nowhere else including one of the few silent films by director John Ford and Clara Bowes first Hollywood feature. Now, by now you may be thinking that the far-flung distribution of copies of creative works has only helped to keep safe American films that weren't properly cared for in their own land. But the principle turns out to be more universal. A celebrated case last year involved Fritz Lang's 1927 German landmark film Metropolis which we can thank for influencing such later films as Blade Runner and Star Wars. Shortly after the movie's unsuccessful premiere it was withdrawn and about an hour was cut out of the film. This resulted in what one critic called an over-simplification of the plot the disappearance of key scenes and the sidelining of significant characters. But one person apparently liked the movie at its premiere in Berlin and he happened to be a visiting Argentine film distributor who immediately purchased rights to the film and took a print back with him in his luggage to Argentina and you can guess the rest of the story. It eventually entered a local film critics collection and then ended up in the Museum of Cinema in Buenos Aires where it was rediscovered in 2008 and has now been used to create a restored version of Fritz Lang's original cut where we can now understand what happened to these key scenes and the significant characters who didn't make any sense in the cut. And in my final example here the US at last gets to play the role of heroic muscular or depending on your point of view packraft. So you'll recall that the BBC routinely wiped many of its recordings of television programs well into the 1970s. Luckily the Library of Congress recently discovered 68 rare recordings of British television dramas produced between 1957 and 1970. Spoiler alert the 1963 Bob Dylan drama is not among them. But the shows have been imported to the US for broadcast on the predecessor of PBS and then were donated to the Library of Congress by that network. They feature actors such as John Gilgut, Maggie Smith, Sean Connery, Peggy Ashcroft and Susanna York in plays by people such as Shakespeare, Chekhov, Gibson and Sapa. So the creation and circulation of copies of works has been an important way in which copyright law has preserved created works for the future. The other important way copyright has done this is that it hasn't interfered much with private copyright. Now there have been long academic debates among copyright wonks about whether a single private copy technically is or isn't a violation of the copyright statute. But as a practical matter, someone who made a copy in private for personal use never faced enforcement claims, which is why the academic debate could rage on because we have no court authority to settle the question. But this private copying turns out to be an important mechanism for preserving works as a recent example shows and we're now going to switch examples from film to baseball. So the 1960 World Series pitted the New York Yankees against the Pittsburgh Pirates. The series went to a seventh game at Forbes Field in Pittsburgh and this was apparently quite a game. A recent book about it is entitled The Best Game Ever. The lead changed hands four times and the game made World Series History as the only such game without a single strike. As one commentator explained it featured 19 runs and 24 hits was played in a brisk two hours and 36 minutes. It was full of managerial decisions to second guess, clutch hits and unlikely heroes, pitchers throwing through pain and strange quirky plays. I'll give you an idea of how exciting the game was. I'll summarize just the last couple innings. In the eighth inning the Yankees pulled ahead seven to four and Pittsburgh's prospects looked dim. By the end of the inning though the Pirates were winning nine to seven. In the ninth, Mickey Mandel did some tremendous base running to avoid a double play that would have ended the game and the Yankees tied the score at nine, nine before the Pirates came up to bat. Bill Mazurowski let off for the Pirates and he had a homerun. The only game seven walk-off homerun in World Series History winning the game for the Pirates 10 to 9. But most of you almost all of you certainly have never seen the game unless you happen to be at Forbes Field or watched it when NBC broadcasted live. Because as I mentioned before until the 1970s TV networks and stations routinely erased or discarded their film of sporting events even ones as important as the World Series. So the only known audio-visual record of the game existed in highlights. Until recently that is. About two years ago five reels of 16 millimeter film that recorded the broadcast of the 1960 game turned up. In the cellar of the home of the late Ben Crosby. You might know that Crosby was a part owner of the Pittsburgh Pirates in 1960. But he was too nervous to watch the series. He was apparently quite superstitious and he feared that if he were to even be in the country he would jinx them. So he and his wife went to Paris and followed the action by radio. But apparently he knew that if his team did win he'd be sorry that he hadn't seen the game. So he arranged for a kinescope recording of the broadcast to be made by filming off of a TV monitor. And apparently after he returned to the states presumably jubilant and watched the seventh game he put the film in his cellar along with many other films and records restored there. Where it was recently discovered so that it could since be broadcast and released on DVD. So we owe our ability to watch what at least some people consider the best baseball game ever not to Major League Baseball or to NBC but to a private copy made by a viewer. And it's not just celebrities who did this a video an almost complete video cassette of the first Super Bowl played just down the road to Los Angeles Coliseum turned up recently somebody who had a video cassette recorder at work hoping that it might someday be valuable. As far as we know it's the only copy that remains of the very first Super Bowl. So clearly creative works have faced a long and difficult road to survival copyright law has done what it can in a sort of unintentional way to help. But at any time there remains I'd like to think just a little bit about how the prospects of survival have changed with the emergence of digital technologies and computer networks. So the new technological environment may offer some benefits for preservation old works are being digitized new works are being born digital and that facilitates the making of more copies of a work. It's now possible to store a digital copy of a book or a song or a film and produce on demand a bound volume or a CD or a DVD and that could result in lots more fresh copies being circulated throughout a work's copyright life with each copy going out into the world to make its way into the future. The Google Book Project offers an example of this many of you will be aware that Google is involved in a very large and contested project to digitize as many existing books as it can and make them available online that obviously makes them more accessible than they would be if they were just in the stacks of an academic library. It could also make it possible for copies to proliferate, be printed out, digital copies be stored by Google, by libraries, by others we could have lots of copies. But I'd like to focus on the challenges that digital technologies pose for preservation. Analog copies of creative works don't require hardware and software to access them. A printed book or play or sheet music or a photograph or a painted canvas these are all immediately perceptible as long as the physical copy is maintained. But digitally stored works are useless unless the proper equipment is available to translate the stored data into a form that the reader or viewer or listener can proceed. You can see this contrast by an example involving the Doomsday Book. You will know that the original Doomsday book is a survey in England compiled for William the Conqueror in 1086 handwritten in ink on parchment. Today, nine centuries later, it can still be read at Q at the Public Record Office, now the National Archives. By contrast between 1984 and 1986 in honor of the book's 900th anniversary the BBC compiled two interactive video discs containing extensive multimedia documentation of life in Britain at the time including thousands of maps, pictures and data sets. Much of the information was contributed by around a million members of the public. Unfortunately, the BBC Doomsday project was stored on laser discs that didn't become a widely adopted standard and the data can be accessed only on fairly specialized computers with specialized software. And in less than two decades the discreeters, the computers and the software have become increasingly rare and the ones that exist are difficult to maintain. So major efforts have been required in order to try and extract the data and make it available again. So the contrast between the Doomsday Book, still readable with no technological intervention needed, hundreds of years after its creation and the BBC Doomsday project which required a high-tech rescue after just 15 years illustrates some of the significant hurdles that digital technologies can pose for preservation. To make this more personal, I suspect that many of you may have, squirreled away somewhere, a cache of five and a quarter inch floppy discettes that if they haven't disintegrated contain lots of documents created using WordPerfect for DOS. Or maybe you have a stash of three and a half inch floppies holding documents that you wrote using MechWrite running on the system software it wasn't even an operating system it was just called system on your Apple Macintosh. Now it may not yet be impossible to read your documents but it's certainly a lot harder than reading the documents that you wrote recently. And while the documents that you have today stored on a CD or a USB key might seem likely to remain easily accessible well into the foreseeable future I suggest it's possible that new developments might eventually make those storage media obsolete as well. How confident are you that the books you download to your Kindle in Amazon's AZW format will be readable in 50 years or consider the artist David Hockney who today apparently works most often in the medium of his iPad which he uses as a drawing he produces some beautiful work he emails it to friends and colleagues a senior curator at LACMA said she had to go get an iPad so she could receive the drawings on the same platform Hockney used to make them. Hockney's paintings and photo collages should be relatively easy to view 100 or 200 years from now if the physical artifacts survive. But how easy will it be to view his iPad drawing? So these are the problems that digital technology can pose. Perhaps the biggest problem is the move away from having lots of copies to a world in which works are simply transmitted. You go to a YouTube page YouTube will stream to you the video on that page you can watch it but you ordinarily don't end up with a copy. If you want to see the video again you've got to go back to YouTube again. And this means that lots of copies keeps stuff safe principle won't necessarily operate very well in a world in which works are transmitted online instead we're going to have to rely on the copyright owners maintaining their copies that they use to transmit the works and we've seen that we might be a little reluctant to trust copyright owners with having their copies bear all the risk of destruction. Alright so let me circle back by asking about the question of the role that copyright law might play in making good on the obligation to transmit creative works to future audiences. For Chancellor's chair lecture earlier this year my beloved colleague Catherine Fisk noted with apologies to me that copyright might not be the only way or even the best way to think about the issues of attribution of creative work. Because I have such high regard for Catherine I forgave her the heresy of even suggesting copyright might not be at the center of all important questions regarding creativity and authorship but now I find myself committing a similar heresy it seems to me that preserving creative works isn't only or even primarily a task that copyright law can accomplish obviously the important work of archives and libraries on their own and in partnership with creators and copyright owners will probably be the most important part of keeping creative works available for future audiences. But I think that even though copyright has not traditionally fought very explicitly about preservation issues perhaps going forward in writing and interpreting copyright law legislators judges regulators and academics should pay more attention to the consequences of their actions for preservation. Perhaps the maximum to consider in our deliberations the impact of our decisions on the next seven generations should come into play in copyright lawmaking as well. There may be specific things we can do there are proposals to expand the existing limitations for libraries and archives there are things we could do by requiring copyright owners to engage in more and better deposit of copyright of copies with the copyright office and we could certainly think about being more generous in private copying the kind that leads to Bing Crosby having a copy of the broadcast of the 1960 World Series in his basement. So all of those it seems to me are ways that copyright law can think about doing a better job of fulfilling its promise to the future. So let me close by emphasizing that I don't mean to suggest that every scrap of creative work can or should be saved or preserved. Preserving everything is certainly unrealistic and probably undesirable in a system in which every fixed and minimally creative work of authorship is copyrighted for example, pretty much every email of more than a few lines that you write, most snapshots that you take with your smartphone or digital camera but neither should we simply leave it up to the vagaries of time or the fate to determine which creative works of our day and from the past our descendants will be able to read and listen to and watch. And so here I'll offer my footnote to Professor Kaplan's an unhurried view of copyright. In the book he wrote quote, copyright law wants to give any necessary support and encouragement to the creation and dissemination of fresh signals or messages to stir human intelligence and sensibilities. It recognizes the importance of these excitations for the development of individuals and society. And he noted how important copyright law had been in getting creative works published so that those messages might be received. But he added eliciting publication is not an end in itself publication without easy access to the product would defeat the social purpose of copyright. Now Professor Kaplan was talking about access to creative works at the time they were created and published but I think his view of the social purpose of copyright also applies to copyright's obligation to see that some of these works' messages will stir human intelligence and sensibilities in the future as well. Remember that if this lecture had been given a hundred years ago those of us in the room today would have been the future audience that the lecture had been talking about. Our lives and work have been enriched by having access to creative works that have come down to us from more than a century ago. We have benefited from the copyright system in the past and it gets promised to the future us. I think we therefore have a responsibility to try and help the creative works of our day reach the readers listeners and viewers of the 22nd century. Thanks very much. I spent a fair amount of time talking about the benefits of what you call recording or pack-radism or whatever you want to call it. I was hoping you might spend a little bit at the very end of that but I was hoping you might spend some time talking about the costs perhaps of recording. Maybe there aren't very many and so that suggests a very robust recording sort of mandate for copyright law and more generally but I was hoping you might spend some time talking about perhaps the cost of trying to promote the protection and preservation of every tweet email family video of Hawaii that might exist out there. Maybe that obviously is something which you're focused on perhaps the ancillary cost of too robust a preservation culture or law. So I think the on the preservation side I think the costs are not particularly substantial and decreasing other than the fact that it's expensive particularly if you require temperature controlled warehouse in order to maintain this stuff you know you're an environmental law professor but we got lots of space we could keep lots of this stuff but that of course is getting easier because we can digitize it and so it takes up a lot less space and the search tools are getting better so we can digitize it all and not maybe have to worry about losing it we don't have to select what we preserve we could preserve everything and later go back and find it that obviously has difficulties as I suggested given that formats change software changes so if we digitize everything today we might think great we're done we can jump all the old physical copies we've saved all that space we don't have to kill anymore trees because we'll put everything digital and not printed out but then we may have the doomsday project problem that 50 years from now all of this stuff that's been digitized is even if we still have the disk and the disk hasn't degraded can we actually access it so to the extent that I think initially the sort of preservation problem would be if you preserve everything then you can't sort through it to find it in order to get the stuff that you might want and that kind of cost is going away but if we're in fact every so often we're going to have to migrate all of our digital stuff to a new format then that's presumably the cost because it's going to be more cumbersome to have people sitting there converting everything from word perfect to word to word 97 to word 10 so there's some cost there that obviously you could reduce if you only preserve fewer things that you know slash think will be the interest for recovery if preservation needs here are harder if shorter or longer if you have protection for six months I'd be more incentivized to keep the copy because you're thinking more the incentives work both ways arguably the longer the term is the more incentive the copyright owner has to preserve the work that didn't turn out very well with film and television but copyright was shorter than most films would have been protected for mostly 28 years possibly 56 years if they were really good but I think part of the problem is that I think a lot of copywriters don't operate on the principle of a long time horizon maybe that's changing the digital environment as things can be more easily exploited to a wider audience for longer but I think most publishers when they're deciding whether or not to accept a manuscript aren't really asking how many copies is this manuscript going to sell 70 years from now can we make a profit on this in the next three years, five years and if it turns out that it's valuable great, we'll keep it so one argument is a longer term would give copyright owners more incentive I'm not sure that that's necessarily the case on the other side certainly I think libraries, archives, historians would say the sooner the work goes into the public domain then the sooner we'll be able to engage in potentially the kind of copying that would be needed in order to preserve it if it's not a massive free book that's going to be okay for a couple hundred years about how much we've done to it and so that would obviously provide some breathing space for organizations that are engaged in preservation I think it's exceedingly unlikely that we're going to reduce the very long term copyright so I think the kind of middle ground is to see if we can find ways to allow libraries, archives new organizations like the Internet Archive which preserves material online and makes it available in the way back machine absent Mr. Peabody and Sherman because you can remember the Rocky and Boyle show but allow them also to engage in that work while things are still protected by copyright so the copyright owners can still commercially exploit them if they're valuable but we can also get some of the benefits I'm not sure when the 70 year rule came into being but I assume it was a long time ago and a long time ago life expectancy was much much shorter so here we are living longer lots of things in our society are changing retirement ages and so on do you think there should be some adjustment of the duration of copyright so it's actually not all that old for us only in 1978 did we switch from 28 years renewable for 28 years to life plus 50 and only in 1998 did we make it life plus 70 I suspect to agree that life expectancy, retirement age and all of that had gone in the same direction you were indicating between 1978 and 1998 nonetheless we added another 20 years of protection so while I think there are good reasons to think a shorter copyright term for preservation and other reasons would be better we seem to be going the other way and it turns out that by a whole variety of international instruments we have obligated ourselves to other countries to have a term of life at least life plus 50 and in some cases life plus 70 so unless we're willing to withdraw trade organization and abrogate a whole bunch of bilateral intellectual property treaties that we've signed with major trading partners I don't see the likelihood that we're really going to get to shorter than life plus 70 that's a great talk I wanted to make two provocative statements one is that a historian even though the fantasy is always Henry J. said the historian wants more documents than they can possibly use we actually don't what we do wouldn't be interesting if everything was safe so we need some things some things we want to have say no copyright would want we want receipts we want things to fall to the ground but more provocatively I thought some of the preservation is done by copyright breakers like the only recording I don't think there's any recording released of Joni Mitchell and James Taylor doing a concert together because somebody snuck a recorder I've got this bootleg I love that was sold illegally bought illegally I guess so actually it doesn't piracy of various kinds help so you need copyright and copyright breakers? I would actually not classify necessarily all of what you've described as piracy I suspect the copyright industry would classify all of that as piracy because we generally have to agree so this is the point about private copying so my colleague at Michigan Jessica Litman has tried to get us to think more deeply about the appropriate sphere of lawful personal copying it's a new term because if you say private copying that just sharpens all of the old battle lines and she's talked about this mostly in the sense of the kind of liberties that readers and viewers and listeners want to have but it seems to me that along the lines I suggest thinking of the kind of preservation impact of things we do in copyright would suggest that we ought to think about lawful personal use which might include making a copy for personal use not for commercial sale of a concert we might want to think about whether or not we would want to make that more licent or at least more tolerated because we do get some benefit from that we're going to have a reception out in the courtyard please join us for that and please join me in thanking Tommy for his question