Jacques Coulardeau, Copyright & Fair

Use have it happy and light on Kindle (80)

Freedom of Expression
and Copyright
The Foundations of All liberties
First, THE DOCUMENTS
For the last twenty years a rivalry if not even worse between the USA and the
European Union has been going on in the field of intellectual property. The
emergence of the internet and virtual communication has accelerated the IP
divide between the two continents. The USA decided to join the Berne
Conference and WIPO some forty years ago. It upgraded its copyright laws in
1976 and then again in 1998 to be on a similar standing as the EU.

Yet Europe, led in that by France refuses to negotiate anything having to do

with intellectual property with the USA: thats what they call the cultural exception.
The result is a catastrophe. Since works are protected in the whole world under
the copyright specification of the country in which they are first registered, the
USA is dominant in the cinema, video art, television, music and even as for that in
all printed matters. But Europe is nicely caressing the idea of widening the divide
by projects that are sort of hectic.

The first one of these is the intention to force all research publications that
have received some public money in the research per se or the publication of it to
go open access. This means the ruin of scientific publishing in Europe. Publishers
have already opened autonomous subsidiaries in the USA to evade the problem.

But whats more the linguistic problem of Europe and of scientific research is
multiplying the divide with linguistic dynamite: thats what they call cultural
diversity. Scientific research has to be in English at world level today and for still
quite a few more years. Researchers are then balancing the difficulty of writing in
English or having their work translated on one hand and publishing directly in the
USA to be on the international market directly on the other hand. And so far they
have not found a third hand in that game Their future then is a vast exodus out of
Europe, and with the Internet they will be able to stay in our capital cities or
mountains and work in constant contact with New York or Los Angeles.

And the cinema is not better since today no great film, great in quality as well
as in audience, can be produced on a national basis and has to be co-produced
with an American studio if possible. What can European studios do when they
have to work with Hollywood? Not much, even the French studios in spite of their
vanity. And the second most important intellectual property practice of the USA is
coming as a stow-away in the holds of coproduction. That seems to make
Europeans slightly feverish and the French are frankly burning hot if not burning
out. The advantage of fair use is that every field has negotiated or is negotiating
statements of best practices in fair use that are logical for one and a lot more
protective to IP than the European never ending and always growing list of
exceptions as they call them (exemptions would be too nice for that systematic
practice).

This stake is central to the future because it determines the level of creativity,
productivity, invention and growth we will have in the coming years. The
Americans and the Europeans, like ostriches with their heads in the sand or like
two male reindeer fighting for a female and that forget the hunters are not very
far, just dont seem to know two countries are nicely moving in the wings and
recuperating what we forget to defend. Russia and China are smiling nicely and
they just wait for the chestnuts to be well roasted on the hot plate of the Western
apes who are fighting about whether they have to wear gloves to shake hands.

Some are getting realistic but then they can only speak of the Chinese
thieves who are stealing everything and of the Russian ruffians who are
misappropriating anything they can. How nave! We have already said that about
the Japanese. We know the result. And the CIA is only manipulating the various
Latin American countries to get rid of the left-leaning governments, ignoring that
the new governments are business people who will understand the discourse of
China one hundred times more than the left leaning governments of before that
adored corruption essentially because they were unable to prevent it. Trump
seems to have understood that there may be something to do in a new
commercial direction but isnt he too late?

The Chinese are reducing their coal mines at a speed that seems to be very
sickening to some and Trump would reopen his coal mines? Funny indeed. One
more promise that will get laminated within six months. And he will then discover
that he wont be on Mars first because he does not have the human means to do
it. Tesla, Google and Apple, among others, will invest at global level and not in
the rose garden of the White House and Europe for them is at most a cabbage
patch in a vegetable garden in fact quite invaded with stinging nettles and thistles.

But Trump will win one battle for sure as long as China is not trying to
conquer the world at that level: he will impose the US copyright and its Fair Use to
the whole world, not because it is American but because it works for one and it is
the best equilibrium Intellectual property can build.

So here is a full volume to answer all you have to ask about the history of the
freedom of expression and the emergence of copyright in our world, an invention
that is to stay and has a long future ahead, because it is the best protection
possible of intellectual property

Enjoy the trip.

My personal commentaries and presentations of each document are

published as a Kindle book and all the documents are made available in open
access in one volume you can find at
https://www.academia.edu/31829015/Freedom_of_Expression_and_Copyright_T
he_Foundations_of_All_Liberties.
 Second, Kindle Edition Presentation
Intellectual Property is a crucial asset in modern economy, hence in the
modern world that is being globalized thanks to the far-reaching development of
networks, the cloud, and even the intercloud of Kevin Kelly. The only regulatory
force is Copyright (and Patents for inventions).

This volume starts exploring the emergence of freedoms in the western

world in 1100 in England and follows it till 2016 in the world, though the approach
is centered on the USA, hence with Copyright and Fair Use, the former being
meaningless without the latter which is the recognition of the moral rights of the
author, moral rights that plunge their roots in the common law of intellectual
property, moral rights that are perpetual.

This volume only contains the commentary and reflections based on the
numerous documents. I have collected all the documents in one file that I have
uploaded on a research site and it is free and open access. The documents
collected there are under fair use and they are all available on the Internet
anyway. The file containing the documents can be reached at
https://www.academia.edu/31829015/Freedom_of_Expression_and_Copyright_T
he_Foundations_of_All_Liberties.

You can of course neglect going to the documents (550 pages and
443,000 words. But then you will have to take my word for everything I say, which
is not the best thing to do. Do check the documents.

The general idea is that freedom of expression is the first freedom to

develop since there cannot be any discussion, negotiation or bargaining if that
freedom does not exist. The crucial event showing the emergence of this freedom
as a freedom for all and not as a privilege for a few is the abolition of slavery
which took place in Christian Europe after the religious reform of the 9th century
and Charlemagne. This reform introduced 75 days of no-work-at-all for religious
reasons: fifty-two Sundays and three week-long feasts: Nativity, Passion and
Assumption, plus a few isolated days here and there.

This reform required a complete restructuring of society, and first of all

agriculture. The green revolution it implied and caused required some
homogeneous land ownership and status for all field workers. That was
feudalism: the land was the property of barons (up to the King or Emperor) and
church orders and parishes, and above all Benedictines. That implied then the
proto-industrial revolution of the watermills in order to replace and compensate for
human work.

Copyright was invented as a censorship tool in 1557 by Queen Mary 1st,

and confirmed by Elizabeth 1st. This censorship of printed matters in England
was paramount all along and through the 17th century. It is only Queen Anne in
1710 with her Statute of Anne who liberated publishing from this censorship and
gave copyright to the sole authors; That determined a tremendous freedom of
expression, and the first printed press. It also gave rise to tremendous innovation
with engravings and etchings: England finally caught up on the Germans and the
Dutch, mainly though not only.

But this copyright remained limited because it did not recognize the moral
rights of the author, since intellectual property that is perpetual in common law
was declared repealed by the first publication of any work that cast the work
entirely in the only economic or patrimonial, plainly commercial dimension. That
has practically not changed in Great Britain since the decision of the House of
Lords of 1774.

The USA did things differently and they kept the common law active. It
took them to move from a copy-cat legislation (inscribed in the Constitution itself)
reproducing the English legislation to change around the middle of the 19th
century and the emergence of moral rights under the concept of "fair use" that will
only be integrated in the Copyright Act of 1976. And that's where we stand today:
copyright + Fair Use are the best protection possible of intellectual property in the
world.

Dr. Jacques COULARDEAU

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 TABLE OF CONTENTS
Documents
(The page numbers correspond to the open access volume of documents.)

The commentaries and presentations that are published separately in a

Kindle edition represent in size about 40% of the size of this volume of
documents. These commentaries and presentations contain about 154,000 words
with a 5,740-word synthetic introduction as compared to 443,000 words in this
volume of documents. I would advise you to get to this Kindle volume launched
on March 15, 2017. This Kindle volume contains a lot of complementary
resources on various legal aspects or national systems necessary to assess the
future of Copyright in the world.

(P.4 Preliminary Note

P.5 Table of Contents
P.9 Charter of Liberties of Henry I, 1100
P.11 Magna Carta, The Great Charter of English liberty granted (under
considerable duress) by King John at Runnymede on June 15, 1215
P.17 Medieval Torture and Punishment
P.29 The 10 Most Gruesome Torture Techniques From Medieval Europe
P.36 THE CHARTER OF KURUKAN FUGA(1235-1236) (By SIRIMAN
KOUYATE)
P.39 William Wallace (1272 23 August 1305)
P.39 Blind Harrys Wallace, by William Hamilton of Gilbertfield, introduction by
Elspeth King and Illustrations by Owain Kirby, reviewed by Sharma Krauskopf
and rated
P.42 UTOPIA, Sir Thomas MORE
P.79 Stationers Company Charter Granted by Philip and Mary and confirmed
by Elizabeth I. [1557]
P.82 John STUBBS, The Discovery of a Gaping Gulf Whereinto England is
like to be Swallowed by Another French Marriage, if the Lord Forbid Not the
Banes, by Letting Her Majesty See the Sin and Punishment Thereof.
P.84 WILLIAM SHAKESPEARE, Titus Andronicus

P.137 The King's Majesty's Declarationto His Subjects ConcerningLawful

Sports to Be Used(1633)
P.141 The Petition of Right 1628
P.143 A DECREE OF STAR CHAMBER CONCERNING PRINTING. MADE
JULY 11, 1637.
P.153 The Root and Branch Petition (1640)
P.157 June, 1643, An Ordinance for the Regulating of Printing.
P.159 AREOPAGITICA, A SPEECH OF Mr. JOHN MILTON 1644 For the
Liberty of UNLICENC'D PRINTING, To the PARLAMENT of ENGLAND.
P.177 LEVIATHAN (Excerpts) By Thomas Hobbes 1651
P.201 The Declaration of Breda, (1660)
P.202 Charles II, 1662, An Act for preventing the frequent Abuses in printing
seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of
Printing and Printing Presses.
P.201 Habeas Corpus Act (1679)
P.214 BILL OF RIGHTS (1689)
P.218 The Statute of Anne (1710)
P.221 Witchcraft Act of 1736
P.223 MARRIAGE AND LIFE EXPECTANCY, HARDWICKES MARRIAGE ACT
1753

P.227 The Case of JAMESSOMMERSETT, a Negro, on a Habeas

Corpus,King's Bench: 12 GEORGEIII.A.D.1771-72.
P.230 Donaldson v. Beckett, Proceedings in the Lords on the Question of
Literary Property, February 4 through February 22, 1774
P.251 UNITED STATES DECLARATION OF INDEPENDENCE IN
CONGRESS, JULY 4, 1776
P.253 UNITED STATES CONSTITUTION (September 17, 1787)
P.258 UNITED STATES CONSTITUTION, AMENDMENTS 1-10 (December 15,
1791) Bill of Rights
P.259 UNITED STATES CONSTITUTION, AMENDMENTS 11-27 (February 7,
1795- May 7, 1992)
P.264 COPYRIGHT IN THE USA, A TIMELINE, SUMMARY AND COMMENT.
From 1787 to 2006
P.266 1st Copyright Law of the USA, enacted during the 2nd session of the 1st
Congress, May 31, 1790, signed by President George Washington
P.268 THE SCARLET LETTER, 1850, by Nathaniel Hawthorne
P.345 EREWHON, OR OVER THE RANGE, Samuel Butler, 1872
P.422 Copyright Law, By Mark F. Radcliffe and Diane Brinson of DLA Piper
Rudnick Gray Cary
P.425 U.S. Code: Title 17 COPYRIGHTS
P.429 WIPO Copyright Treaty (adopted in Geneva on December 20, 1996)
WIPO Performances and Phonograms Treaty (WPPT) (adopted in
Geneva on December 20, 1996)
P.445 Sonny Bono Copyright Term Extension Act. S.505 One Hundred Fifth
Congress of the United States of America AT THE SECOND SESSION
P.450 The Campaign Against the Mickey Mouse Act, A sample of reactions
P.459 UNITED STATES SUPREME COURT, ERIC ELDRED ET AL v. JOHN D.
ASHCROFT, ATTORNEY GENERAL CASE N 01-618
P.504 Copyright Royalty and Distribution Reform Act (2004)
P.524 The Sonny Bono Copyright Term Extension Act Various Critical
Resources
First Document, Copyright case threatens Disney, David Teather
in New York, The Guardian, Wednesday 20 February 2002 02.24 GMT
Second Document, 10th anniversary of the Sonny Bono
Copyright Term Extension Act: Can the good guys overturn it? (October
29th, 2008)
Third Document, Opposing Copyright Extension, A Forum for
Information on Congress's Recent Extension of the Term of Copyright
Protection and for Promoting the Public Domain
Fourth Document, freeculture.org, STUDENTS FOR FREE
CULTURE MANIFESTO
Fifth Document, Cereal Solidarity brought to you by
freeculture.org
Sixth Document, Lawrence Lessig's Supreme Showdown,
STEVEN LEVY, MAGAZINE, DATE OF PUBLICATION: 10.01.02
Seventh Document, Art History Club, Sonny Bono Copyright
Term Extension Act
Eighth Document, CEPR, Center for Economic and Policy
Research, The Artistic Freedom Voucher: An Internet Age Alternative to
Copyrights, Dean Baker, November 5, 2003
P.541 FAIR USE, Documentary Filmmakers Statement of Best Practices in Fair
Use (November 2005)
 TABLE OF CONTENTS
COMMENTARIES & PRESENTATIONS
(The page indications are only accessory in this edition but they give the
size of each presentation.)
(All documents are available in open access as indicated on the copyright
page)

P.4 Introduction
P.10 Table of Contents
P.14 Charter of Liberties of Henry I, 1100
P.15 Magna Carta, The Great Charter of English liberty granted (under
considerable duress) by King John at Runnymede on June 15, 1215.
P.19 Medieval Torture and Punishment
P.22 The 10 Most Gruesome Torture Techniques From Medieval Europe
P.23 THE CHARTER OF KURUKAN FUGA(1235-1236) (By SIRIMAN
KOUYATE)
P.25 William Wallace (1272 23 August 1305)
P.26 Blind Harrys Wallace, by William Hamilton of Gilbertfield Introduction by
Elspeth King and Illustrations by Owain Kirby, reviewed by Sharma Krauskopf
and rated
P.30 UTOPIA, Sir Thomas MORE
P.35 Stationers Company Charter Granted by Philip and Mary and confirmed
by Elizabeth I. [1557]
P.37 John STUBBS, The Discovery of a Gaping Gulf Whereinto England is like
to be Swallowed by Another French Marriage, if the Lord Forbid Not the Banes,
by Letting Her Majesty See the Sin and Punishment Thereof.
P.38 WILLIAM SHAKESPEARE, Titus Andronicus
P.41 The King's Majesty's Declarationto His Subjects ConcerningLawful
Sports to Be Used(1633)
P.43 The Petition of Right 1628

P.45 A DECREE OF STAR CHAMBER CONCERNING PRINTING. MADE

JULY 11, 1637.
P.49 The Root and Branch Petition (1640)
P.52 June, 1643, An Ordinance for the Regulating of Printing.
P.53 AREOPAGITICA, A SPEECH OF Mr. JOHN MILTON 1644 For the
Liberty of UNLICENC'D PRINTING, To the PARLAMENT of ENGLAND.
P.56 LEVIATHAN (Excerpts) By Thomas Hobbes 1651
P.60 The Declaration of Breda, (1660)
P.62 Charles II, 1662, An Act for preventing the frequent Abuses in printing
seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of
Printing and Printing Presses.
P.64 Habeas Corpus Act (1679)
P.65 BILL OF RIGHTS (1689)
P.68 The Statute of Anne (1710)
P.71 Witchcraft Act of 1736
P.73 MARRIAGE AND LIFE EXPECTANCY, HARDWICKES MARRIAGE ACT
1753
P.76 The Case of JAMESSOMMERSETT, a Negro, on a Habeas
Corpus,King's Bench: 12 GEORGEIII.A.D.1771-72.
P.79 Donaldson v. Beckett, Proceedings in the Lords on the Question of
Literary Property, February 4 through February 22, 1774
P.88 UNITED STATES DECLARATION OF INDEPENDENCE IN
CONGRESS, JULY 4, 1776
P.91 UNITED STATES CONSTITUTION (September 17, 1787)
+ UNITED STATES CONSTITUTION, AMENDMENTS 1-10 (December
15, 1791) Bill of Rights
+ UNITED STATES CONSTITUTION, AMENDMENTS 11-27 (February
7, 1795-May 7, 1992)

P.94 COPYRIGHT IN THE USA, A TIMELINE, SUMMARY AND COMMENT of

the following events:
1787: U.S. Constitution
1790: Copyright Act of 1790
1831: Revision of the Copyright Act
1834: Wheaton v. Peters
1841: Folsom v. Marsh
1853: Stowe v. Thomas
1870: Revision of Copyright Act
 1886: Berne Convention
1891: International Copyright Treaty
1909: Revision of the U.S. Copyright Act
1973: Williams and Wilkins Co. v. United States
1976: Revision of the U.S. Copyright Act
1976: Classroom Guidelines
1976: CONTU Process
1983: Encyclopedia Britannica Educational Corp. v. Crooks
1986: Maxtone-Graham v. Burtchaell
1987: Salinger v. Random House
1988: Berne Convention
1990: Circulation of Computer Software
1990 Pierre N. Leval, Toward a Fair Use Standard
1991: Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522
(S.D.N.Y. 1991)
1991: Feist Publications v. Rural Telephone Service Co., Inc., SUPREME
COURT, 499 U.S. 340 (1991)
1992: American Geophysical Union v. Texaco
1992: Amendment to Section 304 of Title 17
1993: Playboy Enterprises Inc. v. Frena
1993: NII Initiative

1994: Campbell v. Acuff-Rose Music Inc.

1994: Working Group's Green Paper
1994: CONFU
1995: Religious Technology Center v. Netcom
1995: Release of the White Paper
1996: TRIPS Agreement
1996: Database Protection Legislation
1996: Princeton University Press, MacMillan Inc., and St. Martin's Press
v. Michigan Document Services, Inc., and James Smith
1996: World Intellectual Property Organization (W.I.P.O.)
 1998: Sonny Bono Copyright Term Extension Act
1998: Digital Millennium Copyright Act
1999: Bender v. West Publishing Co.
1999: UCITA Passed by NCCUSL
1999: Digital Theft Deterrence and Copyright Damages Improvement Act
of 1999
2000: Virginia Passed UCITA
2000: Librarian of Congress Issued Ruling on DMCA
2000: Register.com v. Verio
2001: Greenberg v. National Geographic Society
2001: New York Times v. Tasini
2001: ElcomSoft Programmer, Dmitri Sklyarov, Arrested for Copyright
Circumvention
2001: State Sovereign Immunity
2002: Consumer Broadband and Digital Television Promotion Act (S.
2048) Introduced in Senate
2002: ABA Issues UCITA Report
2002: U.S. Supreme Court Hears Challenge to 1998 Copyright Term
Extension Act

2002: Senate Approves Distance Education Legislation

2003: Eldred v. Ashcroft
2003: Dastar Corp. v. Twentieth Century Fox Film Corp.
2003: Kelly v. Arriba Soft
2004: Chamberlain Group Inc. v. Skylink Techs. Inc.
2004: Lexmark v. Static Control Components
2005: Family Entertainment and Copyright Act
2005: Faulkner v. National Geographic Society
2005: American Library Association v. Federal Communications
Commission
2005: Metro-Goldwyn-Mayer Studios v. Grokster
2005: Google Library Project
2006: Field v. Google
2006: Perfect 10 v. Google
 2006: HR 5439
2006: Clean Flicks of Colo., LLC v. Soderbergh
P.142 1st Copyright Law of the USA, enacted during the 2nd session of the 1st
Congress, May 31, 1790, signed by President George Washington
P.144 THE SCARLET LETTER, 1850, by Nathaniel Hawthorne
P.149 EREWHON, OR OVER THE RANGE, Samuel Butler, 1872
P.153 Copyright Law, By Mark F. Radcliffe and Diane Brinson of DLA Piper
Rudnick Gray Cary
P.154 U.S. Code: Title 17 COPYRIGHTS
P.158 WIPO Copyright Treaty (adopted in Geneva on December 20, 1996)
WIPO Performances and Phonograms Treaty (WPPT) (adopted in Geneva on
December 20, 1996)
P.160 Sonny Bono Copyright Term Extension Act. S.505 One Hundred Fifth
Congress of the United States of America AT THE SECOND SESSION
P.161 The Campaign Against the Mickey Mouse Act, A sample of reactions
P.165 UNITED STATES SUPREME COURT, ERIC ELDRED ET AL v. JOHN D.
ASHCROFT, ATTORNEY GENERAL CASE N 01-618
P.180 Copyright Royalty and Distribution Reform Act (2004)
P.183 The Sonny Bono Copyright Term Extension Act Various Critical
Resources
1- First Document, Copyright case threatens Disney, David Teather in New
York, The Guardian, Wednesday 20 February 2002 02.24 GMT
2- Second Document, 10th anniversary of the Sonny Bono Copyright Term
Extension Act: Can the good guys overturn it? (October 29th, 2008)
3- Third Document, Opposing Copyright Extension, A Forum for Information
on Congress's Recent Extension of the Term of Copyright Protection and for
Promoting the Public Domain
4- Fourth Document, freeculture.org, STUDENTS FOR FREE CULTURE
MANIFESTO
5- Fifth Document, Cereal Solidarity brought to you by freeculture.org
6- Sixth Document, Lawrence Lessig's Supreme Showdown, STEVEN LEVY,
MAGAZINE, DATE OF PUBLICATION: 10.01.02
7- Seventh Document, Art History Club, Sonny Bono Copyright Term
Extension Act
8- Eighth Document, CEPR, Center for Economic and Policy Research, The
Artistic Freedom Voucher: An Internet Age Alternative to Copyrights, Dean
Baker, November 5, 2003
P.199 FAIR USE, Documentary Filmmakers Statement of Best Practices in Fair
Use (November 2005)
1- FIRST APPROACH, WILLIAM F. PATRY PATRY ON FAIR USE 2014
EDITION
2- SECOND APPROACH, PATRICIA AUFDERHEIDE & PETER JASZI
RECLAIMING FAIR USE 2011
3- THIRD APPROACH, DOCUMENTARY FILMMAKERS
Some think this is Europe in their final phase, playing
their trump card with a poker liar
 Editions La Dondaine
8 rue de la Chausse
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(33)473955917
dondaine@orange.fr

Dr. Jacques COULARDEAU, 2017

The moral right of the author has been asserted
All rights reserved

Cover Illustration
Annunzio Coulardeau & Jacques Coulardeau
The moral right of the authors has been asserted
All rights reserved

This volume only contains the authors commentaries and

personal opinions and presentations of the various documents. The
documents themselves are mostly available on the Internet but you
can access them all in one open access volume at
Freedom of Expression and Copyright, The Foundations
of All Liberties
https://www.academia.edu/31829015/Freedom_of_Expressio
n_and_Copyright_The_Foundations_of_All_Liberties, uploaded
March 12, 2017