This is my first post in this thread, and I wanted to offer some thoughts about issues I've picked up from other postings thus far.
 
The case of Golan v. Holder: “whether Congress can remove works from the public domain and place them back under copyright protection. It did so in 1994 to align American policy with an international copyright treaty, restricting access to books by H.G. Wells, films by Alfred Hitchcock, and artwork by Pablo Picasso, to name just a few famous examples.”

In fact the international IP treaty in question extended the length of copyright, prospectively; and brought into copyright again works whose copyright had expired, so that they had the benefit of the extension. This prospective inclusion of such works gave them a further 20 years or so of copyright, but did not affect uses of such works after their copyright had expired but before the revival and extension of their copyrights.

Care needs to be taken when considering US (any other foreign) IP court decisions, because (amongst many other things) a country’s legal and constitutional framework dictates the way a country’s judiciary is bound to apply any law. So that, for example, the US has a written constitution that takes precedence over all legislation; whereas the UK doesn’t, and the judiciary and legislators arguably have more legislative/judicial freedom of action.


As for the questions “Should the restrictions of copyright be condemned outright as an anathema to the free flow of information and the freedom of expression? Or is it possible to stop short of a complete rejection of the use of copyright to commodify the expression of ideas, in the interests of authorial rights for example, without becoming complicit in the calcification of culture?”, it’s easy to forget that copyright is an economic/property right intended to reward authors when the fruits of their labours are exploited in the marketplace. As such, anyone wishing to commercially exploit copyright work is required to pay for doing so.

Whereas an author’s moral right (to prevent distortion of their work when exposed to the public) is not an economic right, but more akin to the freedom of expression issue in the sense that an author’s originally expressed work should remain expressed as it was intended.

This leads on to Rob’s related point that “My experience is that people just need to better understand what fixed in a tangible form of expression means”. Yes indeed: it’s that hoary old IP chestnut: the idea/expression dichotomy. In other words, it’s the distinction copyright law makes between, on the one hand, the idea behind/within an artist’s work (that is not IP protected); and, on the other hand, the 'physical' expression of the work (that is IP protected, as long as it is fixed in material form). The fixation rule is legislators’ best attempt to date to avoid ephemeral/transient acts of creativity (whistling your own original happy tune but not recording the tune in any fixed way) being automatically IP protected.

All in all, issues of freedom of expression and copyright are unhappy bedfellows: the former is a fundamental and internationally acknowledged human right; the latter is about stimulating and supporting the creative economy.