There’s a 6/14/2014 Hollywood Reporter article called “Conan Doyle Estate Loses Appeal Over ‘Sherlock Holmes’ Rights”. A similar article appeared on Techdirt, “Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain”, 3 days later.
Essentially, the CDE is seeking 135 years of copyright (combined from the UK and USA copyright spans) over their star sleuth. By the end of 2022, the last 10 Doyle-written SH stories will be public domain here. Heck, at the end of the report for * Leslie S. Klinger v. Conan Doyle Estate, LTD.*, 7th Circuit Judge Richard Posner even says 135 years is near perpetual.
OK, the Techdirt article mentions Justice Kagan acted alone with the decision (a SCOTUS-related ruling on copyright I actually agree with). So, she was disagreeing with the 135 years of copyright. Let’s say all 9 SCOTUS members agreed that 135 years was too long.
Take a look at Cornell’s “Copyright Term and the Public Domain in the United States
1 January 2017” page. A work 1st published in the USA between 1978-3/1/1989 (condition is that it was a post-1977 work with a copyright notice) will have these years of coverage : “70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first”.
If 135 years is close to perpetual copyright, why is life+70 not considered?
Because the Conan Doyle estate is not as rich and powerful as Disney?
Seriously, works by a young author who lives a long time could easily stay under copyright longer than 135 years, so “life+70” isn’t all that different. I believe this is one of those cases where the absurdity of perpetual copyright is laid bare, but everyone will have excuses for why this situation is different, and not representative.
The fact remains that we have more 19th century works than 20th century works available to us today, precisely because of ~100 year copyrights, which means the law isn’t doing its job of “promoting the progress of science and the useful arts”. It’s time for a change. If creators and business are worried about work they’ve already invested in, let’s grandfather existing works into the existing copyright scheme, and go back to 14 years plus one renewal, if and only if you file for it, for new works.
What is interesting is that Doyle himself even grew tired of writing Sherlock stories (as in, the word “hated” could be used) but did it because that’s what made the money. The iconic image of Sherlock (the deerstalker cap and curved pipe) was developed by an American named William Gillette who later became a long-time friend of Doyle. The CDE could have capitalized on Professor Challenger, who has a personality that’s opposite of Sherlock.
Because, in the USA, any copyright under current law, is “limited” as long as the term is specified or can be calculated. The term can be any length, and can be extended, so 500 years is not eliminated, and 5 years is not too short. SCOTUS has said the Constitution determines that length and terms are up to legislative decisions, not logic or courts.
If you by define perpetual copyright as in lacking a specific amount (limited), then life+70 is unlimited. As such, that conflicts with the “limited times” mandate of the Copyright Clause. Likewise, while 95-120 years may be limited by the letter of the Copyright Clause, it is a de facto perpetual by the spirit of the Copyright Clause. Going with the former example, a foreign or domestic work having a duration of that long is a de facto spirit and letter of our Constitution. Since Congress and SCOTUS have upheld life+70 term lengths, it might not be a stretch to say they knowingly violated the Constitution. Adhering to the Berne Convention be darned! International trade agreements shouldn’t supersede the Constitution.
As someone who is interested in several aspects of American urban culture in the 1920s and early 30s, I had once expected that the “pointer” of expiring copyright would move forward with the march of time. But no, it’s been stuck at 1923 for 17 years now thanks to Sonny Bono.
That’s not how I define “perpetual copyright,” though. Even though life+70 is not a definite span (while the artist is alive) it’s manifestly not “perpetual.”
And perhaps their idea of “spirit,” is not the same as yours.
A period of twenty years is then “perpetual,” for anyone aged 90 while the artist is still alive. But few commentators would view a twenty year copyright as perpetual.