The Constitution gives Congress the power to establish the length of copyright “for a limited time.” The Bono act extended copyright protections from 70 to 90 years. Cynics note that Disney lobbied heavily for the extension, as good ol’ Mickey Mouse was set to have his copyright expire in 2003.
Now, as a matter of policy, I think the Bono Act is a travesty. There is no reason to believe that the additional 20 years would add any material inducement to create various forms of intellectual property, and it certainly adds nothing to existing works (F. Scott Fitzgerald has, after all, already written The Great Gatsby).
But as a conservative who prefers his constructionism strict, I’m also appalled by the notion of the courts second-guessing the judgment of the Congress.
On the other hand, “limited time” must mean something. Would a 200 year copyright be constitutionally permissible? 2,000 years? 2,000,000? All are, strictly speaking, “limited,” but I have difficulty believing that’s the kind of power the founders intended to give to Congress.
So, fellow Dopers: how would you construct a judicial rule (if indeed you would construct a rule at all) that balances the judgment of Congress versus giving meaning to the constitutional phrase “limited time”?
Intellectual property was established for one reason. To give incentive to inventors. So, what is a reasonable level of incentive? Personally I’m happy with “lifetime + 50 years”. This means if someone invents something useful and profitable, it will profit them for the remainder of their life and give a boost to their heirs. I feel this is adequate incentive for innovation.
Tying up intellectual property beyond a reasonable timeframe further restricts the inventors of the future. Mankind is a cumulative beast. We see further because we stand on the shoulders of our forefathers. If our forefathers won’t let us stand on their shoulders, then we’re reduced to peeking around them. I don’t feel this is a useful constraint for inventors to work with.
Whether the SCOTUS can define what constitutes “a limited time” or must defer to the legislature’s decision is a question that goes to the heart of the various jurisprudential philosophies of the justices, about which the lawyerly contingent in GD will be able to discuss more intelligently than I.
However, if a remarkably long copyright were adopted and I were sued for violating it, I’d be inclined to claim that having to pay damages was “cruel and unusual punishment.”
I’ll be the first to admit that from a judicial perspective, the chances of Lessig making any headway are slim. However, I’m hoping the publicity of the case will bring some attention to Lessig and his causes.
For anyone interested in a flash presentation by Lessig, covering the above mentioned case and other issues, try the following link. It’s well worth the time to watch it and find out what all the fuss is about.
To get back to the op, I’d have to admit that this is a seriously sticky wicket. Maybe if enough press is generated around it, maybe someday there will be enough congressional support in the future to turn this around the proper way. Don’t hold your breath, though.
There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years , the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped ,or turned back, for their private benefit.– Heinlein, “Life Line”
I don’t see anything in there that says “securing to authors and inventors and their heirs and any corporation that happens to get hold of their work for the indeterminate future.”
Was there discussion (for which we have records) reagrding the need or propriety of copyrights and patents during the Constitutional convention or in either the Federalist or Anti-Federalist papers?
As you say, Dewey, “limited time” necessarily establishes some sort of limit, but what kind of limit it establishes is completely unclear. Then again, maybe it just means you can’t establish copyrights in perpetuity. This is one of those times where I really think you’ve got to go back and look at the notes of the Constitutional Convention, plus the early copyright legislation authorized by the Copyrights Clause, to shed some light on the intent of the drafters. I dearly hope that the Court finds a principled basis for rejecting the Sonny Bono Act, but I have no idea what that basis might be.
The key issue here isn’t whether Congress can opt for a longer period of copyright protection – it clearly can. The question is whether Congress can do so retroactively.
How does extending the copyright on a work that has already been created “promote the Progress of Science and useful Arts?” It clearly does not. These works already exist. There is no public benefit whatsoever to giving them additional protection. Prof. Lessig has an extremely good shot at prevailing on this point.
This is not to say that Congress can’t grant longer protection to new works because this will, at least arguably, promote the Progress of Science, etc. . ., especially when it is necessary to do so in order to conform to international treaty.
The two basic problems with copyright terms are retroactive extensions combined with an established pattern of re-extension one step ahead of the calendar. The former presents the clearer legal issue, but the latter is the one that really does the damage to the Constitution – it’s as if I had three wishes and could ask for “a billion dollars and a perfect physique and three more wishes and immunity to taxes and Sarah Michelle Gellar in a tub of lime Jell-O and three more wishes and…”.
Part of the problem, which Disney I’m sure has run up against, is that Copyrights have not always lasted for a lifetime plus 50 years.
Prior to 1976, copyrights only lasted for 28 years, and were renewable once. This offered a maximum of 56 years of Copyright protection.
After 1976, works created by natural persons are covered by Copyright for the lifetime of the author(s) plus 50 years. Works created by artificial persons (e.g. corporations) are covered by Copyright for 75 years. Or at least they were, until the passage of the Bono Act.
I don’t think the Supreme Court will do much to overturn the law. A couple of shaky areas they might go after are some complicated situations where the new law apparently made it possible to copyright some previously unpublished works that, before the new law was enacted, were considered to already be in the public domain.
My one hope is that they will rule that “limited” means no more than 99 years, which is a standard used in common law for a variety of purposes, and would keep the Congress from continuing to extend the limit forever. It would also be nice if the Supremes expanded “fair use” for older documents to include research web pages that don’t generate revenue, but I’m not holding my breath on that.
A case I have been hoping for since the copyright act revisions in the 70s (1976?). The Bono Act made it more pressing.
The purpose of a copyright or patent is to further the goodies available to the public in both art and technology. The constitution specifies for a limited time. Does extending the time mid-stream increase the incentive for producing those works in the past? Only if one is anticipating that Congress will extend the time, and that is tenuous at best. The argument on the other side is that the 20 year extension is still a limited time of 20 years. And the counter to that is that Congress could then extend it for another limited time, of say 100 years? At what point does it become unlimited? This should be a very intersting case.
When Congress originally established a term of copyright, it was 14 years, renewable once.
It seems inconceivable to me that when the Founders decided to protect intellectual property for a ‘limited time’, they didn’t mean limited relative to the natural yardstick of the typical human life. If you lived to be 100, and works that were written before you were born are still protected after you’ve died, then as far as you were concerned, the term of the protection was without limit.
mtgman said:
And limitations were placed on the term of intellectual property’s ownership for two reasons: (1) it has limited susceptibility to ownership - or so said Jefferson, who went to his grave well before Napster; and (2) to protect the right and opportunity of others to build on previous works.
I personally think it makes sense to require works to return to the public domain at a time when they still have some currency (and in the case of software, potential usefulness). And before it becomes impossibly difficult to track ownership of minor works: there’s apparently a lot of stuff out there that nobody’s making money off of, but can’t be reprinted because it’s next to impossible to locate who the current rights-holder is. IMHO, even the old 56 years (including the renewal) is pushing it a bit; life-plus-anything is far too long.
Spiritus Mundi raised some very strong arguments for long terms of copyright protection, that I was unable to counter at the time, in this thread. (I’m not claiming I can counter them now. I just haven’t had time to re-read the thread.)
Thank you mobo85. I was going to mention the same thing, but I see you’ve beaten me to it.
Dewey Cheatem Undhow, I’ve got an idea. How about a copyright is good until for the life of everyone now living on the planet plus 20 years. We can call it the law of copituities and ensure that no one understands copyright law!
Seriously though, I think you’re attacking this problem from the wrong direction. Is Life +50 years better or worse than Life + 70 years? To me it doesn’t matter.
What concerns me is how we get around those copyrights. Fair use, for instance. There are passages in the Digital Millenium Copyright Act which absolutely terrify me. Now legal ways for companies to invade MY computer, search through MY files, all to see if I’m “stealing” anything. Fair use, schmair use. If a worm finds a theoretically stolen file they will contact my internet provide and try to get my kicked off the server.
I’m not turning this into a flame war but Bill Gates has, among other things, bought up all licensing rights to a vast majority of art galleries around the world. He’s soon going to be opening up a website for artwork. You want that Van Gogh to go in your kid’s school report? Pay Bill a quarter. Again, you can flush fair use down the toilet.
My point here is that when you get rid of fair use, that’s the ball game. It’s all over. 50 years? 70 years? What’s the difference then?
BTW, the Constitution says Congress’ power is to “promote the Progress of Science and useful Arts,” and the means it’s given to do so is to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.
Suppose, as a thought experiment, you start at zero and gradually extend the length of the term of copyright. Two things happen for each additional year you lengthen the protection by: (1) the incentive to future Authors (in the broad sense intended here) increases - rapidly at first, then gradually less over time; (2) the ability of future Authors to build on the works of earlier Authors is reduced by virtue of being postponed.
At some point, the lines cross - the extra degree to which creation of useful works is promoted by extending the term of protection to existing authors is less than the resulting detriment to creation of works that would build on the originals.
At what point, for instance, should the world of Gone With the Wind go from being the private property of Margaret Mitchell and her heirs, to being part of our shared cultural resources? The courts did an end-run around this for the recent novel, The Wind Done Gone, by defining it as “parody”, which it assuredly wasn’t - it was a serious work taking place in the world that Mitchell created in 1936, and which was turned into the familiar movie in 1939.
The language of the Constitution suggests that it should not be the right of the original author, heirs, or corporate copyright owners to decide into the indefinite future who may attempt to expand on the original work, but that Congress’ task is simply to decide at what length of term the additional incentive to the original authors is less than the reduction of opportunity to new ones who would build on their work. It’s hard for me to believe that point wasn’t crossed many years ago, in the case of GWTW (protected until 2019 by Sonny Bono) or Sherlock Holmes (who escaped Sonny’s clutches a mere two years ago), or any other contemporaneous works.
I’ve heard this rumour too. I’m not quite sure what he’s thinking, though. First of all, museums typically don’t own the copyright in the works they display. Unless it is expressly transferred, the copyright belongs to the artist even after he or she sells the original work. This goes double if the work is already out of copyright. The fact that you own a Rembrandt gives you no rights whatsoever over the image itself. In other words, museums don’t own any “licensing rights” that they can sell. You can make copies of The Mona Lisa/La Gioconda all day long and there is nothing either the Louvre or Bill Gates can do about it.
While photographs are typically protectable under copyright law as works of art in themselves, there is even an excellent argument to be made that photographs of out of copyright material are not protectable to the extent they accurately depict the work itself. In other words, Bill Gates can assemble as large a collection of old masters as he likes, but it won’t be protected under the copyright law. He might, possibly, get some protection under the various new database protection acts but that’s another question.
BTW, the 1976 copyright act which extended copyright protection to life+50 was necessary to bring the U.S. into compliance with the Berne convention, which the U.S. subsequently signed in 1988.
Copyright works normally for thirty (or some other number) years, but after that the holder of the copyright must pay a yearly, always increasing fee to the government to maintain it, say a million dollars for every year after thirty.
Suppose I write a book. For thiry years I get a free copyright from the government on it. On the 31st year I would have to pay one million dollars to maintain my license. On the 32nd year I would have to pay two million. On the 33rd year, three million, etc. If I ever missed a year of payments, then the work immediately enters the public domain.
Advantages: The allows companies who are leveraging their older works in a financially sound manner to hold on to their copyrights while forcing stagnant works that aren’t generating money (public value) into the public domain.
Disadvantages: The government would have to create a pretty huge organization to run the system.
Why should anyone expect their work to be protected for his entire life? How does this promote progress? Someone can create a single work and derive income from that single work for the rest of his life–no more progress of science or arts for that person.
It seems like the founders picked a number (14 years with an optional 14 year extension) which was just as arbitrary then, but at least wasn’t as heavily motivated by large corporations (as opposed to real people). It seems that scaling the amount the founders suggested by the change in life expectency is reasonable. What was life expectancy in the 1780’s? 50-60? 40? How many of those were working years? Scale that to today’s standard of living, and then we can work with something.
This issue has been discussed a lot on slashdot.org. One of the points raised is that with copyrights getting so lengthy, it’s quite possible that no extant copy of the work exists once the copyright expires, and hence it cannot enter the public domain. Some have suggested that if the owner of a copyright does not make their work available for a nominal fee, then they forfeit the copyright–with an upper limit to the time of course. That way there’s at least no worry about the permanent loss of the work.
I won’t even get into the issues of fair use. That’s beyond the scope of this discussion.
It certainly won’t be if they get patents, rather than copyrights. The disparity between the two forms of protection, 20 vs 90 years, makes a mockery of claims that the issue has anything to do with the sanctity of intellectual property. If twenty years is inventive enough to encourage a company to invest millions into new drug research, it should also be enough to encourage Walt and friends to draw a new cartoon character once in a while.
