US Copyrights: what are "limited times" ?

Great Debates
1

“Congress shall have power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
– US Constitution, Article I, Section 8

On February 19, the Supreme Court agreed to hear arguments in Eldred v. Ashcroft, in which the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) is being challenged.

According to the Appeals Court decision,

To me, the essence of the matter is stated in a dissent by Circuit Judge Sentelle:

What Congress gets to do under the Copyright Clause is to promote the progress of science and the useful arts. The means by which it’s empowered to do so is by granting patents and copyrights for limited times.

It would seem to me that any extension of the term of a patent or copyright beyond that sufficient to stimulate creators of works and inventions to create works and bring them to market, is in excess of the powers granted by the Founders to Congress. And that in passing the Sonny Bono CTEA, Congress was acting well in excess of its authority.

It would further seem to me that even long-ago extensions would hardly pass muster: who would fail to write a novel or a poem, or record a song, because the work would go into the public domain after only 42 years (as the law was from 1831-1909) rather than 56 (1909-1976)?

And at the very least a ‘limited time’ should be measured against the span of a human lifetime: if I can live out my threescore and ten years, and works that were written before my birth aren’t yet into the public domain when I die, then what’s ‘limited’ about that copyright term, in any practical sense?

Personally, I’d say the once-renewable 14 year term of 1790, the best available indication of ‘original intent’, is quite sufficient for the Constitutionally enumerated purpose. And if it suffices, then any grant of a longer term is beyond Congress’ power.

2

28 years is plenty. Copyrights are not about meal tickets.

Erek

3

Not to mention, Michael J. Doonesburycould accept without guilt the copy of Beggar’s Banquet that his daughter Alex ‘pirated’ to give to him.

4

So when’s Mickey Mouse gonna fall into the public domain? :slight_smile:

5

The article fails to mention the most important part of the case: the Bono Act increased the copyright of a work created by a corporation from 75 years to 95 years. Some say this is mostly Disney’s fault, as Steamboat Willie would fall into the public domain next year on the old terms. With the Bono Act, it is protected until 2023. (Although one interesting article I read makes the case that Mickey Mouse is already in the public domain, because Disney did not put correct copyright notices on the films, and none at all on some early merchandise.)

6

What’s the hurry to get works into the public domain? I see no reason why people other than the artist should ever profit from the artist’s creation without recompense. “Lifetime of teh artist” sounds about right to me, with a limited term (measured from creation/publication) of protection for the artists estate should the artist die soon after creating the work.

I really can’t see any downside to society from protecting intellectual property. Perhaps one of you could explain to me why it will create a better world to place art more quickly into the public domain.

7

If the Supremes uphold the Sonny Bono law, then 95 years after he was created, which is still 2-3 decades off, IIRC.

8

Why, so we can all fill our hard drives, guilt-free.

9

Maybe it isn’t too late to burn all of Shakespeare’s work.

No, seriously, the Bard took advantage of works his (fairly recent) predecessors had done, and built on them.

As the Constitution says, the purpose of the patent and copyright laws is to promote progress. Even in the arts, it’s easier to progress when you don’t have to start from scratch.

There’s one obvious upside to getting works into the public domain after a reasonable time: we, the people, get to enjoy them. Another is that scholars don’t have to track down copyright-holders on obscure decades-old works before they quote them. And a third, like I’ve said, is that each new generation of artists is free to create works based on the previous generations’.

Jefferson had some comments directed specifically toward this issue: he didn’t believe ideas should be owned, and didn’t believe they naturally could. (He’s proved to be more right than anyone expected.) He felt that ideas were not appropriately subject to monopoly, but that a brief monopoly was a necessary evil, IIRC. (I’ll see if I can dig out the Jefferson quotes I’ve read in the past.)

10

Thomas Jefferson, 1813. (Quoted in this Findlaw commentary.)

Other useful links: this MSNBC piece discusses other FFs’ understandings of the reasons for limited copyright protection, and this Boston Globe piece discusses the problems Eric Eldred ran into in compiling his digital library as a result of the Bono Act, which ultimately led to his being the lead plaintiff in the case under discussion.

11

I am listening to a Dave Matthews CD right now that I purchased. I am enjoying it quite well. Last night, I watched a movie that I purchased, enjoyed that too. How does a copyright prohibit you from enjoying something. Or do you only enjoy things that you get for free?

Or plagerize them

With no protection, why would anyone wish to make a career out of creating new works of art? Take away an artists protection and they will be forced to find another way to earn a living, giving them far less time to create.
Personally, I think a reasonable length would be 50 years or at the time of the artists death, whichever comes last.

12

Shorter copyrights seem to have benefitted us all in the past. Why should it be any different now?

13

There’s a difference between “taking advantage” of previous artworks and “plagiarizing” them. Shakespeare was able to write a whole passel of plays, plus a plethora of poems, without plagiarizing.

As for scholars, that is why we allow “fair use”. Now, if you want to argue that “fair use” needs to be expanded/modified then I will probably be right there with you.

I understand the at we, the people, like to enjoy our stuff for free, but I cannot find in that a compelling reason to divorce the artist from the source of his livelihood while the artist yet lives. One thing to remember about copyright standards of ages past is that literacy rates were low. Literature was to a large extent the pasttime of the “leisure classes” (or at least the poor sons of the same). While exceptions certainly existed, very few “working class” folks aspired ot make a living from literature. We have a somewhat more egalitarian view of art these days, and the laws have adjusted accordingly.

BTW, I have great admiration for many things Thomas Jefferson said and did, but I think advancing a slave holder as an authority upon what nouns should be subject to ownership is a bit of a stretch, don’t you?

14

How it does so is by enabling the copyright owner to create an artificial scarcity by setting the price as high as he likes. As demand slackens, price doesn’t necessarily diminish.

I would like a copy of the 1997(?) O.M.C. song “How Bizarre”, for instance. Now it’s true that even by my lights, this would not be in the public domain for many years - but that’s irrelevant to the question I’m answering.

Briefly, the single was available as a single, probably for $2 or $2.50, when it was first released. Now, demand for that piece of music has slackened, but due to the monopoly nature of copyright, I’d have to buy the album it’s on, for $10 or more, to get the one song. I’d pay for it, but only within reason. Same with a hundred songs like it. This is one way copyright restricts my enjoyment. You asked.

And needless to say, with older stuff that was approaching the end of its protected term, if such a thing happened nowadays, availability could be expected to increase, and price to drop, as the copyright holder strove to make a few additional bucks off his monopoly before it expired.

Here you were referring to scholarly use of material. Plaigarism, from that perspective, is a matter of academic integrity, and academics handle such matters in a manner that has nothing to do with ownership issues.

Straw man. No one here has taken that position. I’ve advocated 28 years of protection.

Well, nice, but why? Is this defensible under the Constitution? As a matter of natural law? From a practical perspective?

I mean, we all have our druthers, but if this was a poll, it would be in IMHO.

15

This sentence seems to betray a strange understanding of what a writer does. The only way this becaomes an argument for the absence of copyright protections is if it can be argued that if Shakespeare had been required to yield some recompense to Brooke or Holingshead (the latter particularly dubious, as it is a work of history), then he both would have declined to do so and would not have produced another work of similar artistic merit.

Frankly, one could argue just as easily that even creative geniuses get lazy and their body of work benefits from factors which encourage them to originality.

16

And would his use of the works of others he utilized have been ‘fair use’ today? Sounds dubious - unless he called his stuff ‘parody’ in the manner of The Wind Done Gone.

Oops, I goofed. You’re absolutely right - quotations for scholarly use fall under ‘fair use’.

Actually, in Jefferson’s lifetime, a rapidly increasing number of Americans were making their living by writing. I recommend All On Fire, Henry Mayer’s bio of William Lloyd Garrison, on this score, and IIRC, Joyce Oldham Appleby’s Inheriting the Revolution : The First Generation of Americans had a few things to say on the subject. Right out of the cradle, America was characterized by intellectual ferment, and amazing numbers of Americans wanted to join in the debate, which involved reading - and writing.

But FWIW, the more readers there are, the greater a market there is, and the more swiftly a well-received writer can translate his investment of time into money.

I agree that nobody’s words should be genuflected to simply due to the name of the speaker, be it Thomas Jefferson or Cecil Adams.

But since my main thrust is simply that under the Constitution as written, the term of a copyright should be short, Jefferson’s words - regardless of his holding of humans as property - have direct applicability in enabling us to understand what the FFs had in mind when they wrote Article I, Section 8.

Now if you’re arguing that the FFs got it wrong and that the Constitution should properly be amended, then we go to arguments of practicality, natural law, and the like, and Jefferson’s opinion and $2 will get me a cup of coffee at Starbucks.

17

Business is about supply and demand. I see CD’s all the time that are marked down from their original price. It seems that capitalism is responsible for the price, not “artificial scarcity”. Perhaps I’m just not following though.

Actually, I think your original post states your position as 14 years. **mswas[/s] used the 28 year figure.

plagerism? :wink:

I believe from a practical perspective. And I understand that this isn’t a poll but you stated what you though was a reasonable length of time in your post and I was just offering my opinion as an artist.

18

We don’t really know what Shakespeare’s means were, since it’s not a given that Shakespeare wrote Shakespeare (and forgive me if I stay out of that fight). But it’s a reasonable assumption that a requirement to pay Brooke or Holingshead would have certainly made him think twice about using their work in creating his own; whether or not he would have decided not to do so, we can’t know. But no matter what you’re doing, it’s hard to believe it isn’t easier if you aren’t starting from zero. Strictly from a standpoint of effort and probability, it’s hard for me to buy into the argument that barriers or cost involved in using his sources wouldn’t have had a net negative effect on Shakespeare’s work.

It’s hard to see how one can argue that from Shakespeare’s example. Maybe the Bard would have been even better had he been denied his sources, but since he’s generally regarded as the standard by which the rest of English literature is measured, that’s hard for me to buy.

19

Perhaps I need to read more carefully.

:o

20

Whether Shakespeare’s reference of Brook’s poem would be fair use I sdo not know, since I do not know whether that work is in fact the sole original source of teh Romeo and Juliet story, nor do I know the extent to which Shakespeare used Brook’s language. I did find a comparison of usage between Hollingshead’s work and one of Shakespeare’s historical plays, and I think that one would quite definitely fall under fair use. Hollingshead, as a historian, reports teh tesxt of a speech. Shakespeare has a historial character making said speech. Works for me. I could just as readily write a story about John F Kennedy in which he calls himself as German pastry. Public words spoken by public figure, etc. etc.

I agree that there was a rapidly developing interest in literature and writing (pamphleteering, even ;)) during and after teh American Revolution. Developing, of course, is the key word. Developing situations often call for developing solutions. Leteracy rates have continued to rise, and Congress has seen fit to extend teh duration of copyright protections several times. The argument that the FF got all the details right in 1790 is not one that I find particularly compelling. The FF were pretty bright guys, actually, and they seemed to understand teh limitations of their judgment. Thus, they write a clause into the Constitution establishing the power of Congress to protect coopyright; they set otu the purpose of this power; but they do not write a “time limit” into the Constitution. Congress gets to decide the details, and I see no reason to think that the Congress of 1790 had a better handle upon the relationship of copyright and artistic creeation in the modern world than any Congress post 1831.

This does not require any ammendment to the Constitution, nor does it require thinking that teh Founding Father’s got it wrong. They got it right. They set teh principal and allowed for future Congressional “generations” to apply it as deemed necesaary. Frankly, I don’t see anything in your Jeferson quote that speaks to duration at all. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. No term limit stated or implied.

It’s not hard at all. Compare the plays which Shakespeare might not have been able to produce given stronger copyright protections with those which would not have been afffected. (Alternatively, compare specific sections/passages within a “compromised” work) If you cannot demonstrate a clear artistic superiority to the “compromised” works/passages, then you have little support for the argument that the lack of copyright protections were necessary for Shakespeare to produce lastingn and powerful works of art.

Alternatively, you might try to make a case for sheer volume of output, but this would reqwuire you to demonstrate that a large majority of Shakespeare’s work is “compromised” by usage which would not be allowedd under modern copyrights.

Simply saying “Shakespeare borrowed from other writers” is not informative to the question, “do strong copyright protections retard thedevelopment of art?” Bad writers can borrow from others, too, but that by itself is not evidence that weak copyright protections retard the development of art.