Copyright protection was for 50 years. Then in '76 they extended it by law to 75 years. Then in '98 they extended it to 95 years for corporate held copyrights.
So, are they gonna prolong this charade forever? Will film and music ever become public domain?
I think the fact that mass media and consumerism has developed to the point it has, perhaps they’ll extend it forever. If a recent lawsuit had been successful, then the retroactive extension of copyrights in '76 and '98 would be knocked down, and any movie or audio recording copyrighted before 1946 would become public domain. Would they really allow Citizen Kane to be public domain? Not likely.
Never in the history of man has there been such capacity to turn a 95 year old work of art into a big revenue generator. Will the corporations really allow themselves to let go?
The Copyright Extension Act was sponsored by Sonny Bono, and was basically a billion dollar gift to Disney. Then they rubbed him out by putting a tree from Toontown on the slopes. At the last second, it stepped into his path.
Just to join in the chorus of cynicism here. Congress will extend copy right protection toward the far horizon as long as the industries that profit from extended protection give money to Congressmen. Sooner or later the Supremes will hit a case where the length of protection is tantamount to perpetual and the Supremes will put a stop to it. Of course, that line may have Sleeping Beauty protected well into the 22d century. Clearly the founders did not have anything specific in mind when they said that copy right shall be limited—just some ephemeral limit, or so say the original intent types.
Haven’t had the energy to wade through the Eldred decision. But it’s hard for me to buy the idea that the ‘original intent’ of ‘limited times’ wasn’t in relation to that most fundamental of yardsticks, the typical human lifespan.
Speaking of original intent, the clause pertaining to copyrights and patents gives Congress the power to ‘promote the progress of science and useful arts,’ with the means being securing exclusive rights for limited times to the authors and inventors. I did notice that the Eldred decision effectively rewrote that clause, writing out the first part, and giving Congress the power to extend the length of patent and copyright protection, without any showing that the extension promoted the progress of anything.
Wrong. What the Court did was to hold that so long as Congress had a rational basis for concluding that the extension promoted the progress of science and useful arts, the extension is constitutional and would be upheld. The Court found that Congress did have such a basis, and its extension of the copyright term was constitutional. The Court can’t overturn laws just because they feel they are bad policy.
And this is basically the point - the length of copyright is a policy decision, not a constitutional one. Maybe, maybe, there is some point at which a copyright term would be effectively perpetual, but it would be a very serious thing indeed for the Supreme Court to overturn a law simply because they think it’s a bad policy. Reasonable minds may disagree as to what the appropriate length of a copyright term is, just as they might disagree about the appropriate rate of taxation, pollution emissions, defense spending, etc. Congress is the body charged with weighing those opinions and passing a law that it believes strikes the right balance. If the Court overturns a law because it believes Congress struck the wrong balance, it is basically substituting its judgment for Congress’ judgment. Unless we’re talking about a separate constitutional violation (e.g. that the law offends equal protection), that’s a very serious thing. It’s nine unelected, unaccountable, life-tenured judges substituting their judgment for those who are elected to do the job.
So much of the bellyaching about the Sonny Bono Act can basically be summed up as “Waah! I wanna copy music! I wanna copy movies! I wanna copy Mickey Mouse! But the meanie media companies are so big and rich and strong and they get Congress to pass new extensions! We need the Court to protect us! Waah!” If another extension law comes up, those opposed should mobilize those that are interested, and make their voices heard. If enough people really care, or can be persuaded to care, the law won’t pass because, guess what, Congresscritters are accountable, are not life tenured, and have an incentive to listen to people. I can vote for my Congressman, I can vote for my Senators, but last time I checked, I didn’t vote for anyone on the Supreme Court.
While some (like jeevmon) will applaud the Eldred decision as a kind and just showing of judicial restraint, the decision says congress could make copyrights last one billion years if they so desired.
And no, it is not about “wahh I wanna copy music and mickey mouse.” It’s about preserving the social contract copyright holders entered into when they initially created their work. They shouldn’t keep getting “gifts” every couple of years in free extensions of their term. If you and I enter into a contract, I don’t get to unilaterally change a term of the contract every couple of years to my advantage without you also getting some benefit. Also, and most importantly, is that Mickey Mouse came from the public domain. So did snow white and most of disney’s other “classic” movies/characters. They had no problem copying the Brothers Grimm. The public domain is vital to the creativity and free flow of ideas in our culture. Ulimited copyright terms (or constantly extended ones - no difference) destroy the public domain and ensure nothing will ever enter it. It’s horrible.
But the “gifts” you refer to are coming from the entity that is authorized, empowered and, most importantly, elected to represent the public and the public interest. That’s Congress. The Courts can review them to decide if they’re constitutional or not, but can’t review them to decide if they’re good laws. And there’s no billion year term under discussion, so raising that bogeyman simply
So, your contract analogy doesn’t wash, because to the extent any revision of the “contract” is occurring, it is occurring because of mutual consent between the copyright owner and the public’s representative, i.e. the legislature, a/k/a Congress. If you feel that Congress is not acting in the public’s interest in this regard, then change the Congress. Our political system provides a means to do that every two years. And if enough of the public agrees with you, things can and will change. And if the public doesn’t care, your position is essentially analogous to the person who believes that the public interest will be best served by a flat tax or by eliminating the Department of Defense.
Ya know if Disney had been around in ancient Phoencia 4000 years ago, we would be paying Michael Eisner 5¢ each time we type an “a”
Yes this is a policy issue rather than a constitutional issue. But how does this second extension of copyright on existing works “promote the progress of science and useful arts”? Is Congress waiting for Walt to thaw?
Jeevmon the “don’t blame congress because they represent and are elected by the people” line of reasoning is nothing more than idealistic. Sounds nice and fluffy but we all know it’s bullshit. As long as Disney can afford to pay congress for copyright extensions every time Mickey is facing the public domain, the will of the people is thwarted. To make this argument is to ignore reality and throw pragmatism out the window.
As is the constitution. The Copyright Clause in the Constitution does not authorize Congress to perpetually extend copyright terms. It says “for a limited time” – and if it’s understood that your work will never fall into the public domain then congress is acting unconstitutionally. Perpetual <> limited time.
**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[.] **
Not only does this enumerated power require the terms to be limited, but it specifies the sole purpose of granting the limited monopoly of intellectual property rights. Extending a term after the creation of a work does absolutely nothing to promote the progress of science and useful arts. The work has already been created; granting it a longer term steals from the people and re-rewards the creator who has not added anything to the work since the original grant of copyright.
I believe there is a Constitutional point here: if a copyright term can be extended retroactively, if it’s only limited by the future decisions of Congress, is it really “limited” at all as that word is used in the copyright clause?
[WARNING - Factoid that needs confirmation from a legal professional]
IIRC, any contract with a life over 100 years is considered perpetual in common law. Since copyrights are now limited to 95 years, they are of a “limited time” and therefore constitutional. If Congress tried to extend copyright life over to over 100 years, it would considered perpetual and would probably be thrown out as unconstitutional.
So there may be hope that in twenty years, we’ll finally see that porn version of Steamboat Willie we’ve all been waiting for.
It’s not so much an issue of this happening at a certain point (i.e. term longer than some vaguely defined value X), but rather an issue of this happening as a result of a pattern of infinity-by-iteration.
It’s rather like a three-wishes story that ignores the (usually implicit) rule against meta-wishes (“I wish for a billion dollars and peace on Earth and three more wishes and for the IRS to forget that I exist and a couple of hot bi babes in a tub of lime jello and three more wishes and…”).
If the holder is a corporation. If the copyright is in the name of an individual, it’s life plus 70.
For instance, if either Mick Jagger or Keith Richards is alive in 2030, then it won’t be legal to reprint the lyrics to the 1965 hit “Satisfaction” on your website without permission until 2100 or later.
I understand that complaint, but each one of those extensions is a separate legislative act, with Congress (supposedly) balancing interests each time. It’s not like the copyright law contains a built in provision that every 20 years, copyright extends by 20 years. A different Congress has to vote on it on each occassion, so it’s by no means a self-fulfilling prophecy. Courts can hold individual laws unconstitutional, but there is no tangible case or controversy to adjudicate when it comes to a pattern of Congressional actions which, if continued into the future, might lead to an unconstitutional result. A court can’t strike down a law that hasn’t been passed yet simply because it might emerge from a legislative pattern.
If there is some absolute limit short of literal perpetuity above which copyright cannot go for constitutional reasons, and a new law is passed creating a copyright term that exceeds that limit, then that law could be declared unconstitutional. But if each newly-enacted term would be constitutional if passed as a new law, the fact that there is a pattern of continual extensions does not, by itself, create a constitutional flaw.
The word “retroactive” gets misused an awful lot in these discussions, probably to make it sound like Congress passed an ex post facto law in extending copyrights in force. It’s a glib sleight of phrasing with no merit. All that happened was that an existing benefit was extended. That’s all. And it happens all the time in so many areas of the law.
As to whether the extension promotes the progress of science and useful arts, there is no real answer to whether the extension promotes the progress of science and useful arts in an absolute sense. A lot of people with a lot of different opinions have a lot of ideas on the subject, and fancy models and graphs and charts and statistical regressions, and chest-thumping platitudes about the people’s will and the public interest (neither of which, incidentally, appear in the copyright clause), and doomsday prophecies, and demonization of Disney, peer-to-peer music service users, and other assorted villains to support their views.
Those who oppose the law argue that in an absolute sense, there is no benefit to extending copyrights in force. I disagree. There are two benefits that I see immediately. One: archival restoration. If there is a danger that some works may be lost forever before they would fall into the public domain, giving the author an incentive to restore those works ultimately inures to the public benefit. Some may see that as a minor benefit, others disagree. I’m not taking a position either way, other than to recognize that it is a benefit that may or may not be outweighed by other considerations.
A second benefit that I see, as a practitioner in this area, is harmonization. There are several benefits that a life plus system has over a fixed term. A fixed term necessarily depends on having something to fix from. For a creative work, this could be the date of creation, the date of publication, or the date of registration. The date of creation can be a highly disputed and litigated topic, dependent on such issues as whether a nearly complete draft represents the date of creation, the first draft, etc. The publication date also puts excessive emphasis on publication, and denies benefits to unpublished works. An author should not be denied the right to an injunction or damages against someone’s unauthorized use of creative material that the author, for whatever reason, has elected not to share. It creates a perverse dynamic- in order to stop someone from publishing their private papers, an author would have to publish their private papers. Registration shares the same flaws as publication and puts excessive emphasis on a formal process. (And to pre-empt those who will say that we mandate “registration” for patents, let’s remember that patents actually protect ideas, which copyrights don’t. It’s more serious to say that someone can’t use compound X to improve the manufacture of substance Y than to say they can’t make a porn version of “Steamboat Willie.”) For works whose dissemination is not immediately sought, registration (and its concommitant requirement of deposit copies) is not desirable and would defeat the point of keeping private papers private.
A life plus term has several benefits over fixed terms. First off, death is generally a recorded event in the United States, so the time for measuring a copyright becomes easier to compute (in the case of dead authors). Second, the whole body (slight pun intended) of an author’s work would pass into the public domain at the same time, instead of arriving piecemeal. Makes estate planning and administration a LOT easier. Third, having a term based on the author’s life prevents potentially unfair forfeiture of an author’s work while he/she is alive. As a simple example, if an author publishes three books of indifferent or middling success, but then a fourth book is the blockbuster that also increases the demand for the earlier works, a fixed term could deny the author the benefit from the investment (in time and opportunity cost) he/she made in those early works. We generally don’t require other people to forfeit potentially productive assets while they are alive, and a fixed term could potentially create the equivalent of a forfeiture.
If we say that life plus 50 is OK, and life plus 70 is OK, but extending life plus 50 to life plus 70 is not OK, a two tier system would be created. Some works would get life plus 70, and others would get life plus 50. But how to distinguish? The only way would be to reintroduce one of the other variables (creation, publication, or registration) to differentiate between the different terms of protection afforded to different works. But that then reintroduces some of the very problems that a life-based term was designed to cure.
So, there are benefits to extending the terms of existing copyrights. There are also detriments. Works that would have passed into the public domain won’t. That is a detriment. I’m not denying it. If we were talking about pending legislation, I might well side with those who say that the law is a bad idea overall.
But we’re not talking about pending legislation. We’re talking about an enacted law. So then, the question is not whether or not it is a good policy, but whether or not it is an unconstitutional law. Those who say it is argue that it does not promote the progress of science and useful arts, and therefore is unconstitutional. But, as noted above, there are benefits to extending the life of copyrights in force, and detriments, and room for debate on either side. There is a difference of opinion on whether the law promotes the progress of science and useful arts. Someone has to balance the pros and cons and make a decision that it does or doesn’t.
Now, who gets to do that? On the one hand, we have Congress. Elected to pass laws, accountable, not guaranteed jobs for life, who must periodically answer to the voters. On the other hand, we have the federal judiciary. Appointed (not elected), guaranteed jobs for life, and not accountable except in impeachment situations.
What those opposed to the law wanted the federal courts to do was to come in and says Congress, we looked at the same facts you did, and believe that you got the interest-balancing exercise wrong, and your law is therefore unconstitutional. That’s a pretty serious thing for the unelected, unaccountable judiciary to do. It’s basically a plenary review of Congress’ balancing of the interests. The courts should and do pause before engaging in that kind of second-guessing of Congress’ prerogatives.
On the other hand, extending copyrights can also do the exact opposite.
Don’t expect to see Song of the South available on a digitally remastered Disney DVD any time soon… they’d like the world to forget it was created in the first place. But if it were to fall into the public domain, the few copies that are out there could be legally copied and distributed.