June 2002
On February 19, 2002, the U.S. Supreme Court agreed to hear the appeal from the U.S. Court of Appeals for the District of Columbia in Eldred v. Ashcroft,[1] the case challenging the constitutionality of the 1998 amendment which extended the term of copyright by an additional 20 years.[2]
The Sonny Bono Copyright Term Extension Act (CTEA) extended the term of copyright from life of the author plus 50 years to life plus 70 after extensive lobbying from the copyright owner community, particularly the motion picture studios. One of the primary reasons for copyright protection is that it “incents creativity.” How does term extension incent a dead author to produce more works? Some have referred to this as the Shirley MacLaine defense to the CTEA, “I will create after I am dead.”
Another reason Congress gave for enacting this measure was to harmonize U.S. law with that of the European Union. In Europe the theory of protection has long been life of the author plus two generations of her heirs. Because life expectancy has increased, and people are waiting longer to marry and have children, the EU had tacked ten years onto each generation a couple of years earlier.
The most unfortunate part of term extension is that it is retroactive. It will be the end of 2018 before any works will enter the public domain. The 1976 Act provided that each year, another year’s works went into the public domain. But for the CTEA, works from 1923 would have gone into the public domain at the end of 1998. Now there is a 20 year hiatus on expansion of the public domain.
Mr. Eldred, the owner of Eldritch
Press, takes public domain works, digitizes them and adds hypertext references
and then makes them available free on the web.[3] He sued the government alleging that the
CTEA is unconstitutional since it delays when works pass into the public
domain, including some very old works from the early 1920s which Mr. Eldred
wanted to publish on the web. The
federal district court ruled against Mr. Eldred and upheld the
constitutionality of term extension.[4] He appealed to the Court of Appeals for the
District of Columbia and lost again.
The U.S. Constitution in Article I, section 8, clause 8 states, “Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the rights to their respective writings and discoveries.” This clause embodies three important policies: the promotion of learning, protection of the public domain and access to copyrighted works by the public. If a Congressional enactment is not directed towards these goals, then it is outside the scope of Congressional power. The Supreme Court has consistently held that the purpose of copyright is not single dimension. Instead it has two aspects: the economic interest of the author and the promotion of learning, i.e., the public’s interest.
What is truly at stake in this case is protection of the public domain which is absolutely critical to scholarship and research as works are built on earlier works. Such publications form the building blocks for creative individuals, writers, etc.[5] As Jonathan Tasini, president of the National Writer’s Union and named plaintiff in New York Times v. Tasini[6] said three important things about why he opposed term extension and believed that it should be held unconstitutional. According to Tasini, human knowledge should be shared, cultural expression belongs to the public and the intellectual wealth of a nation cannot be locked up as the property of a few.
The Court of Appeals ignored an important Supreme Court case dealing with the patent part of the constitutional clause, Graham v. John Deere.[7] In this case the Court noted that the clause is both a grant of power and a limitation. “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby.” This is precisely what the D.C. Circuit did. It upheld the expansion of the copyright term without considering the copyright policies of promotion of learning, protection of the public domain and ensuring public access to works. Nor did it explain why the clause should be read to limit congressional power to enact patent legislation but imposes no such limit on the power to enact copyright legislation.
The term of copyright has been increased several times over the years. With the single exception of the CTEA, each of these extensions occurred in the context of a total revision of the Copyright Act. These increases were based on different policy considerations. The CTEA, however, was a simple extension of the term to already existing works. The purpose of copyright is promote the creation of new works, not the preservation of the copyright in older ones.
The constitutional clause permits protection only for a limited term. If one measures the copyright term against an ordinary life – practically nothing produced during one’s lifetime will pass into the public domain during one’s life. A millennium is also a limited time, but not when measured against a typical life. Jack Valenti of the Motion Picture Association of America has been quoted as saying that Congress could extend protection to one day short of eternity and still be within the constitutional provision. No wonder Tasini and others criticize what has become corporate copyright and not an author’s right.
A decision is expected in the case after October, 2002. Many were surprised that the Supreme Court agreed to hear it, and hopes are high among opponents to term extension that the amendment will be held unconstitutional. If the Court does not so rule, one must wonder whether in another 16 years copyright holders will again attempt to extend the term by 20 years. This despite the constitutional prohibition on perpetual copyright.
[1] 255 F.3d 849 (D.C. Cir. 2001).
[2] See “Copyright Corner,” January, 1999.
[3] To view the Eldritch Press website, see http://www.eldritchpress.org/. “Here are free, accessible books. Read them and go in peace.” This is the first statement a reader sees on the website.
[4] 74 F.Supp.2d 1 (D.D.C. 1999).
[5] See “Copyright Corner,” July 2001.
[6] 533 U.S.483 (2001). See “Copyright Corner,” September and October, 2001.
[7] 383 U.S.1 (1966).