Copyright Terms

Copyright Terms:

In 1998, congress enacted the Copyright Term Extension Act (CTEA).  This act extended the copyright term to the life of the author plus 70 years for individual works.  This extension was an additional 20 years over the protection term assigned in 1976.  For corporate authorship, the term was extended to the lesser of the two following terms: 95 years after publication or 120 years after creation (the 1976 limits were75 years) (U.S. Copyright Office, 2011).  Since 1998, the constitutionality of this act has been called into question repeatedly.

The debate is complex.  On one hand, opponents of the act argue that CTEA does not respect the constitution’s mandate to secure copyrights for a “limited time”, the act inhibits free speech and it violates the public domain.  Proponents of the bill argue that an increase in life expectancy should be accounted for in copyright and that in order to remain competitive with Europe we should maintain similar copyright terms as they have.  Proponents also argue that the CTEA increases creative output by creating financial security for authors; also, by increasing the term limits the CTEA makes it harder to simply repackage old works, thus the CTEA demands new creative works.

First, I will discuss a brief history of the copyright terms.  Second, I will review the major arguments that oppose CTEA, and present an alternative to CTEA that supports the return of shorter protection terms periods and the return of renewal requirements.  Third, I will review the proponent’s view of the act and discuss arguments that support the current term limits.  Finally, I will conclude with a solution that will level the playing field and accommodate both the term limits provided in CTEA and the need to enhance the public domain.

I.  A Brief History: Copyright Term Limits

Copyright in the United States has its roots in England’s Statute of Anne.  Like the Statute of Anne, the original intent of the copyright clause was to promote and encourage progress in the arts and sciences for the public good (McDonald, 2007).  In 1787, James Madison wrote the copyright provision into the U.S. Constitution and the first copyright law was enacted in 1790.  This law has gone through four main revisions and most of these revisions dealt with the copyright protection term.  According to the provision enacted in 1790, the copyright term limit was originally14 years with the option of a 14 year renewal; in1831 the term limit was extended to 28 years with an optional 14 year renewal.  The 1870 revision marked the inclusion of art as protected works and it centralized copyright activities in the Library of Congress and in 1909 the renewal term was extended to 28 years.  The 1976 revision was unique because the protection term was extended to the life of the author plus 50 years.  1998 marked the most recent revision, commonly known as the Sonny Bono Copyright Term Extension Act (CTEA).  This revision allowed most works to remain under copyright protection for the life of the author plus 70 years after the author’s death (Okediji, R. L. 2004 & U.S. Copyright office.  2011). The copyright term is the most clearly defined limitation on the copyright owner’s exclusive rights. Unlike other limitations (like Fair Use) the copyright term has specific quantifiable time limits and these limits can only be changed by congress.

Knowing the history of past copyright term extensions is important because the courts have a strong tendency to rely on past precedents.  In Eldred v. Ashcroft, the courts determined that, “Guided by text, history and precedent, this court cannot agree with petitioners [Eldred] that extending the duration of the existing copyrights is categorically beyond Congress’ Copyright Clause authority” (Cornell University Law School, 2003).  Okediji (2004) also notes that Eldred underestimated the “path dependency” the courts have with respect to copyright term extensions.  Understanding the court’s tendency to rely on past precedents is important for both those who oppose and support copyright term extensions because it can help establish more successful arguments with respect to copyright terms.

II.  Opposing Copyright Term Extensions
a)  A Short History of Opposition

Eldred v. Ashcroft is the most notable case that argued against copyright term extensions; specifically, Eldred argued against the constitutionality of the CTEA.  Eric Eldred was a computer programmer who wanted to create a digital library of works that had fallen into the public domain.  Eldred’s digital library was free and was complete with pictures to make the works come alive to younger readers.  After the CTEA past, Eldred found that he would not be able add any post 1923 works to his library until 2019 at the earliest (Lessig, 2004).  Lawrence Lessig represented Eldred and made two primary arguments against the CTEA.  Lessig argued that the CTEA exceeded the power of the copyright clause and that the CTEA did not respect the First Amendment right to free speech (Eldred v. Ashcroft No. 01-618 2003).  Later, in a commentary about his experience in Eldred v. Aschcroft, Lessig states that he should have placed a greater emphasis on the argument that the CTEA violated the public domain (Lessig, 2004).

In Eldred’s defense, Lessig argued that the CTEA exceeded the power of the copyright clause because it did not respect the “limited time” requirement (Eldred v. Ashcroft No. 01-618 2003).  However, the petitioners did not contest the “life plus 70 years” limit; rather they stated that Congress violated the constitution by “enlarging the term for works with existing copyrights” (Eldred v. Ashcroft No. 01-618 2003).  And while they did not ultimately win their case, Judge Sentelle agreed with the petitioners stating that: “[T]here is no apparent substantive distinction between permanent protection and permanently available authority to extend originally limited protection. The Congress that can extend the protection of an existing work from 100 years to 120 years, can extend that protection from 120 to 140; and from 140 to 200; and from 200 to 300” (Golan v Ashcroft No. 01-B-1854).

The petitioners also argued that the CTEA violated the First Amendment right to free speech.  Once the CTEA was enacted, the petitioners were unable to use the expressions that previously they would have been authorized to use (Eldred v. Ashcroft No. 01-618 2003).  Additionally, I argue that by making the copyright term extension applicable to past materials it impacts free speech by generating confusion among the public about what can or cannot be used.  This confusion inhibits the public’s enthusiasm for and willingness to “promote the progress of science and useful arts” out of fear that they will penalized or injunctions will be used against them if accused of copyright infringement (Trunko, 1989).  The issue of confusion limiting progress was also addressed in patent law in Festo Co. V. Kabushiki.  When the CTEA increased the term limits for materials that were scheduled to fall into the public domain, confusion and the fear of copyright injunctions could only increase with it, thus inhibiting free speech.

However, the most compelling argument in opposition of the CTEA came after Eldred v. Ashcroft.  In 2004, Lessig wrote an article for Legal Affairs entitled, “How I lost the big one.” Lessig writes about the heartbreak and frustration surrounding losing a fight that he truly believed in.  Lessig criticizes himself for having overly “scholarly” arguments and reframes his context and proposes a new argument.  He moves to an argument that cries for protection and preservation for the public domain.  Citing the justices that he felt were open to hearing this type of argument, Lessig concludes that if he had made his primary argument a case for protecting the public domain he would have succeeded.

b)  Alternatives to the CTEA.

Eldred’s case focused on the fact that the CTEA retroactively enlarged the term for previously protected works, however it can be similarly argued that the CTEA term limits for future works is equally unjust.  Judge Sentelle’s argument is also valid for future term limits: if Congress can authorize extending the works an additional twenty years now, why not an extra forty or one hundred and forty?  And if Congress can continually extend the limits, how does this support the constitutional requirement to secure copyright ownership for a “limited time”?  The current limits allowed by the CTEA are inappropriate.  I offer that the 1976 limits of life plus fifty years offer a more reasonable alternative.  I would also argue that the additional fifty years should be contingent upon renewal.

The “life” term allows the creator to reap the benefits of their productive creation in the same way any productive business owner might enjoy the benefits of their labor.  The security in knowing that one can reap the benefit of their own work is commonly considered an incentive to create “science and useful arts.”  The “life” term also allows for the increase or decrease in life expectancy.  While proponents of CTEA, like Senator Orrin Hatch, (1997) argued in 1998 that we needed to increase the limits due to an increase in life expectancy, in contrast, now life expectancy in the United States has fallen in recent years (DeNoon, 2010).  Regardless, a “life” term accommodates both the increase and decrease in life expectancy.  Also, the 50 year renewal term would provide for the author’s family, especially in the event of an untimely death in the same manner that a productive business might provide for the business owner’s family.

Making the additional 50 year protection term contingent upon renewal would enhance the public domain and clearly define ownership.  Many works that are copyright protected do not need to be protected after the creator dies.  For example, I maintain an information science blog.  If I die and my husband does not wish to continue my blog or do anything with it, then my blog should be allowed to fall into the public domain so that others may use it to enhance their own creativity.  However, if my husband does see value in protecting my blog, he would have the option of renewing the copyright for the additional 50 year protection term. Maybe he could sell my highly scintillating blog to the two people who follow me!  (This is a joke, please laugh.)  Moreover, the renewal requirement would clearly define ownership help to remove confusion and uncertainty.  It would also aid in enhancing the public domain and reducing the number of needless copyrights.

Finally, we live in a global economy.  In order to remain competitive with our global counterparts, global copyright cooperation is important.  The Berne Convention helps facilitate global copyright cooperation by creating a minimum standard of copyright protections.  Participants in the Berne Convention agree to keep this minimum standard and agree to afford this standard other participants in the Berne Convention.  The limits of life plus a renewal of 50 years would keep the United States in compliance with the Berne Convention.  By maintaining the minimum limits required by the Berne Convention, U.S. copyright holders would have protection internationally (Gathegi, 2012 & WIPO, 1979).

c)  Shortcomings of the proposed limits:

However, the courts have a strong tendency to rely on past precedent and path dependency (Okediji, 2004).  There is no place in the history of copyright where a copyright term was shortened.  Now that the term limit has been extended it would be near to impossible to have it reduced.  Also, shortening the limit over ten years after the 1998 CTEA raised it would cause even greater confusion and more uncertainty in the public about what they could and could not use.

III.  Maintaining the current Copyright Terms

While the academic community is generally opposed to the current protection terms, Sony Bono was not alone in his support of longer copyright protection terms.  And the beat goes on to the tune of expanding the protection for copyright terms (YouTube, 2008).  Senator Orrin Hatch argued that an increase in life expectancy and the trend toward rearing children later in life were grounds for an increase in the protection term.  While life expectancy may have decreased in the United States, the tendency to choose to have children later in life and the tendency for children to remain dependent on their parents later in life has also increased significantly.  According to the Pew Research Center (2011), multi-generational households increased significantly from 2007 to 2009.  The increase in dependents also puts an increased financial burden on the bread winner of the home. By increasing the protection term limits, copyright holders will have more earning potential to care for their families with.

Second, allowing the renewal to be automatic is a great benefit.  Automatic renewals decrease confusion over when and how a copyright should be maintained and automatic renewals decrease confusion over ownership because the copyright would automatically belongs to the original owner’s heir.  To the contrary, renewal requirements place an undue burden on the heir to register a work that previously did not require registration.  It should be our goal to help United States citizens make productive uses of artistic works and renewal requirements hinder their ability move forward efficiently.

Also, in order to remain financially competitive with European countries, it is necessary to maintain similar limits.  While the limit of life plus 50 years does keep the United States in compliance with the Berne Convention, the rule of the shorter term is still applicable.  This rule states that countries with greater limits are only obligated to grant foreign countries with the protection maintained in their country of origin.  Also, as a result of the 1993 directive, countries who are members of the European Union are expected to implement copyright term limits equal to or greater than the life of the author plus 70 years no later than July 1, 1995 (Council, 1993).  If the United States does not maintain equal or greater limits, then American copyright holders could potentially lose twenty years of potential protection. Ergo, to remain competitive the United States must maintain equal limits.

Finally, no one is better equipped to maintain the integrity of a creation other than the creator.  Only J.K. Rowling can really know what Harry Potter is thinking (Karjala, 2006).  Similarly, who is better understood Frank Zappa’s musical intent other than his son Dwezil Zappa (Zappa Plays Zappa, 2011)?  These limits ensure that that the creations can be properly maintained by their creators and the creator’s family.  Also, by maintaining proper protection terms, these limits protect the creative output from inappropriate use or cheap copies.

IV.  Conclusion: A New Solution

There is no historical precedent for shortening the copyright term.  Because of this trend (and because rights holders have strong lobbyists) it would be nearly impossible to reduce the copyright term.  Also, if we tried to shorten the limit after the 1998 CTEA raised it would cause even greater confusion and more uncertainty in the public about what they could and could not use.  At this point, I would not initiate moves toward shorter protection terms.  I think there are more efficient ways to get the desired result.

For example, it might be possible for the legislator to reinstate the renewal requirement (life plus one renewal of 75 years).  While this could foster some confusion, it would be the fastest way to enhance the public domain.  Reinstituting the renewal term would allow many unused or forgotten works to fall into the public domain where they could be revitalized.

Another option would be to push for more rights under Fair Use.  Expanding Fair Use could help offset the damage done to the public domain by the CTEA.  From our readings it seems like there are two types of laws that influence court decisions: legislative law (formal laws that were enacted by a group of law makers like Congress) and case law (laws established judicial rulings in cases).  I would not support a well-defined legislative law regarding Fair Use (this type of law could backfire in the future by being too limiting).  However, I would support direct efforts to expand Fair Use through case law.  For example: if those who value the public domain could be mobilized, they could lobby over individual copyright cases in the court system.  If successful, case law would start to shift in favor of the public domain.

As copyright law currently stands, I think that current copyright law is unfairly tilted in favor of copyright owners (often content industries) and I think the current copyright law does not adequately respect the public domain.  However, it may be possible to level the playing field by choosing battles wisely.  We can either attack the strongest man (try to change large formal laws) or we can bleed the giant by strategically targeting a large number of small battles (focus on smaller court cases).  Since the resources that support the public domain cannot match the resources of the major content industries, I think it would be more productive to make strategic moves toward targeted lobbying around smaller court cases.  Impacting smaller court cases may initially go unnoticed; but as the court decisions in favor of fair use grow in numbers they could make a significant impact nationwide in favor of the public domain.  Technically, with this method it is conceivable that we could generate enough wins for Fair Use to enable a legal precedent to support the public domain in legislation in the future.

References:

  • Eldred v. Ashcroft, No. 01-618 2003 Westlaw 537 U.S. 186 (2003)
  •  Karjala, D. S. (Spring 2006). “The Investiture of Professor Dennis S. Karjala as the Jack E. Brown Professor of Law: Harry Potter, Tanya Grotter, and the Copyright Derivative Work.” 38 Ariz. St. L.J. 17
  •  McDonald, S.F. (2007). Copyright for sale: How the commodification of intellectual propertydistorts the social bargain implicit in the copyright clause.  Howard Law Journal, 50 How. L.J. 541

(Really, I just referenced this to make sure you got my very amusing Sonny & Cher reference. –I’m also banking on the idea that you must have a sense of humor.   If not, I’m in trouble.  Seriously though, it is hard to think of Sonny as a congressman in his white leisure suit.  Poor Sony, the Cowboy’s work is never done…)

  •  Trunko, T. D. (December, 1989). “Remedies for copyright infringement: respecting the first amendment.” 89 Colum. L. Rev. 1940

 

I took copyright this semester and it tried to kick my butt.  It was one of the hardest classes but it had some of the most useful information.  I can honestly say that I read (and enjoyed) all the assigned readings; case after case, I read everything.  I even read many of the footnotes.  I will admit to some level of insanity on my part- but I really enjoyed it.

While there is a large portion of copyright that is hardly more interesting than contract law, there is also a portion of copyright that feels like it is based in human rights.  That is the portion of copyright that kept me up at night.  I like the part of copyright where you see large businesses taking advantage of the way laws are written for the sole purpose of generating profit at the expense of the public domain.  I also like the part where you see how much false ownership is projected onto materials that are 100% in the public domain.  THIS is interesting!

I loved this class, but it was difficult and I worked hard.  I am happy to report that Dr. John Gathegi (Director of the School of Library and Information Science at USF) awarded me with the best compliment I have ever received on my final paper: “Excellent job! This is exactly what I like to see.  Outstanding. ”

I’m down right giddy over this!  So, here is the paper.  It isn’t the most exciting thing you will ever read nor is it perfect (I wrote it in one week), but Gathegi said it was “Outstanding” and that is enough for me

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