Maintained
by:
Dennis
S. Karjala
Professor
of Law
Arizona
State University |
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| Help
Protect Your Rights to the Great Works in the Public Domain! |
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October 7, 1998, both the House and the Senate passed S. 505, the "Sonny
Bono Copyright Term Extension Act" (CTEA), extending the already-too-long
term of copyright protection by another 20 years. The legislation purports
to cover even works already in existence -- a windfall gift to special
interests of what rightfully belongs to the public. President Bill Clinton,
a self-proclaimed supporter of the little guy, signed the bill on October
27, 1998. Like the Congress, former President Clinton sold out the
interests of the American people to a few owners of valuable copyrights
from the 1920's and 1930's. On January 15, 2003, the United States
Supreme Court essentially disavowed its institutional obligation to interpret
the Constitution to maintain the system of checks and balances set up by the
Founding Fathers. This web site shows how and why
the congressional action and the Supreme Court's affirmance of it are tragic
mistakes.
This site also contains materials on the law and policy of longer copyright terms generally in the hope that, when this issue
arises again (as it will, now that the Supreme Court has given Congress a carte
blanche with respect to copyright, around the year 2015 or so), those seeking to defend the
public interest will have some ammunition.
Everyone should be grateful
to the efforts of Stanford Law professor Lawrence Lessig, who was the lynchpin
in the constitutional challenge, supplying immeasurable amounts of his time,
money, and extraordinary talent to the cause. Although the effort was
ultimately unsuccessful, he succeeded in bringing the issue before the public,
which I was wholly unable to do when the bill was being considered by
Congress. If we are vigilant, we MAY able to stop
the rent-seeking special interests the next time they seek to line their own
pockets at the expense of our cultural development. Please visit Professor
Lessig's web site for information and ideas about new approaches to
promote the public domain in the light of this disastrous abdication of
constitutional duty by the Supreme Court.
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Challenge
to Constitutionality |
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Contains links to judicial materials and briefs filed in connection with the
unsuccessful constitutional challenge to the CTEA.
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Media
Coverage |
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Articles
and Editorials from the Popular Media concerning the CTEA and the legal
challenge to its constitutionality
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Commentary |
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Academic
Articles, Comments and Opinions on Term Extension and the CTEA
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Statutes
and Treaties |
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Texts
of the Relevant Legal Provisions of the Copyright Act and Berne Convention
Do you
think the Sonny Bono Act harmonized US copyright terms with those in the
European Union? Take a look that this Harmonization
Chart, prepared May 15, 2002
The
Stanford University Libraries
site is a good one for constitutional, legislative, and administrative materials
related to copyright, including the important fair use cases. (Thanks to
Jill at Melody Lane for
telling me about this.)
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Legislative
Materials |
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What
Was Congress Hearing and Thinking? Introductory statements by sponsors, my
opposition statements (and others), the bills themselves at various stages, and
committee reports.
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| New
Developments and New Items at this Site
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 10TH
CIRCUIT UPHOLDS URAA AGAINST COPYRIGHT CLAUSE CHALLENGE BUT REMANDS TO TEST
FIRST AMENDMENT CHALLENGE WITH HIGHER SCRUTINY
Golan v. Gonzales,
No. 05-1259 (10th Cir. 9/4/07) holds that the revival of copyrights that had
expired due to failure to comply with U.S. formalities (publication without
notice or failure to renew) is subject to scrutiny under the First Amendment
and remanded the case to the district
court to determine whether the URAA is a content-based or content-neutral
restriction on speech, which in turn controls the level of scrutiny it
should undergo. The court upheld the lower court's dismissal of the
challenge based on the copyright clause, saying that the infamous Eldred
decision controlled.
A small victory but . . . .
9TH
CIRCUIT REAFFIRMS EARLIER
DECISION CHALLENGING COPYRIGHT RENEWAL ACT OF 1992 AND REJECTING CHALLENGE TO
COPYRIGHT TERM AS TOO LONG
Kahle v. Gonzales,
487 F.3d 697 (9th Cir. 5/14/07)(pdf) holds that eliminating the renewal
requirement in 1992 from an "opt-in" to and "opt-out" system did not alter
the "traditional contours of copyright protection" but merely placed old and
new copyrights in parity, like Sonny Bono's retroactive term extension
upheld in Eldred. In rejecting the argument that the term
extension not a "limited time," the court concluded that "limited times" is
to be determined by balancing impetus to authors against the benefit to the
public from shorter terms and that such weighing is left to Congress under
Eldred.
No surprise but inevitably disappointing.
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Recent
Commentary
paul j. heald,
PROPERTY RIGHTS AND THE EFFICIENT EXPLOITATION OF COPYRIGHTED WORKS: AN
EMPIRICAL ANALYSIS OF PUBLIC DOMAIN AND COPYRIGHTED FICTION BEST SELLERS, is
an empirical study of the effect of public domain status on availability and
price. While the full version is not yet available, here is the
abstract:
Economists and policymakers have recently defended the
extension of copyright protection to assure the efficient exploitation
of existing works. They assert that works in the public domain may be
under-exploited due to the lack of property rights or over-exploited due
to congestion externalities. This study compares the availability,
number of editions, and prices of 166 public domain bestsellers
published from 1913-1922 with 168 copyrighted bestsellers from
1923-1932. It also compares the 20 most enduringly popular public domain
works from 1913-1922 with the 20 most enduring popular protected works
from 1923-1932. A significantly higher percentage of the public domain
books are still in print, with significantly more editions available per
book, and for the subset of especially durable works, the public domain
works are significantly less expensive. Although the data show that
rates of availability for both kinds of books are likely sensitive to
reductions in the cost of duplication and distribution, the study
concludes that protection of fiction beyond the period necessary to
ensure its creation is not justified by concerns about
under-exploitation. The possibility of congestion presented by the data
is also tentatively rejected.
Christorpher
Ledford,
The Dream
that Never Dies: Eldred v. Ashcroft, the Author, and the Search for
Perpetual Copyright, 84 Oregon Law Review 655 (2005), argues that
the CTEA is only the most recent example in which the media have relied on
the "author" to achieve their legislative interests, that these forces have
relied heavily on property rights ideology in asserting their claims, and
that we must be increasingly vigilant in preventing the use of "authors" to
divert attention from the public interest in copyright.
Matthew
Rimmer, Bloomsday: Copyright Estates and Cultural Festivals,
outlines the spate of legal actions taken by the estate of James Joyce to
prevent readings, performances, publications, and even exhibits of manuscripts
and notebooks by libraries, galleries, and museums. He argues that
special legislation, such as was adopted in Ireland to permit a 100th
anniversary Bloomsday celebration is insufficient and that we must begin
action to repeal the unfortunate copyright term extension started in the
European Union and now even more actively promoted by the United States.
Joost
Smiers and Marieke van Schijndel, Imagine
a World Without Copyright, Intrernational Herald Tribune, October 8, 2005,
argue that copyright is unnecessary to the process of artistic creation.
They would rely on first mover advantages, a 1-year period of exclusivity to
encourage the creation of works that require sizable investments, and a system
of rewards and subsidies for works that are too far ahead of the market to
benefit from the 1-year exclusivity period.
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Last Update September
21, 2007
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