This page contains links to a number of newspaper articles dealing with
copyright term extension as well as several academic pieces that more thoroughly analyze
the legal arguments. Links to additional commentary may be found at the Legislative Materials and Media Coverage
pages. Of particular interest may be the 1998
Statement of Copyright and Intellectual Property Law Professors, the Oral Testimony of Professor Peter Jazsi on S. 483 before
the Senate Committee on the Judiciary, September 20, 1995, and a 1996 Senate Judiciary Committee Report (especially
the dissenting opinions by Senators Kohl and Brown) on the bill that was before the 104th
Congress. On the specific question of the constitutionality of term
extension, links to various materials may be found at the Constitutionality
of Term Extension page.
Works are listed (roughly) in
alphabetical order by first author's last name.
1841 and 1842 Speeches to British Parliament Opposing a Life + 60 Year Term as
well as a Life + 25 Term. Elegant
and famous argument that the copyright monopoly is a necessary evil. It
has good effects, but they decrease with increasing term length, while the
"evil effects" are proportional to term length. Wit
and wisdom about copyright that remains as relevant and correct today
as it did in the days of this famous British historian. Must
reading for anyone interested in the problem of the proper length of the
copyright term. These speeches are also available here,
with some introductory commentary by Eric Flint.
Robert L. Bard and Lewis
Kurlantzick, Copyright Duration -- Duration, Term Extension, The European Union
and the Making of Copyright Policy,
was published in February 2001 by Austin & Winfield. I have no
links to it but anyone interested in the general subject of copyright term duration will
want to consult this important work.Jay Bryant, in Copyrights,
Celebrity and Bad Laws (The.Optimate, Feb. 5, 2003), severely criticizes the policy underlying the Sonny
Bono Act, which he blames on a "gaggle of greedy celebrities" who had
the Clinton administration in their pocket. He argues that the Republicans
owe nothing to these folks and therefore should repeal this legislative
Stephen R. Barnett and Dennis S. Karjala,
Copyright From Now Till Practically Forever,
published in the Washington Post OpEd page July
14, 1995 (a short and easy to read introduction to the public interest issues involved in copyright extension).
Copyright: Fair Use and 'Digital Environmentalism,'
(2005)offers many examples of the increasing restrictiveness of modern copyright law
on creativity and reviews efforts to counter this trend that take inspiration
from the environmental movement.
Of Duration and the Deceased: The
corporate battle to pass the Sonny Bono Copyright Term Extension Act (Word format).
In this student paper, Ben
Byrne gives a readable and enlightening review of the legislative processes
underlying the Sonny Bono Act. He concludes, "While couched in
language stressing the importance of copyright extension to harmonize U.S. law with
a recently-passed duration extension in the European Union so as to keep
intellectual property law fair for America, the passage of the Sonny Bono
Copyright Term Extension Act was little more than a select group of
beneficiaries (corporations and the heirs of creators) influencing government
for personal gain rather than the overall good."
Craig Dallon, The
Problem with Congress and Copyright Law, 44 Santa Clara L.
Rev. 365 (2004). Prof. Dallon details the long history of copyright,
beginning in Rome, going through the Statute of Anne and the origins
of the copyright clause in the U.S. Constitution, and ending with the
CTEA. He concludes that Congress violated the constitutional
purpose of promoting the public interest in adopting the CTEA and
argues for more vigilant protection of the public domain.
Nadine Farid, Not
in My Library: Eldred v. Ashcroft and the Demise of the Public Domain,
5 Tul. J. Tech. & Intell. Prop. 1
(2003)(tracing the history of the public domain in the U.S., arguing
that it has been consistently undermined from the initial vision of
the Founding Fathers, culminating in the Sonny Bono Act)
Roger Foley, U.
Miami Class Paper (Nov. 2002)(arguing for Supreme Court rejection
of the entertainment industry's "thinly veiled attempt to
circumvent the limitations of the U.S. Constitution's limits on
copyright protection)(Word format)
Free Expression Policy Project, "The
Progress of Science and Useful Arts":: Why Copyright Today
Threatens Intellectual Freedom (2003)(analyzing the challenges
to the public domain and the dissemination of information after Eldred,
Napster, and the DMCA)
Research Report: The Economics of Term Extension for
Motion Pictures. In addition to analyzing the negative implications
for scholarly research on and public access to silent films, this report gives examples of
works that became popular or were available for preservation only because they fell
into the public domain. Strongly recommended reading!
Marci A. Hamilton,
Copyright Duration and the Dark Heart of
Copyright, originally published in Volume 14, No. 3, Cardozo
Arts & Entertainment Law Journal, Pages 655-660 (1996). This article cogently argues
that a better empirical understanding of copyright dynamics and closer attention to the
Constitution's demand that copyright "promote the progress of science and useful
arts" should caution against blindly following the European approach and warns that
"international standardization is in fact a shield behind which less public-spirited
interests may seek their own ends."
Douglas A. Hedenkamp, Free
Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of
1909, 2 Va. Sports & Ent. L.J. 254-279 (2003)(based partially on
an unpublished work by Lauren Van Pelt
available only at this site and arguing that Mickey Mouse is in the
public domain due to failure to attach the required copyright notice
in his earliest movies).
Cartoon Copyrights Coming Up,
Associated Press release dated February 2, 1998, discussing the term
extension issue in lay terms and pointing out many of the arguments against term
extension. The article points out, among other things, Disney's strong interest in
term extension, and quotes a show business lobbyist as conceding that "jillions of
dollars" in windfall revenue for film studios.
Statement of Copyright and Intellectual Property Law
Professors on the Public Harm, unpublished easy-to-read statement of some 35 copyright
and intellectual property law professors opposing the extension bills in the 104th
Copyright Extension Would Enrich Heirs,
Impoverish Culture, Guest Column by Dennis S. Karjala for the Arizona Republic,
September 1, 1998, reprinted in the Cleveland Plain Dealer, the Honolulu Star Bulletin,
Dennis S. Karjala,
Judicial Oversight of Copyright Legislation, 35 U. N. Ky. L.
Rev. 253 (2008), seeks to refute arguments, based on the need to
leave complicated legislative copyright tradeoffs to Congress, that
the Supreme Court got to the right result in Eldred.
While the argument is correct in general, it is incorrect in the
specific cases of copyright term extension, because of the
constitutional requirement that copyright be afforded for a "limited
time." It argues that, if the term is extended yet again, the
only viable argument will be that the term is not "limited," because
it bears no plausible relationship to the progress of science and
that "limited time" must be interpreted in terms of that
Dennis S. Karjala,
The Term of Copyright,
chapter of the book Growing Pains: Adapting Copyright for Libraries, Education,
and Society, Laura N. Gasaway ed., published by Fred B. Rothman & Co. 1997. This
updates Professor Karjala's Written Testimony before the House Subcommittee in 1995,
focusing more on the arguments for extension that seem to be most influential in
Dennis S. Karjala, Congress Moves to
Extend Copyright Welfare, June 1996, submitted in OpEd-style to
both the Wall Street Journal and the New York Times (but not published in either). This
short comment explains how copyright extension would operate solely as a welfare measure
to keep the royalty streams flowing to the owners of old U.S. copyrights. It shows that
"harmonization" with Europe is neither achieved by the extension bills in the
U.S. nor serves as any rational basis for extending the copyright term here.
C. Kuhne III,
The steadily shrinking public domain: inefficiencies of existing copyright
law in the modern technology age, 50 Loy. L. Rev. 549-563 (2004),
argues in favor of a 30-year copyright followed by 10-year renewals, for no
more than a total term of 100 years.
Arlen W. Langvardt and Kyle T.
Langvardt, Unwise or Unconstitutional?: The Copyright Term
Extension Act, the Eldred Decision, and the
Freezing of the Public Domain for Private Benefit, 5 Minn. Intell. Prop.
Rev. 193 (2004), offers a detailed analysis of the Sonny Bono Act and the erroneous
reasoning of the Supreme Court in upholding its constitutionality, calling the
result "a massive giveaway to corporate copyright owners and heirs of
creators of copyrighted works at a steep cost to society." They also
explore the implications of the Eldred decision for copyright law and
Joseph A. Lavigne, For Limited Times? Making Rich Kids Richer Via
the Copyright Term Extension Act of 1996.
in Volume 73, No. 2, University of Detroit Mercy Law Review, Pages 311-360 (Winter 1996).
This excellent Comment gives a careful legal and policy analysis of copyright extension,
concluding that it is not only unwise but also arguably unconstitutional in violating the
"for limited Times" requirement.
Larry Lessig, The
Creative Commons, 55 Fla. L. Rev. 763 (2003)(arguing that
ambiguities in the word "property" have allowed protectionist
proponents incorrectly to analogize intellectual property to tangible
property, resulting the the huge expansion of IP rights of which the
Sonny Bono Act is but one example)
Larry Lessig offers a critical analysis of of his own argument in Eldred before
the Supreme Court, "How
I Lost the Big One," Legal Affairs, March/April 2004. Although
Professor Lessig is unfairly harsh on himself, the article is well worth
John McDonough, Motion Picture Films and
Mr. McDonough is from Television Access
International. This short and readable piece by a person highly knowledgeable in the
film industry, especially films from the early days of the industry many of which are
literally rotting away and may be lost forever unless they are restored before the
extended term would expire, shows how the extended term will dramatically reduce the
ability of archivists and film distributors to restore and distribute old films.
Many of these films will be lost unless something is done to save them within just a few
years. Copyright extension will not result in
greater distribution of these films, because in most cases their copyright owners are not
exploiting them today and have not exploited them for decades. Instead, the extended copyrights will be used to hold the off the market,
to maximize the return on newer films by miniming competition.
Letter of Gerald Nachman
dated February 25, 1995,
to the New York Times commenting on the proposal to extend the copyright term and
objecting to copyright as a welfare measure for the heirs of creative authors. It
includes many examples showing how authors' estates often use copyright to censor the use
of culturally valuable works, rather than promote the dissemination of our cultural
heritage. Short and readable!
Tyler T. Ochoa, Patent
and Copyright Term Extension and the Constitution: A Historical
Perspective, 49 J. Copyr. Soc'y USA 19 (2002). A careful and
thorough legal analysis of the long history of
congressional extensions of patents and copyrights. Professor Ochoa concludes that the D.C.
Circuit's decision in Eldred, that Congress
may extend a patent or copyright for any finite term it chooses, does violence
to the language and purpose of the Copyright and Patent Clause Clause, as it
has been interpreted by the U.S. Supreme Court. He also concludes that
the long history of private patent extensions, too, does not justify the
indiscriminate 20-year extension effected by the CTEA, although they might
support extensions in more limited circumstances to vindicate legitimate
expectation interests of rightholders who did not enjoy their full term because
of circumstances beyond their control. Aimed at
a legal audience, but well worth study!
Statement of Timothy R. Phillips,
physicist interested in music as author, musician, and instrumentalist, in opposition to
copyright term extension. Tim offers many excellent examples from the field of music and,
among other things, thoroughly debunks the notion that public domain works cost as much to
the public as works under copyright.
Well worth reading!
Term Extension: Estimating the Economic Values (available by special order). Study done for the Congressional Research Service,
Library of Congress, May 11, 1998. Tries to estimate the total
"extra" income to copyright owners as a result of a term
extension that was ultimately legislated by the Sonny Bono Act.
It also analyzes the possibility of charging a "user fee" to
copyright owners for exclusive rights to the extra 20 years. It
concludes that, for works initially published between 1922 and 1941,
extra royalty income would total $330 million, mostly from books and
J.H.Reichman, The Duration of Copyright and the Limits of
Cultural Policy, originally published in Volume 14, No. 3, Cardozo
Arts & Entertainment Law Journal, Pages 625-654 (1996). Professor Reichman argues in
this article that enactment of the term extension bills in their present form would be
premature and counterproductive. He specifically opposes extension of the term for
"works made for hire", although he does not oppose extension of the term for
individual authors to life plus 70 provided authors, and not publishers, obtain the
Phyllis Schafley, Why Disney Has Clout with the Republican Congress, Nov. 25, 1998, details some of the contributions from
Disney and Disney PACs to the members of the Senate and House Judiciary
Committees (which have responsibility for intellectual property legislation).
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.
Robert Spoo, Three
Myths for Aging Copyrights: Tithonus, Dorian Gray, Ulysses (Joyce
Studies 2004). Professor Spoo skillfully analogizes copyrights to
characters from three literary classics and asks whether the copyright
itself would want to go on forever. He provides a fresh,
novel, and interesting way of looking at the problem of copyright term
extension. Well worth
Wall Street Journal,
Heirs Mourn Copyright Loss, summary of a Wall Street Journal
article of October 30, 1997, on the role being played by descendants of great American
songwriters from the 1920's in lobbying Congress intensely to extend the copyright term.
The article shows that many of these heirs have already collected millions of dollars just in the extra royalties paid as a result of the
19-year term extension that occurred in 1976. The article also shows their exercise of
control over uses of these classic American works that they deem unsuitable. Comment from
Dennis Karjala is also presented, together with a letter thereon he has sent to the
Wall Street Journal, Who Owns Jane Austen?,
summary of a front-page
Wall Street Journal article of March 25, 1996, on distant descendants of Jane Austen who
would like more control over today's uses of her works, together with a published comment
letter thereon by Dennis Karjala. This is a good example of the danger of ever-longer
copyright protection, and how it could easily inhibit, rather than promote, creative uses
of what would otherwise be public domain works. Short and
Walterscheid, Defining the Patent and Copyright
Term: Term Limits and the Intellectual Property Clause. Mr.
Walterscheid undertakes a thorough historical analysis of
the Constitution's intellectual property clause in 7 J.
Intell. Prop. L. 315 (Spring 2000). He contrasts
Congress's different approaches to the terms of patents
and copyrights. Congress has never seen the goal of
patent law as one of rewarding inventors, but the primary
ground for extending the copyright term is to provide a
"fair economic return" to copyright
owners. This is a valuable article for those seeking to convince
the courts to find the Sonny Bono term extension
Consider also what Justice (then Professor)
Stephen Breyer said (without success) about extending for an additional 19 years at the
time the 1976 Copyright Act was under deliberation:
"This continual expansion is not surprising. Holders of
copyrights about to expire have a financial interest in urging extension. Authors and
publishers can lead a legislature to focus on the production and 'moral' arguments for
protection, while no single interest group is sufficiently affected to focus legislative
attention upon the problems of dissemination. An examination of the question, however,
suggests that, even if the moral argument is given its due, which is little, extension is
Stephen Breyer, The Uneasy Case for Copyright: A Study of
Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 324 (1970).