Commentary

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Commentary on Copyright Term Extension
 

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.

Thomas Babington Macaulay 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 disaster.

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). 

Robert S. Boynton, Righting 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.

Ben Byrne,  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)

Douglas Gomery, 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).

John Horn, 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.  Take a look! 

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 Congress. 

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, and elsewhere.

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 constitutional goal.

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 Congress 

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. 

Cecil 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 policy.  

Joseph A. Lavigne, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act of 1996Originally published 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 reading.

John McDonough, Motion Picture Films and Copyright Extension.  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, a 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! 

Edward Rappaport, Copyright 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 motion pictures.

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 benefits.   

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 reading!

Wall Street Journal, Songwriters' 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 Journal. 

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 readable! 

Edward C. 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 unconstitutional.

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 not justified." 

Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 324 (1970).

 

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