Commentary on Copyright Extension
by John Solomon, January 3, 1999
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Copyright © 1999 The Globe Newspaper Company. I have concluded that the importance of these views to the ongoing public policy debate and the noncommercial nature of this web site justify the reprinting of this Op-Ed piece as a fair use under copyright law. Please do not copy for any purpose other than a fair or otherwise noninfringing use without the permission of the Boston Globe. The original article included pictures of George and Ira Gershwin, Disney's Michael Eisner, and your humble web site maintainer, Dennis Karjala, described as someone who "quixotically fought the law's extension."
Rhapsody in Green
By John Solomon, 01/03/99
While most of the nation has been arguing over how Congress should be interpreting one particular constitutional clause, Mickey Mouse was quietly and effectively bending political ears on another.
In the last days of the 105th Congress, the House and Senate unanimously approved and President Clinton signed little-noticed legislation extending the federal copyright term by 20 years for Mickey and other intellectual property.
The measure - which went into effect Friday - will be worth billions of dollars for the nation's largest media companies, including Disney, and the families of some leading composers from the 1920s and '30s. In its hurried passage, there was no discussion that the legislation reinterprets a section of the Constitution, cedes priceless public property rights to private interests, and will maintain higher costs for consumers and performers.
Despite the significant issues and monies involved, no one in Washington emerged to lead the opposition. No member of the House or Senate made it a priority. Even consumer and academic groups were too distracted with other legislation to get involved.
The role of chief lobbyist fell to Dennis Karjala, a law professor from Arizona State University. With little more than an abundant supply of intellectual energy, some moral outrage, and a Web site, Karjala quixotically attempted to block the extension - or at least to provoke a proper debate.
This, however, is not the typical case study of how big lobbies use PAC-derived power to influence policy. There's some of that, but the extension story better illustrates another Capitol Hill phenomenon: the difficulty smaller interests without financial largesse have finding legislators who will lie down on the tracks to slow a bill for them. This is often the crucial element in getting an issue a thorough public airing and allowing any opposition to coalesce.
The extension saga also provides a textbook example of how challenging it can be to organize opposition in Washington to legislation that delivers concentrated benefits to a few while distributing the costs among all. It has received such little attention in part because the constitutional underpinning of copyright protection is not well known by the public or, apparently, by the same legislators who of late have been proudly carrying around dog-eared copies of ''The Federalist Papers. ''
In Article I, Section 8, the Constitution gives Congress the power ''to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.''
Copyright law strikes a bargain with private creators: The government provides them monopoly rights for a certain amount of time after which the public receives unfettered access to their work. To the Framers, the rights needed to be ''limited'' enough to ensure a public domain that could stimulate even more creativity and commerce. If anything, they wanted to err on the shorter side.
Without the change, Mickey, created by Walt Disney in 1928, was scheduled to go into the public domain in 2003. Pluto, Goofy, and Donald Duck would have followed soon after. Music from George and Ira Gershwin, Cole Porter, and many others would have also lost their copyright protection over the next few years.
Congress originally set the US copyright protection at 14 years from publication, and that length has been extended three times. The current copyright law, enacted in 1976, protects works owned by corporations (and any created before 1978) for 75 years after their publication; copyrights held by individuals are in force until 50 years after the creator's death.
The new legislation was initially prompted by the European Union's 1993 decision to extend the duration of its own copyright laws. If the United States did not match the EU's standard, proponents argued, foreign companies would be able to draw from American works without reciprocation, severely damaging the balance of trade and costing jobs.
The argument may have some merit. If Mickey Mouse is going to conquer the world, shouldn't it be an American Mickey? Yet supporters used the international-trade argument to grab an extra 20 years of royalties in the United States as well. Instead of justifying the domestic aspect directly, the extension was positioned as a referendum on the nation's knowledge-based industries - a ''what's good for Disney is good for the United States'' approach.
It is no small irony that Disney, better than anyone, knows the creative and economic value of a vital public domain. For years, the company has drawn heavily on freely available characters and stories to create some of its most lucrative products, including the Little Mermaid, the Hunchback of Notre Dame, Cinderella, Pocahontas, and Beauty and the Beast.
Thus, one would think that before the Congress and the Clinton administration backed the change, someone would have produced at least one study proving the benefits outweigh the costs. Amazingly, no one did. Policymakers put the burden of proof on Karjala. And fully quantifying the ''hidden harm'' - what plays or musical scores won't be performed, what books won't be written, how much more consumers will pay - would be a challenge for the most well-heeled K Street lobby.
But take just one example. In 1988, before the copyright expired on Ravel's ''Mother Goose Suite,'' it cost $540 in rights fees to perform the piece twice publicly. Now that the work is in the public domain, the only cost is for its sheet music, which can be purchased for around $70.
Karjala entered the political fray five years ago when he persuaded 35 fellow intellectual property professors to sign onto a letter to the Copyright Office opposing the extension. ''That was going to be the extent of my contribution to the debate,'' Karjala says. ''I expected that someone would pick it up from there.'' No one did. By default, professor Karjala had become the opposition's standard-bearer.
Disney officials have kept a low public profile on the issue, refusing to comment for this article. Behind the scenes, however, the company has been active. Congressional Quarterly reported that Disney chairman Michael Eisner personally lobbied Senate Majority Leader Trent Lott, a Republican from Mississippi. That day, according to the Center for Responsive Politics, Disney gave Lott a $1,000 contribution, following up two weeks later with a $20,000 donation to the National Republican Senatorial Committee.
In addition, songwriters such as Bob Dylan and Quincy Jones, and heirs of such prominent past composers as George Gershwin and Hoagy Carmichael, visited Capitol Hill to put a high-profile human face on the extension effort. Creators and their families argue that moving the copyright 20 years will better reflect the longer life spans of children and grandchildren, and that descendants are in the best position to be future stewards of the work.
The most notable copyright scheduled to expire this year was on George Gershwin's ''Rhapsody in Blue.'' Understandably, the Gershwin family lobbied hard for the extension. It is less a matter of money, nephew Mark Gershwin told The New York Times, than control. He noted, for example, that the family licenses ''Porgy and Bess'' only to productions with African-American performers.
Yet that type of restriction seems contrary to the Framers' wishes. Would Shakespeare's heirs have licensed ''Romeo and Juliet'' for a musical about a New York City gang war, like ''West Side Story''? Or Thomas Nast's descendants have asked for a royalty every time Santa Claus or Uncle Sam is depicted?
For awhile, the professor got lucky. The extension bill got tangled up in a separate battle between songwriters and bars over royalty payments. When that logjam was finally worked out, the proposal flew through with no opposition at all.
So, on Friday, when the extension went into effect, the story got a typical Washington, not Hollywood, ending - one in which the mouse that tried to roar against Disney could not generate more than a squeak.
John Solomon is a New York-based journalist, and writes often on media and politics.
This story ran on page E02 of the Boston Globe on 01/03/99.
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