| This site was created
for the purpose of opposing proposals in the 104th (1995-1996) and 105th
(1997-1998) Congresses to extend the already-too-long period of copyright
protection. Unfortunately, that all-too-meager effort failed when
both the House and the Senate passed S. 505, the "Sonny Bono Copyright
Term Extension Act," on October 7, 1998. Our President, a self-proclaimed
supporter of the little guy, signed the bill on October 27, 1998.
Like the Congress, President Clinton has sold out the interests of the
American people to a few owners of valuable copyrights from the 1920's
and 1930's. Click here for the text of the Sonny
Bono Copyright Term Extension Act.
Unless this legislation is
determined by the courts to be unconstitutional (click here for information
on a judicial Challenge to Constitutionality
of this giveaway of the public interest), the American
public will pay a heavy price in continued royalties on old works.
Moreover, the public will enjoy fewer new works because current creative
authors will be denied vital pieces of our cultural heritage for use as
building blocks in making new creations. For the first time in over
200 years of copyright history in the United States, this legislation means
that NO WORKS WILL ENTER THE PUBLIC DOMAIN
FOR A FULL 20 YEARS! (Sigh! As
always, few statements about copyright are absolutely true. For an
explanation, and slight qualification of this one, see Effect
of Term Extension below). The owners of
old copyrights have managed to avoid paying their constitutional dues after
75 years of free-flowing royalty streams--namely, dedication of the works
to the public domain. As part of the public domain, they should constitute
a piece of our cultural heritage and be freely available to all to enjoy
and to use in creating newer works.
The creation of new works is
dependent on a rich and vibrant public domain. Santa Claus himself,
as we now know him, is a good example. The great 19th-century American
cartoonist Thomas Nast, starting from a skinny, austere, judgmental Father
Christmas figure in the public domain, created the jovial, roly-poly figure
that we all know today. Had Thomas Nast been working under the kind
of copyright law now in place after term extension, we may never have seen
the development that we now take for granted—and Nast's descendants might
be seeking royalties from everyone seeking to put out Christmas decorations.
Even the U.S. Government would have had to pay royalties to use Uncle Sam
for its patriotic solicitations, like bond selling and military enlistments,
during World Wars I and II, the Korean War, and most of the Vietnam War!
(Uncle Sam was also a creation of Nast, based on the public domain name
and concepts, and Nast died in 1902.) Just as Uncle Sam, Santa Claus
and the Easter Bunny are part of the public domain that anyone can use
in any season, so eventually should Mickey Mouse and Bugs Bunny also join
our freely available cultural heritage (not to mention Rudolph and his
red nose). That is a crucial part of the copyright "bargain" that
the public made at the time these works were created.
Do you think that the public domain does not affect
the prices paid by the public to enjoy works? Take a look at the
letter from Randy Luck of Luck's Music
Library, which shows how dramatically prices drop for the performance
of classical music when a work enters the public domain.
Some Copyright Term History
The first United States Copyright
Act (1790) provided for a term of 14 years, renewable in the 14th year
for a second 14-year period. Later the initial term was extended
to 28 years, renewable for 14 years, and in 1909 the renewal period, too,
was extended to 28 years (for a possible total of 56 years). Beginning
around 1962, Congress started extending the renewal term by one year each
year, with a view toward the extensions envisioned by the negotiations
leading to the 1976 Copyright Act. That Act did, indeed, permanently
set the renewal term, for pre-1978 works, at 47 years (giving them a total
of 75 years of protection). It also eliminated the renewal requirement
altogether for post-1977 works, giving them a single life + 50 year term
for individual authors and a flat 75-year term for "corporate authors"
(works made for hire). Consequently, the copyright term was effectively
extended for old works (pre-1978 works whose copyright was renewed) by
a full 19 years as recently as1962. Such works enjoyed, prior to
the 1998 extension, 75 years of copyright protection--19 years more than
the original authors ever thought they were going to receive. According
to a Wall Street Journal
article of October 1997, heirs and assignees
of creative composers from the 1920's have already enjoyed millions of
dollars of extra royalty income as a result of that extension. The
1998 term extension provides these noncreative recipients with another
20 years of such royalties, all paid out of the pockets of the public.
The 1998 copyright term extension
legislation was introduced in the House on February 5, 1997, in the form
of H.R. 604. The Senate's version
of the bill, S. 505, was introduced on
March 20, 1997, by Senator Hatch. The House bill was passed by the
House of Representatives on March 25, 1998, in a form that included some
controversial new provisions (unrelated to term extension) on music licensing
and renumbered H.R.
2589. The special-interest proponents of term extension were successful
at making the bill look noncontroversial, as shown by the way the House
Subcommittee held its "hearings". (The hearings were combined
with some other bills, so they were not publicized under the bill numbers
for those trying to follow the legislation. The proponents of extension--surprise,
surprise!--knew about the House hearings and of course testified in favor.
The opponents did not even know the hearings took place until several months
later! Presumably, this disgraceful mockery of democratic processes
was orchestrated by Subcommittee Chair Howard Coble and Committee Staffer
Mitch Glazier.) Some 60 copyright and intellectual property law professors,
who had no personal interest in the outside of their conviction that it
is a bad deal for the public--based on years of study of the underlying
law and policy--delivered to Congress a detailed Statement,
thoroughly demolishing the "arguments" offered by the proponents of term
extension and demonstrating the drastic and permanent harm to the public
domain that extension will bring about. Unfortunately, it was to
How did all this happen? ASCAP,
the descendants of creative geniuses from earlier eras like George Gershwin
and Walter Donaldson, and the entertainment industry (especially Disney,
which saw Mickey Mouse heading for the public domain in 2004) successfully
convinced Congress that this was "noncontroversial, no-lose" legislation.
They very skillfully orchestrated the legislative process so that the bill
retained a very low profile. (The only reason it did not pass earlier
was that this "sure thing" for copyright owners was held hostage by special
interests of another stripe who were seeking--and got--an expanded exemption
for the public performance of works in business establishments. ASCAP
was quite upset about this, showing that congressional loyalties to Disney
took precedence over the music publishers.) The costs of term extension
are, in fact, enormous, but they are spread out over so many people that
few single individuals or groups feel a compelling need to fight.
With only a few exceptions, such as the AAUP and the Society of American
Archivists, the traditional "proxies" for the public interest in copyright
matters--librarians, educators, consumer and citizen action groups--were
largely silent. We must find a new
voice for the public domain, or we can expect this trend to continue--perpetual
copyright on the installment plan.
Click here for a Washington Post report dated October
15, 1998, entitled Mouse Droppings
and describing some of the last minute legislative maneuverings, including
contributions by Disney to the campaign chests of the Republican party
and individual members of Congress, such as Majority Leader Trent Lott.
Look also at Disney Lobbying
for Copyright Extension No Mickey Mouse Effort, an Associated Press
article that appeared in the Chicago Tribune on October 17, 1998.
of the Term Extension Bill
The term extension bill adds 20 year to the renewal
terms of pre-1978 copyrights (making them effectively 95 years from first
publication). It also adds 20 years to the term for works created
after 1977 (which do not have to be renewed): Life +70 years for
individual authors and 95 years from publication for corporate authors.
When this disastrous legislation is coupled with other expansions of copyright
by a Congress that serves moneyed interests over those of the public, we
see how dramatically our nonrepresentatives in Washington have gutted the
public domain--the ultimate source of all new works (because nothing is
ever wholly new in and of itself). For the
first time in our history, no new works will enter the public domain for
a full 20 years! When
Congress began its 19-year extension plan in 1962, it meant that works
whose copyrights had been renewed did not go into the public domain when
they should have, that is, at the end of 56 years after publication.
However, because the renewal system was still in place at that time, many
works entered the public domain simply because their copyright owners did
not take the simple steps required to renew the copyright. This usually
happened because the copyright owners did not believe that the works had
any economic value, but in some of these judgements the copyright owner
was mistaken (as in the case of the film, "It's a Wonderful Life").
However, and in any event, many of these works had important scholarly
and research value and became available for general use a mere 28 years
after their initial publication. So, even though the term for most
economically valuable works was extended by 19 years in 1962, the public
domain continued to grow.
However, in 1992 Congress made
renewal automatic for works published in 1964 or later (and of course the
1976 Act had already eliminated the renewal requirement for post-1977 works).
Consequently, a pre-1964 work is either in the public domain already (because
of failure to renew) or will remain protected for the extended period of
95 years from first publication. Works published in 1922 went into
the public domain on Jan. 1, 1998, but works published in 1923 that were
still protected in 1998 will remain protected until Jan. 1, 2019.
Nothing now goes into the public domain for failure to renew. So,
that means that nothing will go into the public domain at least until 2019
(and we can be sure that Disney will be back prior to that to try to extend
the term again).
For completeness, there is
one qualification that should be made. Section 303 of the 1976 Act
brought under federal copyright protection previously unpublished works,
including very old works (like letters of George Washington) that are in
the public domain everywhere else in the world (because the life + 50 or
even life + 70 year term has expired). (Is that harmonization--one
of the false banners under which term extension was propounded?)
It further provides that all of these old works will enter the public domain
on Jan. 1, 2003, unless they are published prior to that date. (If
they are published before 2003, they are protected under the extension
bill until 2047, even those that are in the public domain everywhere else!)
One of the small victories in this sordid affair was effected by historians
who convinced Congress not to extend the 2003 date to 2013. Consequently,
we will have one more injection into the public domain prior to
2019, namely, very old works that have not been published before 2003.
(There is an important lesson here for anyone interested in using these
historical documents. DO NOT PUBLISH THEM IN ANY FORM PRIOR TO 2003,
EVEN ON A WEB PAGE! If you do, you may create copyright problems
for everyone else who wishes to use them until 2047.)
What Happens Now?
This site contains a collection of documents, articles,
letters, links, and other information relevant to the issue of copyright
term extension. Notwithstanding adoption of the legislation, I
intend to keep this web site in operation with additional information relating
to the public domain as I can gather it. Perhaps it will be useful
to someone when term extension arises again in 20 years, or perhaps it
will help make people more aware of the importance of the public domain
generally. This site also contains contact information for
members of both houses of Congress as well as President Clinton at the
White House and Vice President Gore. Similar information is separately
given for the members of the Senate Judiciary Committee and the Subcommittee
of the House Judiciary Committee, which are the Committees that, in principle,
first consider copyright legislation, but in practice actually determine
it, because only very rarely does something get added or changed on the
floor. (Now that the legislation has passed, there may be less
need to contact these disgraceful politicians on this particular issue,
but some visitors may find it convenient to have addresses and telephone
numbers handy.) Many members of Congress seemed to believe that copyright
extension was noncontroversial. Opponents of term extension failed to make
clear that large numbers of Americans believe in and have a vital interest
in maintaining a healthy public domain. We must do better the next
time the issue arises (as it surely will).
It is a sad time for
the public domain and the public interest in the advancement of knowledge
and culture. I wish to thank all of those people who did try to make
Congress aware of the public interest side of this issue and regret that
I was unable to be more effective in stopping this blatant giveaway of
the public interest into private hands. It has been suggested
that we should designate October 27 as a sort of "Public Domain Remembrance
Day." Whether that comes about or not, we must be thinking of how
to promote public understanding of the importance of the public domain
to that fiascoes of this type can be more effectively opposed. We
must also be thinking of ways to support the important judicial
challenge to the constitutionality of the Sonny Bono Copyright Term