COPYRIGHT TERM EXTENSION ACT

The 'Copyright Term Extension Act' of 1998—alternatively known as the 'Sonny Bono Copyright Term Extension Act' or pejoratively as the 'Mickey Mouse Protection Act'—extended copyright terms in the United States by 20 years. Before the Act (under the Copyright Act of 1976), copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship; the Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] The Act also affected copyright terms for copyrighted works published prior to January 1, 1978, increasing their term of protection by 20 years as well. This effectively 'froze' the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterwards (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again. Unlike copyright extension legislation in the European Union, the Sonny Bono Act did not revive copyrights that had already expired. The Act did extend the terms of protection set for works that were already copyrighted, and is retroactive in that sense. However, works created before January 1, 1978 but not published or registered for copyright until recently are addressed in a special section () and may remain protected until 2047. The Act became Public Law 105-298 on October 27, 1998.

Background

Under the Berne Convention for the Protection of Literary and Artistic Works, the signatory states are required to provide copyright protection for a minimum term of the life of the author plus fifty years, but they are permitted to provide for a longer term of protection. Following the 1993 Directive on harmonising the term of copyright protection, member states of the European Union implemented protection for a term of the author's life plus seventy years. The United States did not become a Berne signatory until 1988, but had previously provided for the minimum copyright term the convention required in the Copyright Act of 1976.
Prior to the 1976 copyright act, many copyrighted literary works, movies and fictional characters were soon to pass into the public domain due to their 56 year maximum copyright terms. Some of these copyrighted items remained quite profitable for their copyright owners, including several characters owned by the Walt Disney Company. With the passage of the 1976 copyright act, early animated short films featuring Mickey Mouse such as ''Steamboat Willie'' and ''Plane Crazy'' would not enter the public domain until 2000 at the earliest due to their new 75 year copyright terms. Mickey Mouse and other characters also have protection as trade marks. In several countries (e.g. in Russia, where the Berne convention was not applied retroactively) Mickey Mouse and all other copyrighted works created before 1970 are now regarded as being in the public domain.
After the United States' accession to the Berne convention, a number of copyright owners successfully lobbied the U.S. Congress for another extension of the term of copyright, to provide for the same term of protection that exists in Europe. The act was named after the late Congressman Sonny Bono, who died nine months before the act became law. Bono, who, as a songwriter and filmmaker had his own interests in advancing copyright terms, had favored increasing them even before his entry into politics as the mayor of Palm Springs, California.
Both houses of the United States Congress passed the act as Public Law 105-298 with a voice vote,^[1]^[2]
making it impossible to determine who voted for or against. President Bill Clinton signed the Sonny Bono Copyright Term Extension Act of 1998 on October 27, 1998.

Political climate

In addition to Disney (whose extensive lobbying efforts inspired the nickname "The Mickey Mouse Protection Act"), California congresswoman Mary Bono (Sonny Bono's widow and Congressional successor) and the estate of composer George Gershwin supported the act. Mary Bono, speaking on the floor of the United States House of Representatives, said:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.^[3]

Senate Report 104-315

The Senate Report 104-315 gave the official reasons for passing copyright extension laws and was originally written in the context of the Copyright Term Extension Act of 1995, S. 483.

The purpose of the bill is to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. The bill accomplishes these goals by extending the current U.S. copyright term for an additional 20 years. Such an extension will provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union while ensuring fair compensation for American creators who deserve to benefit fully from the exploitation of their works. Moreover, by stimulating the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality and accessibility of the public domain.

The authors of the report believed that extending copyright protection would help the United States by providing more protection for their works in foreign countries and by giving more incentive to digitize and preserve works since there was an exclusive right in them. The report also included minority opinions by Herb Kohl and Hank Brown, who believed that the term extensions were a financial windfall to current owners of copyrighted material at the expense of the public's use of the material.

Support

Proponents of the Bono Act argue that it is necessary given that the life expectancy of humans has risen dramatically since Congress passed the original Copyright Act of 1790, that a difference in copyright terms between the United States and Europe would negatively affect the international operations of the entertainment industry, and that some works would be created under near-perpetual copyright that would never be created under time-limited copyright. They also claim that copyrighted works are an important income to the US and that mediums such as VHS, DVD, Cable and Satellite have increased the value and commercial life of movies and television series.
Proponents contend that Congress has the power to pass whatever copyright term it wants because the language "To promote the progress of science and useful arts" in the United States Constitution is not a substantive limitation on the powers of Congress, leaving the sole restriction that copyrights must only last for "limited times." However, in what respect the granted time must be limited has never been determined, thus arguably even an absurdly long, yet finite, duration would still be a valid ''limited time'' according to the letter of the Constitution as long as Congress was ostensibly setting this limit to promote the progress of science and useful arts. This was one of the arguments that prevailed in the ''Eldred v. Ashcroft'' case, when the Supreme Court upheld the constitutionality of the CTEA.
Proponents believe that it is copyright, not the public domain, that encourages progress in the arts. With an extension of copyright, future artists have to create something original rather than reuse old work. Proponents contend that it is more important to encourage all creators to make new works instead of just one party: the copyright holder.
Another point made by proponents is that the extension did not prevent all works from going in the public domain. They note that the 1976 Copyright Act establishment that unpublished works created before 1978 will enter the public domain by 2003 remained unaffected by the 1998 extension.
Proponents reject the idea that only works in the public domain can provide artistic inspiration. They note that many copyrighted works have also had big influences, Examples include the fact that ''King Kong'' and the works of George Lucas did not need to be in the public domain to inspire Peter Jackson. The witty gags, and timing of Tex Avery cartoons still have influence on cartoonists today, even though most, if not all, of his cartoons are copyrighted. The works of rap artists such as Dr. Dre and Tupac Shakur have had influence on the rap community. ''The Godfather'' had and still has a major influence on gangster films and television shows. Many copyrighted works, including the above mentioned, have become a major part of popular culture and have been the subject of commentary and parody even without being in the public domain. Proponents point out that copyright only protects the artist's expression of his/her work and not the ideas, systems, or factual information conveyed in it and thus artists are free to get ideas from copyrighted works as long as they don't plagiarize. Works such as parody benefit from fair use.
Proponents also reject the idea that extended copyright is "corporate welfare." Mark Twain once noted that when a work enters the public domain, the publisher is still able to profit from its exploitations and the creators are the only ones who cease to benefit from the work.^[4]

Opposition

Opponents of the ''Bono Act'' consider the legislation to be little more than corporate welfare and have tried (but failed thus far) to have it declared unconstitutional, claiming that such an act is not "necessary and proper" to accomplishing the Constitution's stated purpose of "promot[ing] the progress of science and useful arts".[2] They argue that most works bring most of the profits during the first few years and are pushed off the market by the publishers thereafter. Thus there is little economic incentive in extending the terms of copyrights except for the few owners of franchises that are wildly successful, such as Disney. They also point out that the Tenth Amendment can be construed as placing limits on the powers that Congress can gain from a treaty. More directly, they see two successive terms of approximately 20 years each (the Copyright Act of 1976 and the Bono Act) as the beginning of a "slippery slope" toward a perpetual copyright term that nullifies the intended effect and violates the spirit of the "for limited times" language of the United States Constitution, Article I, section 8, clause 8. They question the proponents' life expectancy argument, pointing out that the copyright terms under the 1790 act lasted only 28 years total, that life expectancies have not risen threefold since 1790 (ignoring infant mortality, they have increased barely ten years), and that even though terms of patents have not been extended in parallel, patents adequately reward investment in the field with their mere 20-year term.
It has been said that extending copyright terms to "harmonize" with those elsewhere can involve a "leapfrogging": two sides repeatedly extend their copyright terms to try and keep up with each other.
Another argument against the Bono Act is an "offshore production" argument: that, for example, derivative works could be created outside the United States in areas where copyright would have expired, such works advancing science or the useful arts, and that US law would prohibit these works to US residents. A movie of Mickey Mouse playing with a computer (à la Sorcerer's Apprentice) could be legally created in Russia and children worldwide could possibly benefit from watching it, but the movie would be refused admission for importation by US Customs because of copyright, resulting in a deprivation to American children.
Little notice has been paid to another aspect of extension of copyright terms: loss of productive value of private collections of copyrighted works. A person who had collected copyrighted works which would soon be "going out of copyright", with the intention of re-releasing these works upon expiration of copyright, lost the use of his capital expenditures for an additional 20 years when the Bono Act was passed. This is part of the underlying argument in Eldred v. Ashcroft.^[5] The Bono Act is thus perceived to add an instability to commerce and investment, areas which have a much better legal theoretical basis than intellectual property, whose theory is of quite recent development and is often criticized as being a corporate chimera. Conceivably, if one had made such an investment and then produced a derivative work (or perhaps even re-released the work ''in ipse''), he could counter a suit made by the copyright holder by declaring that Congress had unconstitutionally made, ex post facto, a restriction on the previously unrestricted.
Opponents also question the proponents' "new works would not be created" argument by pointing out proponents' hidden presumption that the goal is to make the creation of new works possible, whereas the authors of the United States Constitution evidently thought that unnecessary and explicitly restricted the goal to merely "promot[ing] the progress of science and useful arts". In fact, some works created under time-limited copyright would not be created under perpetual copyright because the creator of a distantly derivative work does not have the money and resources to find the owner of copyright in the original work and purchase a license, or the individual or privately held owner of copyright in the original work might refuse to license a use at any price (though a refusal to license may trigger a fair use safety valve).
Thus they argue that a rich, continually replenished, public domain is necessary for continued artistic creation.
For example, the works of English playwright and poet William Shakespeare and the Greek myths have been the basis for much of Neil Gaiman's writing, which might well not have been created if the original works were still under copyright. Recent works that have entered the popular culture, and for which copyright is arguably not appropriate, include the novels that created Frankenstein and Dracula, both originating in the 19th century. Most of the holy writings of major religions are also in the public domain, which allows them to be adapted, translated, paraphrased and otherwise made suitable to modern audiences. If the Roman Catholic Church had a perpetual copyright on the letters of the Apostle Paul, the four Gospels, the Book of Revelation and the letters of James, Peter, John, Jude and the anonymous author of the Book of Hebrews, it could have refused to license them for translation, or for use by other churches. Many of Disney's most famous feature movies have themselves been derivatives of public domain works; for example, its film ''The Jungle Book'' was created only seven years after the copyright on the book expired in the United States.

Challenges

Publishers and librarians, among others, brought ''Eldred v. Ashcroft'' to obtain an injunction on enforcement of the act. Oral arguments were heard by the U.S. Supreme Court on October 9, 2002, and on January 15, 2003 the court held the CTEA constitutional by a 7-2 decision. The plaintiffs in the ''Eldred'' case have as of 2003 begun to shift their effort toward the U.S. Congress in support of a bill called the Public Domain Enhancement Act that would make the provisions of the Bono Act apply only to copyrights that had been registered with the Library of Congress.

References

1. THOMAS: Status of H.R. 2589
2. THOMAS: Status of S. 505
3. 144 Congressional Record H9952.
4. ''Patent Arguemnts, surpra'' note 2, at 116-117 (statement of Samuel L. Clemens, author).
5. http://archive.salon.com/tech/feature/2002/02/21/web_copyright/index.html

External links

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COPYRIGHT TERM EXTENSION ACT

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Political climate

Senate Report 104-315

Support

Opposition

Challenges

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References

External links

Summary of copyright protection rules

Documentation from the United States government

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