Roger P. Foley
Art and Entertainment Law
Professor Krieger
27 November 2002
Eldred v. Ashcroft and why the U.S. Supreme Court Should Reject
the Entertainment Industry’s Thinly Veiled Attempt to Circumvent the
Limitations of the U.S. Constitution’s Limits on Copyright Protection Laws
Among the most important issues facing the entertainment industry today is the
scope and level of protections available to the industry for its works. Chief amongst
those protections are the federal copyright laws. These laws are now under considerable
scrutiny as the United States Supreme Court decides whether or not to strike down as
unconstitutional a major extension of the terms of protection provided for in those laws.1
As will be discussed, it is by no means accepted truth that the extension of the term of
protections of the copyright laws is beneficial for the entertainment industry or even for
society as a whole. Indeed, many argue that the chief proponent of the extension, Walt
Disney Company (“Disney”), is being incredibly hypocritical.2 According to the critics,
Disney has consistently exploited literary and other works whose copyrights have lapsed,
and now, having improved or redone the works into a newly copyrighted film or other
work seeks to extend copyright protection so that others cannot do that which it has
already done.3
As a result, Mickey Mouse has become the lightning rod for a major battle
between owners of copyrights and those who believe the laws are too protective of
copyright owners. The first Mickey Mouse cartoon,“Steamboat Willie” was copyrighted
1
Eldred v. Ashcroft, Case No 01-618 (Oct. 11, 2001).
John Bloom, Right and Wrong: The Copy-Right Infringement (2002) at http://www.nationalreview.com.
3
Id.
2
1
in 1928, and as such was scheduled to enter the public domain in 2003, potentially
leaving Mickey Mouse’s master, Disney, unprotected.4 Characters such as Donald Duck
and Goofy would have followed shortly thereafter.5 Rather than allowing Mickey and
friends to enter the public domain, which would cost Disney billions of dollars, Disney
and its friends in the entertainment industry, undertook a massive campaign to convince
Congress to pass a copyright extension bill.6 In support of their request Disney and the
industry donated more than $7.8 million dollars to all congressional candidates’ 19971998 campaign coffers.7 This big dollar financial lobbying convinced Congress to pass
the Sonny Bono Copyright Term Extension Act in 1998 (“CTEA”).8
The CTEA9 adds 20 years to the renewal terms of pre-1978 copyrights (making
them effective for a period of 95 years from first publication).10 It also adds 20 years to
the term for works created after 1977, which copyrights do not have to be renewed and,
also sets the term of copyright at life plus seventy years for individual authors and at 95
years from publication for corporate authors.11 This effectively prevents works that were
due to enter the public domain in the near future from being utilized by the general public
for another twenty years.
The CTEA, however, has attracted substantial critics predominantly from
intellectual circles.
Critics of the CTEA argue that it should be struck down as
4
Chris Sprigman, The Mouse that Ate the Public Domain: Disney, The Copyright Term Extension Act, and
Eldred v.Ashcroft,” (2002) at http://www.writ.news.findlaw.com
5 Id.
6 Id.
7
Id.
citing
The
Non-Profit
Center
for
Responsive
Politics
at
http://www.opensecrets.org/industries/summary.asp?Ind=B02&cycle=1998&recipdetail=A&sortorder=U.
8 Id.
9 Sonny Bono Copyright Term Extension Act in 1998, Pub.L. No. 105-298, Title I, Section, 101, 112 Stat.
2827.
10
Id.
11 Id.
2
unconstitutional both on First Amendment grounds and on the basis that it was outside
Congress’s power under the U.S. Constitution’s “promotion of progress of science”
clause quoted below. Foremost among these critics is Eric Eldred, a hobbyist, who
publishes rare books online for others who may not otherwise be able to view such lost
works.12 Eldred argues that the CTEA is “unconstitutional because it prevents works
from entering the public domain, diminishing access to information in violation of the
First Amendment,13 but did not increase authors’ incentives to create.”14 The intellectual
community has rallied around Eldred. Indeed, now that Eldred’s case has reached the
U.S. Supreme Court scores of groups have filed amicus curiae briefs supporting his
position.15
The defense of the CTEA has fallen to the U.S. Department of Justice.16 The
government in its defense of the CTEA argues that the provisions of the CTEA, including
the extension provisions, are consistent with the copyright clause of the United States
Constitution which grants Congress the power:
To promote the progress of science and the useful arts by
securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries.17
The government asserts that CTEA meets the “promotes requirement”
requirement in several ways by: 1) harmonizing copyright law with the law of the
Joyce Slaton, “A Mickey Mouse Copyright Law,” Wired, January 13, 1998; see also Brief of Petitioners,
Eldred v. Ashcroft, Morris Tyler Moot Court of Appeal at Yale, at 1, available at
http//eon.law.harvard.edu/openlaw/eldredvashcroft/reference/yale-mootcourt.html.
13
The First Amendment issues are beyond the scope of this paper, instead, this paper will focus on the
arguments relating to the “promotion of progress of science” clause.
14
Brief of Petitioners, Eldred v. Ashcroft, Morris Tyler Moot Court of Appeal at Yale, at 4, available at
http//eon.law.harvard.edu/openlaw/eldredvashcroft/reference/yale-mootcourt.html.
15 See Docket Eldred v. Ashcroft, U.S. Supreme Court, Case No, 01-618 (Oct. 11, 2001)
16 Id.
17
Brief of Respondents, Eldred v. Ashcroft, Case No, 01-618 at 9, 39 (Oct. 11, 2001), citing U.S. Const.
art. I, §8, cl. 8.
12
3
European Union; 2) encouraging the preservation of at-risk materials; and 3) providing
more financial resources for potential authors.18 Of these, the principal argument in favor
of upholding the CTEA is that it is essential to harmonize the U.S. copyright laws with
those of the European Union.19 The case was argued on October 9, 2002 and a decision
is expected in summer 2003.20
As will be discussed in this paper, the government’s arguments while facially
supportive of the CTEA, once examined, are actually inconsistent with the Framer’s
intent in adding the “promotes requirement” to Art. I, §8, cl. 8, of the U.S. Constitution.
KEEPING UP WITH THE JONES FAMILY IS
UNPERSUASIVE ARGUMENT IN SUPPORT OF THE CTEA
AN
The proponents of CTEA argue that it would be wise to extend copyright
protection in the United States to a term of the life of the author plus seventy years,
because it would match the term recently adopted in Europe under the European Council
Directive (“EC Directive”). British novelist Julian Barnes, however, disagrees in his
recent article where he states that the European Union’s version of the law has produced
nothing but ambiguity, absurdity, and litigation since being modified itself.”
21
At the
very least, he wrote, “the situation will be foggy until the full cycle of appeals has been
exhausted.”22
The government’s view of harmonization with the European Union is analogous
to the proverbial neighbors’ attempt to keep up with the Jones Family. However, similar
to the proverbial Jones’ neighbor, just because the E.U. extended copyright protection to
a term of seventy years after the death of the author does not mean that the United States’
18
Id. at 9-23.
Id.
20 See Docket Eldred v. Ashcroft, U.S. Supreme Court, Case No, 01-618 (Oct. 11, 2001)
21
Julian Barnes, Copyright Wrongs, Wall Street Journal (January 31, 2001)
22 Id.
19
4
decision to follow suit is correct. The original goal of copyright protection was to foster
the continual progress and innovation of a man and his works. Such goal is expressly
included in the United States Constitution, Article 1, Section 8 which vests Congress with
the right, “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.”
In adding this clause to the Constitution, our forefathers sought to further
innovation by offering an adequate level of protection to guard against infringement, but
not so much individual protection as to stall progress and hinder future innovation. The
concept was simple: protect the creator’s innovation long enough that he can make a
profit from his creation but not so long as to prohibit others from furthering or improving
on that creation – thereby creating a necessary balance of protection and furtherance of
creativity.23 Congress, in passing the CTEA forgets that protection of an individual’s
work, or in this case a multi-million dollar corporation’s copyright, is not paramount to
innovation. The two must be balanced. This balance allows the author’s works to be
protected for a sufficient time and then enter the public domain where it can be used,
manipulated, and improved in a manner which fosters the innovative and creative spirit of
man. By tilting this balance of protection, Congress in passing the CTEA now has
copyright owners more concerned about protecting the financial benefits to be derived
from their inventions, than about improving them so that all of society may benefit.
23
This balance was a key principal underlying the addition of the copyright clause to the Constitution, as
expressed in correspondence between Jefferson and Madison. In their correspondence, they expressed:
“Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the
profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this
may or may not be done, according to the will and convenience of the society, without claim or complaint
from anybody.” See http://digital.library.upenn.edu/books/bplist/archive/1999-02-11$2.html
5
An example of such a tilted balance can be seen by examining a current patent
dispute.24 In that case, the drug company, AstraZeneca, which makes Losec -- the
phenomenal “purple pill” that, for the last five years, has been the world's biggest-selling
prescription drug -- holds a U.S. patent on that drug which was due to expire in April of
2001.25 The company secured a six-month patent extension based on its assertion that
Losec has a “new “additional use for pediatric disorders. AstraZeneca’s critics contend
that the company is making immaterial changes to the drug, which offer no new benefit
to users or society as a whole, and is strategically varying the molecular structure for the
sole purpose of artificially extending the patent rights which afford the company more
than $4 billion dollars a year in sales.26 At the same time, these extensions prevent others
from improving on the drug or from providing the drug at a lower cost to consumers.27
Elliot Hahn, president of the Florida pharmaceuticals firm Andrx, says: "They've taken a
single patentable idea, extended it and extended it well beyond its life cycle, using deft
manipulation of the litigation process."28 He accuses Britain's second largest drug firm of
filing "extremely weak and, in some cases, manifestly bogus" intellectual property claims
first to keep the legal process going beyond the allowable period.29 Such harboring and
extended protection of this invention dwarfs new and innovative ideas and
improvements.30
The net result is research laboratories with more lawyers than
Andrew
Clark,
AstraZeneca’s
Purple
Pill
Show,
http://www.guardian.co.uk.business/story/0,3604,533166,00.html
25 Id.
26 Id
27 Id.
28 Id.
29 Id.
30 Id.
24
6
(August
7,
2001)
at
researchers, which increases costs to the consumer and less innovation.31 The CTEA
threatens a similar result in the area of copyright protections.
A fundamental flaw in the government’s harmonization argument is that keeping
pace with the E.U. does not signify harmonization with the rest of the world. The United
States is not a member of the European Union but it is a member of the Berne
Convention.
The Berne Convention requires the life plus 50 rule and most of its
members believe that rule to be satisfactory, as evidenced by their strict adherence to
Berne.32 In fact, on October, 11, 2002, just two days after the United States government
argued harmonization as a global standard, Taiwan rejected U.S. demands to increase its
copyright terms by 20 years.33 There are 149 countries that adhere to the rules and
regulations of Berne.34 More than two-thirds of those countries subscribe to the “life plus
50 rule” as opposed to the minority one-third which adheres to the “life plus 70 rule”
which the government contends the U.S. needs to harmonize with.35 Indeed it may be
argued that the U.S., through adoption of the CTEA, has actually digressed from the
majority of harmonized countries to the minority. 36 It may be further argued that the
United States has a better opportunity for achieving world harmonization by adhering to
“life plus 50 rule” than the rules proscribed by the CTEA.
More importantly, however, even accepting the need to harmonize with the E.U.,
the government’s argument regarding harmonization is somewhat deceptive. Marybeth
Peters, Register of Copyrights, testified before the U.S. Congress that the bill “does not
31
Id.
See J.H. Reichman, The Duration of Copyright and the Limits of Cultural Policy, 14 Cardozo Arts &
Ent. L. J. 625, 628-31 (1996).
33
Lawrence Lessig, Time to End the Copyright Race, (October 16, 2002) at
http://www.financialtimes.com.
34
See National Copyright Legislation, available at http://www.unesco.org/culture/copy
35
Id.
36
Brief for petitioners, Eldred v. Ashcroft, Case No 01-618 (Oct. 11, 2001).
32
7
completely harmonize our law with the [E.U. Directive].”37 For example, there are
instances where, under the CTEA, the U.S. copyright term will exceed that of the E.U.’s
protection and vice-a-versa – a result which scholars contend actually increases the
disharmony between the U.S. and E.U..38 As additional evidence that “harmony” will, in
practice, be virtually impossible to achieve, it now appears that many Europeans are
pushing for yet another extension of copyright terms.39
In fact, to see the flaw in the government’s harmonization argument, one need
only look at the European Union’s treatment of the problem, which attempts to
harmonize E.U. Rules with those of countries offering less protection by implementing
the “rule of the shorter term.”40 This “rule of shorter term” allows the majority of the
countries to receive the same protection which that country gives to the E.U.’s works.
For example, if Canada adhered to the life-plus-50 rule, then members of the European
Union would only protect Canadian copyrighted works for terms of life-plus-50 as well.
Proponents argue that this will result in “ …20 years during which Europeans will
not be paying Americans for their copyrighted works, while a similar European work
would be protected.”41 That is analogous to the glass is half-empty analysis. However,
Joseph A. Lavagine, replies the glass is half full when he states, “these individuals
37
Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H.R. 989, H.R. 1248,
and H.R. 1734 Before the Subcomm. on Courts and Intell. Prop. of the House Comm. on the Judiciary,
104th Cong., 420 (1995)
38
See Dennis S. Karjala, Chart Showing Changes Made And The Degree Of Harmonization Achieved And
Disharmonization Exacerbated By The Sonny Bono Copyright Term Extension Act (CTEA) Created May
15, 2002.
39
Lawrence Lessig , Time to End the Copyright Race, (October 16, 2002) at http://www.financialtimes.com
40
European Union Directive 93/98/EEC on Copyright Term of Protection Article 7 (Protection vis-à-vis
third countries where the country of origin of a work, within the meaning of the Berne Convention, is a
third country, and the author of the work is not a Community national, the term of protection granted by the
Member States shall expire on the date of expiry of the protection granted in the country of origin of the
work, but may not exceed the term laid down in Article 1).
41
141 Cong. Rec E379 (daily Ed. Feb. 16, 1995) (statement of Representative Carlos Moorehead of
California).
8
[proponents] fail to realize that during those same twenty years, Americans will not be
paying Europeans for their copyrighted works either.” 42 The intellectual dishonesty of
the proponents’ arguments is perhaps best demonstrated by the fact that proponents
profess to be concerned about Americans losing money if copyright terms are not
extended, yet, however, the CTEA actually costs American creators even more money
because it fails to contain a “rule of shorter term.” The CTEA’s failure to have a “rule of
shorter term” increases copyright protection for all works in the United States, regardless
of origin, therefore extending the cost to Americans who seek to use a foreign creators’
expired copyright. Thus, under the CTEA, which has “no rule of shorter term,” an
adhering Berne member who allows its authors a protection of life plus 50 years will
receive 20 years additional protection in the U.S., although in his origin country
copyright protection has already ended. This means members of that Berne country need
not pay for the use of that work but Americans wishing to use the same work at the same
time, would be required to pay compensation to the copyright owner.
The CTEA is even less harmonized with respect to certain authors, certain kinds
of work, and some works in particular. CTEA increases disharmony, for example, with
respect to “corporate authors.” The E.U. offers “corporate authors” in countries like the
United States where that concept is recognized a term of protection for 70 years, whereas
the CTEA expands the term of protection for “corporate authors” to 95 years or 120 years
if the work is unpublished.43
This is particularly troubling because, historically, the goal of copyright
42
Joseph A. Lavagine, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act
of 1996, 73 U.Det. Mercy L.Rev. No.2 Winter 1996.
43
See Jane C. Ginsburg, Copyright Legislation for the “Digital Millennium, 23 Colum.-VLA J.L. & Arts
137, 172 (1999).
9
protections in the U.S. has not been to create wealth, but rather to stimulate innovation.
The European Union has always had a far different intellectual property theory. The E.U.
proscribes to a natural rights theory that treats copyright protection as a simple
entitlement.
44
Accordingly, the E.U. theory on copyright is to enrich creators of work
rather than to enrich society. In the United States, however, copyright protection has
always been based on the U.S. Constitution’s directive in Article 1, Section 8 which vests
with Congress the right “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”. (Emphasis added). Promoting the progress of large
corporations and creating monopolies for copyright owners was not the intent of the
forefathers. “The monopoly privileges that Congress may authorize are neither unlimited
nor primarily designed to provide a special private benefit. Rather, the limited grant is a
means by which an important public purpose may be achieved. It is intended to motivate
the creative activity of authors and inventors by the provision of a special reward, and to
allow the public access to the products of their genius after the limited period of
exclusive control has expired.”
45
Thus, as expressed by the Supreme Court, the U.S.’s
constitutional directive on limited economic incentives rejects any notion of natural
rights.46 Yet, by enacting the CTEA and extending the term of copyright protections to
44
See Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986
5-6 (1987) “([Eighteenth century French copyright laws placed authors’ rights on a more elevated basis
than the [British] Statute of Anne. . . . [T]he rights being protected [were treated] as being embodied in
natural law. . . . This new conception of author’s rights had a great effect on the law of France’s neighbors.
. . .”).
45
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
46
See 33 U.S. (8 Pet.) at 657-63, see also H.R. Rep. No. 2222, at 7 (1909): The enactment of copyright
legislation by Congress under the terms of the Constitution is not based on any natural right that the author
has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but
on the grounds that the welfare of the public will be served and the progress of science and useful arts will
be promoted. . . . By the same token, in the United States copyright is viewed as an “impingement on the
10
serve the whims of entertainment giants such as Disney, Congress is doing nothing more
than creating de facto natural rights in copyright owners.
Consequently, the argument for harmonization with the European Union cannot
support the argument for upholding the CTEA if we are to adhere to the clear language of
our own constitution. The purpose of the U.S. Constitution, in Article 1, Section 8 is “to
promote the progress of science and useful arts” to the public, not to benefit any private
enterprise. Indeed, as explained by the U.S. Supreme Court “the sole interest of the
United States and the primary objective in conferring the [limited] monopoly …lie in the
general benefits derived by the public from the labors of authors. 47 Thus, the suggestion
that Congress properly exercised its power in passing the CTEA in order to harmonize
U.S. law with the E.U. Directive, is not only contrary to the above-mentioned
constitutional authorities, but is also contrary to the best interest of society as a whole.
THE GOVERNMENT’S ARGUMENT THAT THE CTEA
ENCOURAGES THE PRESERVATION OF AT-RISK MATERIALS
IS WITHOUT MERIT
The government’s alternate argument that term extensions promote the
preservation of works, especially historical films, is similarly without support.
An
amicus brief filed by the College Art Association48 demonstrated that no credible
evidence was presented to Congress or the lower courts that would indicate assertions
made by the government had any validity.49 In contrast to the government’s position, the
public domain,” a concept that would have no meaning in the European philosophical context. See L. Ray
Patterson, Free Speech, Copyright and Fair Use, 40 Vand. L. Rev. 1,7 (1987).
47
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), quoting Fox Film Corp. v. Doyal,
286 U.S. 123, 127 (1932); see also Nimmer on Copyright §1.03[A] (2001) (stating that the “primary
purpose of copyright is not to reward the author, but . . . to secure the general benefits derived by the public
from the labors of authors.”
48
See Brief or Amicus Curiae, College Art Ass’n., at 19-20 (premised on Copyright Term, Film Labeling,
and Film Preservation Legislation: Hearings on H.R. 989, H.R. 1248, and H.R. 1734 Before the Subcomm.
on Courts and Intellectual Property of the House Comm. on the Judiciary, 104 th Cong. (1995)).
49 Id.
11
College Art Association’s brief argues that “extended terms reduce the likelihood that the
films will be restored.”50 For a film to be restored, a determination must be made if it is
copyrighted, and then the person or company holding the rights to it must be located.
However, this becomes very difficult for older works or for copyright holders who have
simply disappeared. If the copyright owner cannot be found, then the public must wait
until that work enters the public domain, which means another 20 years for many works.
This increased period of time makes preservation impossible for independent enthusiasts
and entrepreneurs due to decomposition.51
In contrast, the government’s argument assumes that the work is always in the
possession of the person or entity accorded the copyright, which is often simply not the
case.52 Even if, a person or entity has acquired both the copyright and the tangible work,
it is unlikely that they are stored in a manner conducive to their preservation.53 Studies
have shown that those in possession of the actual work often cause their destruction by
improper handling or careless disregard.54 All of these factors would indicate a need for
works, such as deteriorating films, to be placed in the public domain sooner rather than
50
Id.
See John McDough, Motion Picture Films and Copyright Extension (2002), at
Http://public.asu.edu/~dkarjala/commentary/McDonough.html (cited in Brief of Amici Curiae National
Writers Union No. 01-618 at 22.
52
See e.g. 17 U.S.C. §202 (ownership of copyright is distinct from ownership of any material object in
which a work is embodied).
53 See Brief or Amicus Curiae, American Ass’n . of Law Libraries., at 26 (citing National Film Preservation
Board, Film Preservation 1993: A Study of the Current State of American Film Preservation: Report of the
Librarian of Congress § 2 (1993) (“1993 Film Study”).
54
See National Film Preservation Board, Film Preservation 1993: A Study of the Current State of
American Film Preservation: Report of the Librarian of Congress § 2 (1993) (“1993 Film Study”) (“a great
percentage of American film has already been irretrievably lost — intentionally thrown away or allowed to
deteriorate”; “fewer than 20% of the features of the 1920s survive in complete form”; preservation
problems most acute for works of little commercial value, like newsreels, documentaries, avant-garde and
independent productions); see also 1 National Film Preservation Board, Television and Video Preservation
1997: A Report on the Current State of American Television and Video Preservation: Report of the
Librarian of Congress, Executive Summary (1997) (kinescope or film copies of early live television
broadcasts were made selectively, other programs deliberately destroyed, videotapes erased and recycled;
most devastating losses are of local television station news footage).
51
12
later, where they can be transferred to a longer lasting medium, not left to decay for
another 20 years.55
The government’s preservation argument also incorrectly equates the idea of
preservation to progress in an attempt to fit within the language of the Constitution’s
copyrights clause.
The two terms, however, are distinctly different by definition.
“Preservation” is synonymous with maintenance, conservation, and safeguarding, while
“Progress” relates to growth, development, and forward movement.56 The government
argued to the appellate court that an existing copyright may not actively stimulate
creative development, but that the CTEA does induce would-be extended copyright
holders to preserve existing works, such as old films.57 But as previously discussed,
“preservation” does not equal “promotion” and therefore, this argument fails to establish
that the retroactive extension of copyrights accomplishes the “promotion” directive set
forth in the copyright clause of the Constitution.
PROVIDING MORE FINANCIAL RESOURCES FOR POTENTIAL
AUTHORS THROUGH RETROSPECTIVE TERM EXTENSION IS
THE GOVERNMENT’S WEAKEST ARGUMENT
The fact that the CTEA will provide current copyright holders extended term
protection is irrelevant when you consider that many of the original creators have been
deceased for many years. Any resulting payments will either go to their families or to
entertainment companies. From a common sense standpoint it is doubtful that a family
member two generations removed from the creator will use any proceeds derived from
55
Id.
Webster’s new World Dictionary and Thesaurus, Second Edition, May 2002.
57 Brief of Respondents, Eldred v. Ashcroft, Case No, 01-618 at 9, 39 (Oct. 11, 2001).
56
13
the CTEA to create new works.58
However, it may be argued that entertainment
companies will refinance profits from existing works into new enterprises. However, this
amounts to a corporate subsidy rather than an incentive to create.59
More importantly, however, future authors will have added disincentives to create
new “improvements” due to the CTEA. Works that would have been in the public
domain, and therefore free to be used by anyone, will need to be cleared by the owners of
the copyright. That means not only unnecessary financial cost for using the rights, but
also creates stumbling blocks on how the work may be used from a creative standpoint.
Owners of the copyright may not agree with the new artists’ perspective and could
impose limits on its use. These factors hinder the creative process.
CTEA VIOLATES THE “LIMITED TIMES” REQUIREMENT OF
THE COPRIGHT CLAUSE
The lower court in Eldred has upheld that CTEA's extension of limited times is
within the discretion of Congress. 60 And Congress has used that discretion eleven times
in the past forty years.61 This virtually perpetual extension of terms amounts to an
unconstitutional misuse of Congress’s power in direct conflict with Article !, Section 8,
of the Constitution’s clear directive that the terms of a copyright shall be limited. The
constitution was written in a manner that dictated that copyright protection be “limited”
58
See United Christian Scientists v. Christian Sci. Bd. of Dirs., 829 F. 2d 1152, 1168 n. 84 (D.C. Cir.
1987) (“[A] grant of copyright protection after the author’s death to an entity not itself responsible for
creating the work provides scant incentive for future creative endeavors.”).
59
See, e.g., 1995 Senate Hearings, supra note at 55-57 (statements of Don Henley, Bob Dylan and Carlos
Santana) ( asserting that support of the CTEA was based primarily on the potential exploitations of their
grandchildren); compare with S. Rep. No. 104-315, at 32 (1996) (statement of Sen. Brown in dissent):
There is nothing in the hearing record that suggests extending the copyright term will result in more works
or higher quality works. Indeed our success as a nation of creators suggests the opposite: another 20 years
of revenue from current works might, for example, subsidize new motion pictures. However, this is more a
corporate subsidy than an incentive to create.
60
Eldred v. Reno, 74 F. Supp. 2d 1, 3 n. 6 (D.D. C. 1999) (citing Schnapper v. Foley, 667 F. 2d 102, 112
(D.C. Cir. 1981), cert. denied, 455 U.S. 948 (1982).
61
Eldred v. Reno, 239 F. 3d at 381.
14
so as to prevent unfair monopolies.62 “Limited times” appears in the copyright clause to
confer a temporary right upon man so that he may protect his created work for a
reasonable time enabling him to recoup his expenses and make a reasonable profit. 63 The
obvious effect of the financial incentive was to motivate a creator so that he would
continue to create and that as a result all of society would benefit from those creations
both before and after they entered the public domain.64
It was intended that upon
expiration of these “limited times” of protection that works would enter the public
domain where they could be used fully and liberally by all society. 65 Such limited times
was intended to encourage potential creators to tinker, twist, and adjust works that had
entered the public domain in a manner that ultimately altered the then existing creation
into a more advanced one. This has been the logic since the adoption of the U.S.
Constitution and our society has flourished as a result. Now the CTEA threatens the
public domain- the place society has historically gone to as a fertile ground to accelerate
creative advances. Thus, the CTEA may seriously disrupt creative progress; however,
the real danger is that we may not fully realize the extent of this disruption for several
years – when the damage may already be too advanced.
CONCLUSION
As set forth in the discussion above, Congress’s enactment of CTEA and the
government’s defense of same is nothing more than a thinly disguised attempt to
circumvent the Framer’s explicit intent to limit the term of copyright protection in favor
of the societal goal of promoting and fostering progress and innovation. By claiming that
62
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
Joseph A. Lavagine, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension
Act of 1996, 73 U.Det. Mercy L.Rev. No.2 Winter 1996.
64 Id.
65 Id.
63
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extensions for a set limited term are still “a limited time,” Congress and proponents of the
CTEA have created tremendous uncertainty, because what they call limited today may
change at a moment’s notice. The result is that no artist can rely on a work ever entering
the public domain again.
That means no tinkering, twisting, or adjusting for what
amounts to an indefinite time because every day one must wonder when will Congress
change it again, which obviously hinders creation and threatens to create a “monopoly of
the work already in existence.”66 Such a result, threatens the very core of this country’s
legacy of progress and innovation. To argue that this extension is necessary to harmonize
U.S. law to the view in a minority of jurisdiction merely highlights the fact that the
CTEA is nothing more than an effort to appease a special interest group – the corporate
giants of the entertainment industry.
This is simply inconsistent with the explicit
provisions and limitations of Article I, Section 8, Clause 8, of the U.S. Constitution.
Therefore, for the foregoing reasons the Supreme Court should find that the CTEA
violates the Copyright clause of the U.S. Constitution and strike it down as
unconstitutional.
66
See Trade-Mark Cases, 100 U.S. 82, 94 (1879) (cited in Morris Tyler Court of Appeals At Yale- Spring
Term 2002 No. 01-618 by Chrimene Keitner and Travis Leblanc).
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