June 2003
Has the Duration of Copyright Turned Wrong?
by J. Michael Keyes
Introduction
Buried deep within our Constitution is a 27-word phrase that — certainly unbeknownst to the likes of James Madison — was destined to transform the world of arts and entertainment. That unobtrusive provision vests Congress with the authority "[t]o 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."1 On this phrase our federal copyright laws are founded.
In this country's fledgling years, copyright protection was limited in scope and duration. As time wore on and as technological hurdles were surmounted, copyright law expanded. In the early 1900s, purveyors of new technology and avante garde modes of expression vigorously lobbied Congress to pass legislation favorable to these new industries. The lobbyist-in-chief was the Motion Picture Association, seeking to benefit from copyright legislation that would protect motion pictures from unauthorized duplication. Success was the association's in those early days of the 20th century, and it — along with similarly situated entertainment compatriots — has racked up an impressive array of lobbying victories ever since.
The latest in the win column for the Motion Picture Association and its brethren is the Sonny Bono Copyright Term Extension Act of 1998 (hereinafter "Bono"). This appendage to the copyright law granted, among other things, an additional 20 years of protection to copyrighted works that were poised to tumble into the public domain. Numerous songs, novels and movies received this grant, thereby increasing the income streams to the entertainment industries and insiders owning those copyrights. In Eldred v. Ashcroft,2 a case billed as "the most important copyright decision in more than 100 years,"3 the U.S. Supreme Court recently upheld Bono, holding that the extension did not violate the "limited times" directive contained in the Constitution.
I do not take aim at the Eldred decision. Justice Ginsburg's majority opinion is weighty, well reasoned, historically illuminating and correct. Instead, I want to explain why copyright-term extension represents unsound public policy that may very well be bad for society.
Copyright's Pedigree and Purpose
Copyright law is several centuries old. Like many other legal constructs of our country, copyright owes its genesis to England. In 1710, Parliament passed the first copyright statute, the Statute of Anne, giving authors the exclusive right to copy their works for a period of 14 years.4 A renewal period of 14 years was also available to the author at the expiration of the original term.5 Once the renewal period lapsed, the work became part of the public domain for all to copy ad libitum. Our country's first federal copyright law was enacted in 1790, incorporating many of Anne's provisions, including the 14-year initial period of protection.6 Over two succeeding centuries, Congress has repeatedly lengthened copyright protection on numerous occasions and has broadened the ambit of what type of works receive copyright protection.7 Before Bono, copyright protection lasted for 50 years after the author had departed this world.
Despite copyright's personal-property–like appearance, authors are not the intended beneficiary of this law. As the U.S. Supreme Court noted in days of yore, "the sole interest of the United States and the primary objective in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."8 Indeed, the copyright monopoly is a "special reward"9 and a "secondary consideration"10 to the ultimate aim of enriching the public domain. The ultimate goal of copyright protection is to benefit the rank-and-file members of society, with authors receiving an incidental benefit of "limited" exclusivity to exploit their works.
The Entertainment Industry Hits the Bono Bonanza
Congress apparently believed that Bono would benefit the public domain. Congress's copyright-extension legislation assumes that a 20-year extended copyright will "strengthen" incentives to "create new and derivative works" and "create" incentives to "preserve existing works."11 These assumptions are questionable, because there is no indication that authors need more incentive or that existing works would not have been preserved without the benefit of copyright-term extension. Thus, Congress's ultimate conclusion that the public domain will be greatly enriched by copyright extension is doubtful.
A. Incentives Were Not Wanting
Congress engaged in bold speculation when it determined that incentives needed to be strengthened. In order for additional copyright duration to make any sense on the basis of strengthening the incentive for authors to create new and derivative works, there must have been some aspect of the life-plus-50-years incentive that was wanting, lacking or deficient in some respect. "Incentive" is synonymous with "motive," which is defined as "something (as a need or desire) that causes a person to act."12 Thus, if authors have no need or desire for longer copyright protection, then copyright duration extension, while perhaps a windfall or a bonus, is not properly characterized as an incentive.
Interestingly, no artists or authors testified to Congress that they would have greater incentive to create new and derivative works if Congress expanded copyright protection.13 Rather, the sole concern of the artists (or their heirs) who testified appeared to be that financial streams would run dry if copyright protection were not extended for works already in existence.14 Given the complete lack of indicia as to the authors' or artists' needs or desires for protracted copyright protection, it is highly arguable whether such an extension is necessary or will have any effect on strengthening incentives.
In fact, it seems unlikely that such a necessity to strengthen incentives could really exist. On a purely commonsense level, could it truly be possible that an author or artist would find any more incentive to create simply because the posthumous copyright protection was going to exist for nearly three-quarters of a century, as opposed to merely half a century?15 The motivations that inspire works of a creative nature are innumerable. Fame, notoriety, wealth, love, hate, loneliness, joy and sorrow are but a few.16 It seems quite likely that nowhere in that vast sea is the motive to create based on postmortem protection of an additional 20 years beyond the already extant 50-years-after-death protection.17 The congressional assertion to the contrary is dubious.
Congress also speculated that longer copyright protection for existing works will strengthen the incentive to create new works, because of the added income or subsidy that copyright owners will receive on original works.18 This subsidy is important, because the motion-picture studios and publishers supposedly rely on it to "finance the production of marginal works and those involving greater risks (i.e., works by young or emerging authors)."19 Copyright extension may provide added income to the motion-picture and publishing industries,20 but this income will not necessarily induce the creation of new works. There is nothing in Bono itself that actually requires, compels or even encourages this added income to be invested in such works of authorship.21 Thus, it is at least possible that any additional income received from copyright extension could be applied to industry-related expenses, perks or junkets that have nothing to do with the creation of new works of authorship.
Additionally, there is no indication from the legislative history that these entertainment industries would refuse or be financially unable to produce marginal or risky works without the income derived from copyright-term extension.22 This is not to say that the motion-picture and publishing industries are greed-laden and ambivalent about whether the public domain is ever enriched by the creation of new works. Rather, the point is that, in reality, the income received from those copyright extensions may have little or no impact on which marginal works are ultimately churned out by those industries. On one hand, such infusions of cash might lead to the creation of new works. On the other hand, the coffer enhancements from these infusions may be put to use far outside the realm of copyright subject-matter.
B. Preservation Is by No Means Assured
Finally, Congress assumed that without extending copyright protection, there would be no incentive for the motion-picture and publishing industries to preserve existing works.23 Thus, to incentivize the film and publishing industries to transfer these "cultural treasures" into an "easily reproducible and indelible format" — that is, a digital format — Bono provides a blanket 20-year copyright extension.24 There are two problems with the assumption that Bono is the best vehicle to ensure the preservation of these existing works of authorship.
The first problem is that Congress simply assumed that without extended copyright protection there would be no carrot to encourage digitizing works of authorship. This assumption is certainly questionable, because the actual lack of copyright protection may very well lead to a burgeoning array of creativity. This is especially true in today's technologically steeped world. Professor Lawrence Lessig recently struck upon this exact issue in his latest opus, The Future of Ideas.25 Professor Lessig argues that just because a work tumbles into the public domain does not mean there is a de facto lack of incentive to use that work in an innovative and creative manner. In fact, given the current technological tools at our disposal, the reality is quite to the contrary.
Professor Lessig recites poignant examples of how the lack of copyright protection actually induces individuals into creative and innovative action. Eric Eldred is one such consummate exemplar.26 The trappings of the Internet and the innovative practices that could take place there entranced Mr. Eldred, a former naval computer programmer.27 Almost by happenstance, he began publishing public-domain novels in HTML format on the World Wide Web.28 This hobby transformed itself into a passion and resulted in the founding of Eldritch Press, a free Web site devoted to publishing public-domain works online. Mr. Eldred's creativity and innovative ways were sparked because of the lack of copyright protection.29
It appears likely that there are other Mr. Eldreds out there who, because of existing technology, would be willing to invest time, effort and even financial resources to ensure that public-domain works are transferred into an indelible format.30 For instance, suppose that a Walt Disney film called "Mickey Mouse" was set to expire before Bono was enacted. Had that film's copyright term expired, there still would have been sufficient reasons for one to invest the time, effort and money to ensure that the work — which would have been a treasure in the public-domain chest — made its way into an indelible format. With the advent of digital video disks (DVDs), a Mr. Eldred clone could have taken the Disney film, invested the necessary time and money, and produced a DVD version. This DVD version could couple the reproduced and digitized film with such elements as a history of Disney, or Walt Disney biography, or any other multimedia enhancement that makes DVDs much more inherently valuable and attractive than their analog predecessors. Moreover, this DVD, embodying a compilation under copyright law, would be subject to copyright protection and receive the full federal armament under one of the other new appendages to the Copyright Act, the Digital Millennium Copyright Act (DMCA).31
These examples illustrate that technological advents can have a tremendously positive effect on innovation. When works of authorship are emancipated from the shackles of our copyright laws, that emancipation may lead to a renaissance of creativity and innovation — creativity and innovation that would not otherwise have transpired if the works were still subject to copyright protection.
The second problem is that it is nothing less than a major assumption on the part of Congress to think that the carrot of extended copyright protection for existing works will actually result in works being transferred into digital format. Congress simply assumes that extending copyright protection will automatically motivate movie studios and publishing houses to convert older works into digital format.32 Again, much like the lack of a requirement that these industries use funds received from extended copyright protection to fund new works, there is nothing in Bono that requires or compels copyright holders to ensure works get placed into a reproducible and indelible format.33 It may very well be that vast amounts of works that were given a 20-year extension may end up sitting on some warehouse shelf in the middle of nowhere without ever being saved to an indelible format.34 While this fate probably will not befall all of the works that receive extended copyright protection, there is no provision in Bono that would ensure or encourage another result.35
In stark contrast to the above-mentioned congressional speculations stands this unquestioned reality: Bono's protection for existing works will prohibit others from using works that would otherwise have been used but for the passage of Bono. It is incontrovertible that works in the public domain provide a fountain of opportunities and material for the creation of works that would otherwise be classified as "derivative works" under the Copyright Act.36 For example, upon falling into the public domain, The Secret Garden, written by American novelist Frances Hodgson Burnett, experienced an "explosion of new book, film, and stage versions."37 Other recent and quite successful films owe their rebirth to artists who relied on the resources available in the public domain. Jane Austen's Sense and Sensibility and William Shakespeare's Hamlet and Romeo and Juliet are three such examples. Similarly, there are numerous examples of individuals and organizations that were poised to catch copyrighted works slated to fall into the public domain but were stymied by Bono.38 Eric Eldred is one such example, but there are many more.39 For instance, the Internet Archive is an organization dedicated to "offering permanent access for researchers, historians, and scholars to historical collections in digital format."40
Distilled to its essence, Bono is the product of unsupported congressional speculation. There is no indication that there was a social need to strengthen incentives to create new and derivative works by extending copyright protection. In fact, given the rather generous amount of posthumous protection under the Copyright Act of 1976, it seems unlikely that such a need could truly exist. Additionally, there is nothing in Bono that would compel or encourage the income received from copyright extensions to be used to fund new and derivative works. Likewise, Bono contains no provisions to ensure that works embodied in older technologies will be transferred into indelible formats. Against this backdrop shines this reality: Bono will have a significant impact in quelling others from engaging in artistic endeavors.
Why Copyright Extension Is Wrong
Given that Bono is premised upon questionable congressional assumptions and the reality that Bono will stymie would-be creators from plying their trade, the following question must be posed: Does Bono embody sound copyright policy? The answer can be "yes" only if the upshot of the 20-year displacement of society's rights can be said to ultimately create a more vibrant and enriched public domain.41 Unfortunately, there is no answer to this question; for this reason, Congress should have declined to extend copyright protection.
Whether the public domain will ultimately be better off because of Bono cannot be prospectively determined by congressional prognostication or by the theories of luminaries and lobbyists in the realms of copyright law and the arts.42 The legislative branch has no idea as to whether doling out a 20-year extension for existing copyrights will ultimately enrich the public domain. Perhaps there will be no increased flow of creative juices or any industry movement to ensure older media are protected in indelible formats. Similarly, the anti-extensionists cannot assert with all certitude that Bono will strike a detrimental or harmful blow to the public domain.43 It is possible that Bono will make the entertainment industries flush with cash, which will spur them into preserving extant works of authorship and bankrolling new and derivative works that would not have otherwise been preserved or created. Whether Bono actually enriches the public domain will turn on innumerable variables.
Congress should have erred on the side of caution and not enacted Bono, because copyright extension of 20 years could lead to one of two possible outcomes. When we as a society are uncertain as to how a particular resource is going to be used, "we have more reason to keep that resource in the commons."44 Conversely, when we have a sharper understanding of how a resource will be consumed, "we have more reason to shift that resource to a system of control."45 The justification for such a position is indeed straightforward: "Where a resource has a clear use, then, from a social perspective, our objective is simply to assure that that resource is available for this highest and best use."46 This is why Bono represents bad copyright policy, at least to the extent that Bono extended copyright protection for those works that had already been created. Because Congress could not possibly know in advance what fate awaits the works of authorship given extended copyright protection, Congress should not have shielded those resources from entering the commons of the public domain.47 Had Congress not enacted Bono, the full weight of human innovation could have been brought to bear on works of authorship that would have otherwise tumbled into the public domain.48 Instead, these works protected by extended copyright may simply languish for another 20 years on warehouse shelves, thereby not enriching anything and certainly not contributing to the wealth and vitality of the public domain.
Congress should not have enacted Bono because it cannot be stated that it will have a positive effect on the public domain. The most that can be stated for Bono is that it might provide a benefit to the public domain. This is an insufficient basis for implementing a law with the depth and breadth of Bono.
J. Michael Keyes (jmkeyes@prestongates.com) is a member of the technology and intellectual property group at Preston Gates Ellis LLP in Spokane. He holds degrees from Loyola University of New Orleans and Gonzaga University School of Law, and was Harlan Fiske Stone Scholar at Columbia University School of Law. He clerked for Chief Justice Gerry Alexander in 1999-2000. This article represents the personal views of the author and does not necessarily represent the views of Preston Gates Ellis LLP or its clients.
NOTES
1. The text of the constitutional provision provides that "[t]he Congress shall have Power . . . [t]o 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." See U.S. CONST. art I, § 8, cl. 8.
2. Eldred v. Ashcroft, ___U.S.___ , 123 S. Ct. 769, 778 (2003).
3. Henry Weinstein, Ann O'Neill and Meg James, "Studios May Have the Most to Lose," L.A. Times, Feb. 21, 2002, at C1, available at www.latimes.com/business.
4. See Statute of Anne, 1710, 8 Ann., c. 93 (Eng.). The statute is named after Queen Anne, who reigned from 1702 to 1714. See Brian Forté, The Statute of Queen Anne, www.between borders.com/queenanne/index.html. Queen Anne did not, however, have much involvement with the act, as her reign was plagued with both domestic problems and strife abroad. See encyclopedia.com/html/section/annequeen _reign.asp.
5. See id. The statute indicated that after the first set of 14 years has passed, "the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years." Id.
6. See Act of May 31, 1790, ch. 15, §§ 2, 6, 1 Stat. 124, 125 (1790).
7. See Pub. L. No. 93-573, title I, § 104, 88 Stat. 1873 (1974); Pub. L. No. 92-566, 86 Stat. 1181 (1972); Pub. L. No. 92-170, 85 Stat. 490 (1971); Pub. L. No. 91-555, 84 Stat. 1441 (1970); Pub. L. No. 91-147, 83 Stat. 360 (1969); Pub. L. No. 90-416, 82 Stat. 397 (1968); Pub. L. No. 90-141, 81 Stat. 464 (1967); Pub. L. No. 89-142, 79 Stat. 581 (1965); Pub. L. No. 87-668, 76 Stat. 555 (1962).
8. United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) (citing Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)).
9. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
10. See Paramount Pictures, 334 U.S. at 158.
11. Id. at 12.
12. Merriam-Webster Collegiate Online Dictionary, at www.m-w.com.
13. See Michael H. Davis, Extending Copyright and the Constitution: Have I Stayed Too Long?, 52 Fla. L. Rev. 989, 996 (2000).
14. See id.
15. Stephen R. Barnett and Dennis S. Karjala, "Copyrighted from Now until Practically Forever," Wash. Post, July 14, 1995, op-ed page ("What author is going to decide not to write another book because copyright royalties will flow only for 50 years, not for 70 years, after her death?"); see also Peter Jaszi, Goodbye to All That — A Reluctant (and Perhaps Premature) Adieu to a Constitutionally Grounded Discourse of Public Interest in Copyright Law, 29 Vand. J. Transnat'l L. 595, 597 (1996) (arguing that "[e]xtending the term of protection for works made after the effective date of the legislation might produce some theoretical, highly attenuated effect on the creative practices of individuals. I say might, because I cannot imagine the instance in which a writer, for example, would be swayed to undertake a project by the mere possibility of 20 [more] years of posthumous royalties available only in the highly unlikely event that the work retains popularity among generations of readers yet unborn") (emphasis added).
16. See Carol M. Silberberg, Preserving Educational Fair Use in the Twenty-First Century, 74 S. Cal. L. Rev. 617, 626 (2001) (noting that creativity owes its genesis to an author's quest for "[f]ame, recognition of peers, and a desire to disseminate divergent views").
17. Moreover, even if there was a "need or desire" for additional copyright duration, it is indeed questionable whether the 20-year extension would fulfill those longings. To the extent there is an economic incentive to create additional works provided by the 20-year extension, that incentive is negligible. As explained by Dr. Hal Varian, "extending current copyright terms by twenty years for new works has a tiny effect on the present value of cash flows from creative works and will therefore have an insignificant effect on the incentives to produce such works." Affidavit of Hal R. Varian at 3, Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999), available at cyber.law.harvard.edu/eldredvreno/cyber/varian.pdf. In short, it is not at all clear that an author would be any more incentivized to create a work simply because that work was going to receive greater posthumous copyright protection.
18. See S. Rep. No. 104-315, at 12.
19. Id. at 12-13.
20. But even this congressional conclusion is debatable. See John McDonough, Motion Picture Films and Copyright, at www.law.asu.edu/HomePages/Karjala/Opposing Copyright
Extension/commentary/McDonough.html (arguing that "it can be easily shown that there are very few commercial motion pictures made before 1930 which are still bringing in the windfall of huge revenues which make these industries so profitable").
21. See S. Rep. No. 104-315, at 12–13.
22. See id. at 12–13.
23. See S. id. at 13.
24. Id.
25. See Lawrence Lessig, The Future of Ideas 122 (2001).
26. See id.
27. Id.
28. Id.
29. Id. at 123.
30. Indeed, "projects to digitize and give away millions of out-of-copyright books, movies, and music are now under way, funded by foundations, the government, and indeed corporations." Brief of Amici Curiae of the Internet Archive on Behalf of Petitioners, No. 01-618, available at www.arl.org/info/frn/copy/ia_brief. html; see also Litman, supra note 78, at 173 (observing that history has shown that a "variety of new media flourished and became remunerative when people invested in producing and distributing them first, and sorted out how they were going to protect their intellectual property rights only after they had found their markets").
31. The Copyright Act defines a "compilation" as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101. A compilation is protected by copyright. See Feist Publ'ns, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 358 (1991) (noting that copyright in compilation is limited to the compiler's original "selection, coordination, and arrangement"). Thus, this compilation would be subject to copyright protection. Moreover, the DMCA would prohibit third parties from "accessing" this DVD without the permission of the copyright holder of the compilation. See 17 U.S.C. § 1201(a) (providing that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title."); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444 (2d Cir. 2001) (holding that those individuals who "decrypt" an encrypted DVD with the authority of a copyright owner are exempted from liability under the DMCA; however, authority to "view" a DVD does not create a right to decrypt a DVD).
32. See S. Rep. No. 104-315, at 13.
33. Id.
34. See John McDonough, Motion Picture Films and Copyright Extension, at www.law.asu.edu/HomePages/Karjala/OpposingCopyright
Extension/commentary/McDonough.html (opining that copyright extension will not result in greater distribution of older films, "because in most cases their copyright owners are not exploiting them today and have not exploited them for decades").
35. See supra, note 2.
36. A derivative work means a work that is "based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101 (1998).
37. Dennis S. Karjala, Copyright Extension Would Enrich Heirs, Impoverish Culture, at www.law.asu.edu/HomePages/Karjala/Opposing CopyrightExtension/commentary/AzRep9-01-98.html.
38. There is also a financial benefit that often results as works fall into the public domain. For example, when a popular novel makes its way into the public domain, new publishers often take that work and reproduce it with "a wide range of versions of differing production qualities and prices, giving the public more choice at a lower price." Id. Moreover, when musical theater works go into the public domain, "schools, churches and community theaters can stage them without worrying about what is often a prohibitively high royalty payment." Id.
39. See Lawrence Lessig, The Future of Ideas 122 (2001).
40. Brief of Amici Curiae of the Internet Archive on Behalf of Petitioners, No. 01-618, available at www.arl.org/info/frn/copy/ia_brief. html.
41. After all, the goal of any copyright policy is to ensure that the policy is crafted in such a manner as to ultimately benefit the public welfare. See United States v. Paramount, 334 U.S. 131, 158 (1948) (citing Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)).
42. Marci A. Hamilton, Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent. L. J. 655, 657 (1996) ("The fact is that we do not really know what difference twenty extra years would make.").
43. See, e.g., Brief of Amici Curiae of Association of Law Libraries, American Library Association, Association of Research Libraries, Digital Future Coalition, Medical Library Association, and Society of American Archivist in Support of Petition for Writ of Certiorari, Eldred v. Ashcroft, No. 01-618 (concluding that "[u]nless the decision of the D.C. Circuit is reversed, Bono and subsequent extensions of copyright terms will continue to impede the growth of the public domain."), available at www.arl.org/info/frn/copy/Ashcroft.html.
44. Lessig, at 88-89, note xlii.
45. Id.
46. Id.
47. See id.
48. See id. Ironically, Senator Orrin Hatch, one of the leading figures in promoting Bono, noted that "copyright protection should be expanded unless the extent of such protection would hamper creativity or the wide dissemination of works." Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. Pitt. L. Rev. 719, 735 (1998) (emphasis added).
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