If you blinked, you might have missed it but last month saw the most significant intellectual property judgment on the legal and economic philosophy underpinning the provision of copyright duration and scope for a generation. On Jan. 15, the US Supreme Court in the case of Eric Eldred versus John Ashcroft, attorney general, upheld the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA).
The CTEA was born out of the 1993 EU term duration directive and was largely designed to more fully align US copyright law with the EU equivalent. The directive was adopted by the EU with the primary aim of achieving greater harmonization of copyright law to promote the single market. The key change in the UK resulting from the directive was to extend the term of copyright protection provided to author-created works to the life of the author plus 70 years. Until then, this had remained constant at life plus 50 years since the 1911 Copyright Act.
The directive also introduced a retroactive application and allowed for the revival of copyright protection in respect of certain works that had already fallen within the public domain in the UK, but remained in copyright elsewhere in the EU. Surprisingly, these dramatic changes provoked little public or parliamentary debate. In contrast, the more limited CTEA, designed to satisfy the principle of reciprocity and ensure that American works received the same copyright protections in Europe as their European counterparts, was extensively debated by Congress and -- within four years of its passing -- reviewed by the Supreme Court under the terms of the US Constitution.
The principal Anglo-American rationale supporting copyright law -- that there is an overall advance in public welfare through encouraging individual effort and creativity in return for personal gain -- has been standing for almost three centuries. In 1710, the English Statute of Anne provided authors with copyrights on new works for a term of 14 years, renewable for another 14-year term, and replaced the booksellers' purported perpetual rights in existing books with a single 21-year term. Historically therefore, within common law jurisdictions, the "reward" to authors provided by copyright has been a means and not in itself an end. This public/private bargain assumes that the fullest possible public access to the product of authors' work will be facilitated by the work falling within the public domain after the limited period of exclusive control expires.
This thinking was spelled out in the US Constitution, which grants congress the power to "promote the Progress of Science ... by securing for limited times to authors ... the exclusive right to their respective writings." Specifically, the supreme court had to consider whether this prescription that copyright must be for "limited times" was infringed by the retroactive extension in its term.
By a 7-2 majority, the Supreme Court held that the CTEA did not infringe the limited times prescription. The Supreme Court adopted a literal reading of the word "limited," namely that it means "confirmed within certain bounds, restrained or circumscribed."
Arguably, such an interpretation provides a green light for any extension of the term of copyright short of perpetuity, as long as such a term remains defined within a set period.
This literal reading of the Constitution runs counter to the underlying philosophy copyright protection was historically meant to serve. The majority opinion, delivered by Justice Ruth Bader Ginsburg, alluded to these difficulties when it noted that in essence the case had been brought before it on the alleged grounds that "Congress pursued very bad policy in prescribing the CTEA's long-term aims."
Justice John Paul Stevens echoed this sentiment somewhat more forcibly in his dissenting opinion when he concluded, "Ex post facto extensions of copyright result in a gratuitous transfer of wealth from the public to authors, publishers and their successors in interest."
The decision upholding the constitutionality of the CTEA was welcomed throughout corporate America. In a statement, Disney pronounced itself "pleased with the court's ruling which ensures copyright owners the proper incentive to originate creative works for the public to enjoy." On a practical level, it means that George Gershwin's Rhapsody in Blue, F. Scott Fitzgerald's The Great Gatsby and early Disney cartoons will continue to enjoy copyright protection until 2019 at the earliest. Potentially, hundreds of millions of dollars that would have been lost had the court struck down the CTEA were saved.
It is clear that this judgment, which culminates in the standardization of a new extended term of author copyright, as introduced by the EU a decade earlier, will benefit American and European corporations alike. These worldwide corporations will, thanks to the principle of reciprocity, continue to receive considerable royalty income from works that would otherwise fall within the public domain. The benefit to authors themselves is less clear, given that any residual benefit in royalties will accrue to their estates and heirs and all but the most commercially powerful will have assigned their copyright away.
But the judgment has paved the way for further extensions in the term of copyright protection by clearing its main constitutional hurdle and in doing so has given short shrift to the philosophy of serving public welfare through the incentive of time-limited private gain.
With the commercial stakes running so high, it is only a matter of time until attempts are again made to extend the copyright term in Europe and the US. Until then it remains to be seen whether the works of Ernest Hemingway, John Steinbeck and Mary McCartney will one day be allowed to follow William Shakespeare, Mark Twain and Wofgang Mozart into the public domain.
Paul March is a media lawyer in London.
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