The Copyright Clause of the U.S. Constitution. art. I, sec. 8, cl. 8. states:
"The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors... the exclusive Right to their respective Writings..."
The Framers of the Constitution thus entrusted Congress with a duty to"promote" the growth of knowledge via copyright law. When the first Congress enacted the Copyright Act of 1790, the 28-year time limit on every copyright ensured that the author's need to generate revenue was balanced with the public's access to information.
In recent decades, however, Congress and the federal judiciary have both lost sight of the Copyright Clause's original intent. In Eldred v. Ashcroft, 537 U.S. 186 (2003), the U.S. Supreme Court downgraded the Copyright Clause's artful purpose from a requirement to a recommendation. Writing for the majority, Justice Ruth Bader Ginsburg found in Eldred that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives."
Unfortunately, Congress has not given the American people much thought whenever it has amended federal copyright law in recent years. The dispute in Eldred centered around the Copyright Term Extension Act (CTEA), which critics deride as the "Mickey Mouse" Extension Act. Enacted in 1998, the CTEA had a simple, straightforward purpose: to grant a time extension to copyright owners facing expiration of their older copyrights. Unlike the Framers and the First Congress, who were concerned with the balance between published authors' rights and the future growth of the arts, our current Congress has embraced a one-sided love affair with America's major publishing companies. Corporate copyright owners have become one of Washington's most powerful special interest groups, to the detriment of the public domain.
Ironically, I'm not against the idea that authors should enjoy long terms of protection for their copyrights. I actually support the federal law protecting works created since 1978 for the life of the author plus 70 years. It surprises me that opponents of the CTEA seem unmoved by the fact that, if Congress had simply granted all pre-1978 copyrighted works the same duration that new works enjoy, this uniform "author's life+70" rule for copyright duration would have been even more generous than the CTEA.
Take, for example, "I Got You Babe," the 1965 hit single written by late Congressman Sonny Bono. Bono, who had been an original sponsor of the CTEA, died tragically in an accident at age 62, just months before his bill was finally passed into federal law. The copyright in "I Got You Babe" is set to expire in 2060 under the CTEA. If, however, Congress had simply decided to grant works published before 1978 the same term of protection that authors have gotten since 1978, Bono's copyright in "I Got You Babe" would continue until 2068.
Let's also look at Willie Nelson's repertory. When you look at Willie's songwriting career, the CTEA limits his older copyrights to an even shorter term than what the "author's life +70" rule provides him for his songs written since 1978. "Crazy," his 1961 hit song with Patsy Cline, is set to expire in 2056 under the CTEA. On the other hand, every song Willie has written since 1978, including "On The Road Again," cannot enter the public domain before 2087 (God willing, Willie'll keep on truckin' long past 2017!).
My problem with the Eldred opinion is not the result. The CTEA extensions are not nearly as controversial as its opponents would have you believe. Instead, my problem is with the Court's refusal to curb Congress' one-sided approach to copyright policy. In recent years, our elected officials have developed a bad habit of giving into the special interests and lobbyists of corporate copyright owners. Prof. Peter Jaszi said it best when he described Congressional policy as "a perpetual copyright on the installment plan" for the major publishing houses of the 20th century.
We're taking the rest of the month off. After the holidays, we'll continue our bleak outlook on American copyright law. Our story only gets more cynical when we revisit ZZ Top's court battle to sing the blues. Congress' rapid response to shield corporate music powerhouses from the 9th Circuit's decision in favor of ZZ Top can only make music fans and recording artists more despondent about the current state of affairs in Washington.
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