Drawing a line on copyright
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The battle over Napster, the formerly free music-swapping Web site, added the word "copyright" to every junior high-schooler's vocabulary. But what they might not have understood is just how far copyright law has now gone in keeping vast quantities of creative material out of the public domain. A lawsuit that has so far failed to put a limit on the excesses of current copyright law should be given a hearing by the U.S. Supreme Court.
The Copyright Clause in the Constitution gives Congress the power "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." The phrase lays out the government's role in protecting intellectual property as a way of encouraging creative endeavors.
But the founders included the term "for limited times" to alert Congress that copyright protection is not permanent. The public at-large has an interest in gaining access to, enjoying and building on the works of artists, authors, scientists and inventors. And, over time, the public interest grows stronger. However, the creators and their heirs have been able to pressure Congress to extend copyright protection. After all, copyright holders are generous campaign contributors.
For about as long as there has been a Congress, it has put the interests of the creators ahead of the public interest, by repeatedly extending copyright protection to a point where now, the public has to wait more than a lifetime for intellectual property -- music, art, books, even computer code -- to pass into the public domain. The last change was in 1998 with the passage of the Copyright Term Extention Act, which extended copyright protection to the life of the creator plus 70 years.
Why should we be concerned about this? Because this is not just a matter of paying royalties to authors, it is about gaining access to our culture. Copyright means control -- a control that sometimes can be arbitrarily wielded.
In a lawsuit challenging the constitutionality of CTEA, the plaintiffs include a non-profit distributor of free electronic versions of books, a company that reissues out-of-print books, a choir director who can only purchase relatively inexpensive music for his students, and a company that preserves old films, something that can only be done with the permission of copyright holders who are often hard to find. The litigants are all people and companies interested in moving works into the public domain so they can be made more widely available to the public. Of course, if they should ever win their case, for-profit groups also would stand to benefit financially.
The plaintiffs asked a federal court to rule that Congress exceeded its authority, by adding so many years to copyright protection as to make it essentially without limit. To get a measure of how far Congress has gone, consider that the first copyright statute in 1790, gave creators a total of 28 years of protection.
But so far the case of Eldred Eric vs. Ashcroft has been unsuccessful. In February, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that CTEA was constitutional even as applied to material that had been initially copyrighted under the old rules. Then, last month, the court refused to sit en banc, as an entire court, to review that judgment. The plaintiffs say they plan to ask the U.S. Supreme Court to hear an appeal. It's a case the high court should take.
Ultimately the question comes down to how long must the law give artists and authors control over their work in order to motivate their creative endeavors? Is a lifetime long enough or do there have to be additional incentives? The founders made clear that copyright protection was not to be in perpetuity, but they didn't say where the line should be drawn. As a result, Congress, which typically hears from well-healed estates and heirs who want their goose to keep laying its golden eggs, just keeps upping the limit. And the nation's choir directors get to choose from an ever-shrinking repertoire.
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