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Making Kids Richer via the Copyright Term Extension Act of 1996
Joseph A. Lavigne
Comment, University of Detroit Mercy Law Review
Winter 1996
II. The History and Tradition of Copyright
The Copyright Clause of the Constitution empowers Congress "[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." [FN33] Implicit in this power is the requirement that Congress balance the interests of authors and publishers-monopolistic protection-against the interests of the public-unrestricted access to these works. [FN34] "In any copyright controversy, the Copyright Clause must be examined to determine the philosophy and values that it embodies and their consequences for a given issue." [FN35] An examination of the history of copyright and of the Copyright Clause of the Constitution [FN36] reveals a clear theme: Copyright ultimately exists for the benefit of the public. (emphasis added)
Copyright is essentially a provision of monopolistic protection for authors [FN37] as an incentive for them to produce creative works [FN38] for the public good. The issue of "how long a copyright should last is as old as the oldest copyright statute and will doubtless continue as long as there is a copyright law." [FN39] The balance between rewarding authors and securing a benefit to the public is often a delicate one, and indeed it is at the heart of the debate over extending the term of copyright today.[FN40] In the United States, both the public and authors who produce creative works have a stake in the final product, but it is clear that "[t]he central focus of American copyright philosophy is the public benefit from the production and dissemination of these works, rather than the private rights of the author." [FN41] The public derives a benefit from the creativity of authors whose works serve to promote science and the arts, and thereby enhance the culture of the nation. The two goals work in harmony: It is the " 'primary purpose of the copyright law . . . to foster the creation and dissemination of intellectual works for the public welfare' [and t]he public benefits not only from an author's original work but also from his or her further creations." [FN42]
United States copyright law has its foundation in the English Statute of Anne, [FN43] which was the prevailing rule during the colonial period. That statute authorized a limited term of copyright [FN44] and provided only enough protection as would be necessary to stimulate authors to create works for the public benefit, which emerged as the ultimate goal. [FN45] Indeed, the caption of the Statute of Anne indicates its utilitarian purpose: "An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned." [FN46]
In the very nascent stages of the United States, there was not a national standard for the provision of copyright, as the Articles of Confederation were silent in this area. [FN47] Despite this shortcoming, a majority of the states individually adopted copyright legislation. [FN48] Although not agreeing with precision on a uniform term of copyright, the significance of the public benefit aspect of copyright was apparent. In fact, ten of the thirteen states "clearly regarded copyright as providing a benefit to the public." [FN49]
When the Constitution was being written, it was generally agreed upon that a central power vested in the federal government to provide for copyrights would be the most effective system. [FN50] Though the Copyright Clause was never formally debated at the Constitutional Convention, [FN51] it was understood that offering a measure of reward was necessary in order to secure a greater goal-the public benefit to be gained from providing such protection. "There was a general feeling that the copyright laws would encourage authors to write and would be one avenue of attaining this goal of cultural competitiveness." [FN52] Support for this idea was broad indeed. James Madison, a staunch opponent of monopolies, "stressed . . . that the public good would be satisfied even though the author would also be benefited" [FN53] and endorsed copyright based upon those principles. [FN54]
It is significant to note that the Copyright Clause is one of only a few portions of the entire Constitution to recite a purpose. This gives copyright a special place in the framework of the Constitution. Rather than merely granting a power to Congress, the Constitution itself defines the way in which that power is to be exercised. It begins "by providing the justification for such legislation as Congress may choose to adopt: 'To promote the Progress of Science and useful Arts.' The public purpose factor is thus the first to be considered in the hierarchy of values of copyright analysis." [FN55] Any reward to authors for providing this benefit is secondary. Indeed, "the clause assumes that the production of 'Writings' by 'Authors' will serve this purpose and thus benefit the public." [FN56]
As the philosophy and interpretation of the Copyright Clause developed in the legislature and the judiciary following the ratification of the Constitution, the prominence of the public benefit element of copyright became undeniable. [FN57] "While protection of the author was a matter of concern, it was clearly subordinated to the overriding interest of the public and the public domain." [FN58] (emphasis added)
In Wheaton v. Peters, [FN59] a case involving a challenge to a secondary work as violative of an alleged common law copyright, the Supreme Court made it clear that copyright is strictly a creature of statute and is neither a common law property right nor a natural right of the author. [FN60] " Wheaton's characterization of copyright protection as a monopoly in derogation of the rights of the public has become a basic analytic premise of subsequent copyright legislation and decisions." [FN61]
Since Wheaton, the Supreme Court has consistently reaffirmed the principle that "[t]he copyright law . . . makes reward to the owner a secondary consideration." [FN62] Authors are indispensable in providing the actual works which are sought for the public benefit, but it is that benefit itself which is the constitutional objective of copyright in the United States. [FN63] Twenty years ago, the Court had the opportunity to elaborate upon the concept of copyright and the balance between an author's reward and the public good. Justice Stewart, writing for the Court, stated:
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is . . . the general public good. [FN64]
For more than two hundred years copyright has been regarded as an avenue for authors and creators to contribute to a higher goal of enriching the public. Lord Mansfield, in 1785, stated what has today become axiomatic: [W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded. [FN65] Simply put, as reflected in the Constitution, "the ultimate purpose of copyright legislation is to foster the growth of learning and culture for the public welfare, and the grant of exclusive rights to authors for a limited time is a means to that end." [FN66]
"As in the formative debates over the nature of copyright, it is the fundamental philosophic perception of the nature of copyright and its underlying purpose that will ultimately determine" the resolution of copyright controversies. [FN67] It is with the explicit Constitutional purpose of promoting the public good in mind that the Copyright Term Extension Act must be evaluated.
III. The Copyright Term Extension Act Tramples Upon the Copyright Clause
The Copyright Term Extension Act of 1996 [FN68] lengthens the term of copyright protection for virtually every type of work which may be copyrighted in the United States. [FN69] It is clear that providing an additional term of protection, generally twenty years, to a copyright holder is beneficial to that individual. [FN70] It is the benefit to the public, a constitutionally required element of any copyright provision, that is lacking in this legislation. The Copyright Term Extension Act neither encourages the production of new works for the public good, nor does it provide any new benefit to the public where it extends the rewards available to present copyright holders.
A portion of the legislative history from the adoption of the Copyright Act of 1909 provides a relevant backdrop against which to evaluate the present legislation: "In enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public?" [FN71] The answer to the first question is that extending copyright in the manner proposed will not result in any increase in the production of creative works. The answer to the second is that the burden on the public will be compounded in a variety of ways.
The bill's most glaring flaw in this regard is that it provides an additional twenty years of protection for subsisting copyrights without any added benefit to the public. "[E]xtending the copyright term for subsisting works notwithstanding the constitutional objection that such protection is no longer necessary to the creation of the work [ ] may impede its dissemination." [FN72] By operation of reason, there will be no increase in the production of works which have already been created. Yet, under the Copyright Term Extension Act, virtually every copyrighted work now in existence in the United States will receive greater protection. In stark contrast, the public will suffer considerable harm in the form of a reduced public domain [FN73] and in having to shoulder the burden of the copyright monopoly for an additional two decades. [FN74]
"The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers." [FN75] This tax is tolerated only to the extent that the public will receive a reciprocal benefit through the production of creative works. [FN76] In light of the factors which must be considered in adopting copyright legislation, at least with respect to subsisting copyrights, this bill will not stimulate the producer since the work has already been produced. [FN77] The perpetuation of the copyright monopoly will not confer any benefit, but will instead work a hardship upon the public. When, as in this case, the public is being taxed on copyrights that already exist and cannot possibly contribute to an increase in the availability of works, the extension in copyright term is completely unjustified.
With regard to works that would be produced in the future, it is also unlikely that there will be any real incentive sufficient enough to compensate for the greater burden on the public that will certainly occur. Proponents argue that extending the term of copyright will give authors a broader window in which to exploit their works that will ultimately lead to an increase in the number of works produced. [FN78] The idea is that providing a greater return for one's efforts will stimulate him to create in the first place. [FN79] This argument has little support in theory or in fact. To be fair, however, it would not be erroneous to conclude that this bill is a prime example of creativity spawned by the motivation that one's heirs might benefit.
Under any term of copyright which provides protection to an author for a term greater than his lifetime, any additional benefit gained by extending the term will never be realized by the author and can have very little if any present value. To assert that since a copyright will endure for seventy years following one's funeral, instead of fifty years beyond their passing, that there will be a resultant appreciation in the number of creative works produced by authors is ridiculous. The fallacy of this position and the harm to the public was illustrated by Macaulay in 1841. He said:
Considered as a boon to [authors, long posthumous duration of the copyright monopoly] is a mere nullity; but, considered as an impost on the public, it is no nullity, but a very serious and pernicious reality. I will take an example. Dr. Johnson died fifty-six years ago. If the law [prolonged the copyright for sixty years after the author's death], somebody would now have the monopoly of Dr. Johnson's works. . . . Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago . . . he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the difference between a twenty years' term and a sixty years' term of posthumous copyright would have been nothing or next to nothing. [FN80]
If a person would not be moved to create under the present copyright regime, an additional twenty years' posthumous monopoly would not provide the incentive necessary to induce him to do so. Proponents of the extension only pay lip service to the public and have offered no proof, beyond self-serving rhetorical generalities desperately lacking in substance, that the incentive to create will be enhanced. [FN81] It simply "does not follow that a longer term automatically drives creative authors to work harder or longer to produce works that can be enjoyed by the public." [FN82]
Moreover, this position fails to take into account the effects upon the public from perpetuating the copyright monopoly by twenty years. These costs are both immediate and substantial. The public domain, our precious resource of past creative works, would be devastated. Works which would ordinarily enter the public domain fifty years after an author's death will now be unavailable for an additional twenty years. The result will be a smaller public domain, which is itself a cost, and indeed a diminished source of information for creators could prove to restrict future creativity as well.
Professor Dennis Karjala notes the importance of the public domain and the threat posed by the Copyright Term Extension Act:
None of the arguments for extension take into consideration the loss to both revenue and culture represented by the absence of new popular works that are not created because underlying works that would have served as a foundation remain under the control of a copyright owner. By definition, this loss can never be known, but that makes it no less real or substantial. [FN83]
He continues to say:
Artistic freedom to make creative derivative works based on public domain works is a significant public benefit, as shown by musical plays like Les Miserables, Jesus Christ Superstar, and West Side Story, as well as satires like Rosencrantz and Guildenstern are Dead and even literary classics like James Joyce's Ulysses. [FN84] With a smaller pool of works upon which to draw, "the effect of an extension may well be a net reduction in the creation of new works." [FN85]
Even if the public domain work which is drawn upon contributes only slightly to a new work, it is still beneficial. "The world goes ahead because each of us builds on the work of our predecessors. A dwarf standing on the shoulders of a giant can see farther than the giant himself." [FN86] Restricting the public domain, as the Act proposes, can scarcely be seen as promoting "the Progress of Science and useful Arts." [FN87] The force of this argument is especially strong when evaluating corporate works, or works made for hire. [FN88] Creative works produced by companies, such as characters, movies, et cetera, are done so for the purpose of realizing a relatively immediate gain. The provision of an additional twenty years of protection, beyond the seventy-five years already afforded such authors, will be inconsequential in spurring creativity, yet very harmful to the public. Professor Karjala insightfully describes these implications of term extension on present and future creativity, and the public in general:
No company will take the "extra" twenty years into consideration in making a present decision to invest in the creation of a new work. In fact, an ongoing successful company like Disney is more likely to be spurred to the creation of new works like The Lion King or The Little Mermaid because it realizes that some of its "old reliable" moneymakers, like Mickey Mouse, are about to enter the public domain.
It is therefore extremely unlikely that an additional 20 years of protection tacked onto the end of a copyright protection period that is already very long will act as an incentive to any current author to work harder or longer to create works he or she (or it) would not have produced in any event. What is certain, however, is that such an extension of the copyright term would seriously hinder the creative activities of future as well as current authors. [FN89]
Macaulay's observations of more than 150 years ago support this position and echo strongly in the present context:
[T]he evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. . . . [I]t is by no means the fact that a post- humous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. . . . [A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. [FN90]
"The copyright monopoly is sanctioned because it is limited; it encourages the production of intellectual works for ultimate public use and enjoyment." [FN91] Extending the term of copyright in the United States simply would not provide enough incentives for expanding the body of creative works such that the detriment to the public could be rationalized. "[T]he costs to the United States general public vastly exceed even the gains to those relatively few copyright owners who would benefit from the extension and [ ] the general public itself would receive no compensating benefits." [FN92] Professor Karjala summarizes the impact on the public domain that would be perpetrated by extending the term of copyright protection as proposed in the Copyright Term Extension Act:
In order to continue the royalty stream for those few copyright owners, the extension means that all works published after 1920 will remain outside the public domain for an extra 20 years. As a result, current authors who wish to make use of any work from this period, such as historians or biographers, will need to engage in complex negotiations to be able to do so. Faced with the complexities of tracking down and obtaining permission from all those who by now may have a partial interest in the copyright, a hapless historian will be tempted to pick a subject that poses fewer obstacles and annoyances. [FN93]
The Constitution dictates that copyright exists "to promote the Progress of Science and useful Arts." [FN94] The copyright extension legislation now pending before Congress miserably fails to satisfy that command. It does not provide any appreciable incentive to create, if indeed it offers any at all, and it would harm the public-the very same body that copyright is required to benefit. The Copyright Term Extension Act is repugnant to the fundamental concept of copyright as an accommodation of the individual for the promotion of the public good. Instead, it seeks to contort this principle to provide an economic benefit for a few individuals while passing the costs of that subsidy on to the public for decades. The Extension Act does not further the purpose of copyright, and it is counterproductive to the aims copyright seeks to achieve. For these reasons, the Copyright Term Extension Act must be rejected.
# # #
4. Subsidizing the Author, His Children and His Grandchildren Has No Foundation in United States Jurisprudence
The proponents of the legislation who claim that copyright was intended to support the author and two succeeding generations [FN186] are simply wrong. There is not, nor has there ever been, any such proposition in the United States. [FN187] Part II of this Comment thoroughly discussed the true purpose of copyright: to promote the progress of science and useful arts by securing a monetary reward sufficient, but no greater than necessary, to encourage authors to create works for the public good. [FN188] Part III described how the Copyright Term Extension Act fails to serve this Constitutionally mandated purpose. [FN189]
Those who support longer terms of copyright have overlooked an essential element of the current life plus fifty year term. Accepting as true the assertion that life expectancies have increased, so too will the life expectancies of authors. Since the fifty year period does not begin to run until the death of the author, longer life expectancies naturally bring about longer terms of copyright. [FN190] Therefore, whether or not Congress takes action, as lifespans increase so too will copyright terms.
It appears that the misconception about the author and two succeeding generations stems from one of the stated justifications supporting the adoption of the EC Directive. This two generations argument is merely one of twenty- seven "whereas" grounds for extending the term in Europe. [FN191]
The tradition in the United States has been to support the copyright monopoly only to the extent that it ultimately encourages production of works for the public good. [FN192] Ninety years ago the famous author Samuel Clemens (alias Mark Twain) expressed his displeasure with the suggestion that copyright be intended to benefit his grandchildren, stating that they could take care of themselves. [FN193] Any suggestion that copyright in the United States is intended to benefit succeeding generations is unfounded. One scholar has noted that rather than attempting to provide for successive generations, the United States originally moved to a "life plus" term to fulfill the conditions of its membership in the Berne Union. "Probably the most concrete reason for adopting a copyright term of the life of the author plus fifty years was that the Berne Convention requires a minimum term of copyright protection of the life of the author plus fifty years as a condition for membership in the Berne Union." [FN194]
Even if the two generations argument had a valid basis in United States jurisprudence, it is a poor justification for extending the term of copyright protection. First, the argument is "devoid of any relationship to a public benefit" [FN195] and thus would fail to support the Constitutional requirements and principles of copyright. [FN196] Second, "even if 'two generations of descendants' were a valid basis for extending the copyright term for works of individual authorship, it provides no justification whatsoever for extending the term for corporate authors," [FN197] which is a prominent element of the Copyright Term Extension Act. [FN198]
The two generations argument is little more than a tactic by the heirs of hard working authors, cloaked in the faulty guise of equity, to live off the efforts of their parents and grandparents. The heirs that seek an extension in copyright term, and thus a perpetuation of their gravy train, have done nothing to contribute to the progress of science and useful arts. Instead they seek to deprive the public of access to all presently copyrightable works for an additional twenty years, so that they will be able to relax and collect royalty checks in return for the sweat of their grandparents' brows. This is contrary to the social contract embodied in the balance between authors, via copyright, and the public, through the public domain.
Professor Karjala summarizes the ridiculousness of the proponents' position:
[W]hile one can understand the desire of authors to provide a substantial estate to their immediate offspring, one must question the economic efficiency of a system that, as a matter of policy, seeks to grant an easy flow of income to a group of people the majority of whom the actual author may never have known. The descendants themselves would probably be better off, and certainly the general public would be better off, if they were to engage in some productive activity. United States copyright policy is not and has never been designed as a welfare system. It is therefore not entirely flippant to say to these distant descendants of creative authors who died 50 years ago what many now say to current welfare recipients: "Get a job!" [FN199]
5. Please Sirs, We Want Some More
In the more than two hundred year history of the Republic, the term of copyright protection has been changed only four times, most recently in 1976. [FN200] Now those who benefitted the most from the 1976 extensions in the duration of copyright have come before Congress to request an additional twenty years of income. If Congress grants their wish, will these same folks return twenty years later to claim that the goals of copyright are not being fulfilled and that they and their children, the author's great-grandchildren, are the rightful beneficiaries of the author's labors? This possibility is not far-fetched; a mere nineteen years ago the duration of copyright was extended for nineteen years, and now the same people who were the beneficiaries of that extension want the term of protection to be lengthened once again.
The Copyright Term Extension Act should be recognized for what it really is-an attempt by those heirs of gifted and hard-working authors who are about to lose a generous income, which they did nothing to earn, to protect and perpetuate that subsidy at the expense of the public. As Professor Karjala explains, the authors themselves knew that their works would not continue to support their heirs indefinitely, and created the works with that understanding in mind:
It is not "unfair" that a work enter the public domain fifty years after the death of its author. Rather, that is an integral part of the social bargain on which our highly successful system has always been based. . . . . .The works about to enter the public domain, absent this legislation, were created in 1920. . . . Those authors produced and published their works with the understanding that the works would enter the public domain 56 years later. Yet, notwithstanding that bargain, the period was extended by 19 years in 1976 to 75 years . . . . Now, 19 years later, these same copyright owners have returned seeking yet another extension to continue the wealth transfer for another 20 years, without supplying any evidence, or even any arguments, that the public will benefit. [FN201]
The Copyright Term Extension Act is offensive to the Constitution and treads upon the very purpose embodied in the Copyright Clause. [FN202] Passing the Extension Act would send a signal that those in Washington would prefer to turn their back on the Constitution that they took an oath to protect, and the American public whom they claim to represent, in favor of pandering to the fraternity of rich kids who wish to continue to be taken care of by their long lost relatives. It would be a tragedy if Congress left the public out in the cold so that the grandchildren of a very few successful authors could remain by their warm fireplaces collecting royalties. If the proponents of copyright term extension would expend as much time and energy adding to the body of creative works in our nation as they have spent to perpetuate their economic dominance over a few old copyrighted works, what a grand state our culture would be in. But alas, that is not the case.
Congress has the chance to put the greed to an end and say that seventy-five years, or more, of royalties are enough. It should seize this opportunity to shield the American people from monopolistic predators and to protect the precious public domain of works. It can do so by rejecting the Copyright Term Extension Act.
# # #
V. Challenges to the Constitutionality of the Copyright Term Extension Act
A. To Promote the Progress of Science and Useful Arts
The ramifications of the Copyright Term Extension Act's [FN203] inability to do little if anything "to promote the Progress of Science and useful Arts" [FN204] go far beyond its mere undesirability. The impact is much more serious than an ordinary discussion of public policy. In fact, the Extension Act's failure to satisfy the command of the Copyright Clause [FN205] may be fatal. Any bill that does not promote the progress of science and useful arts may be Constitutionally invalid. "[T]he introductory phrase of the Copyright Clause does not require that each of the 'writings' protected by copyright in fact promote science or useful arts, but only that Congress shall be promoting these ends by its copyright legislation." [FN206] The present bill fails to meet even that threshold requirement.
Congress' powers " 'are subject to the limitation that it could not enact a provision which plainly did not and could not tend to promote the progress of science and arts."' [FN207] "Implicit in this rationale is the assumption that in the absence of such public benefit the grant of a copyright monopoly to individuals would be unjustified." [FN208] Those provisions of the Act that extend copyright protection for an additional twenty years [FN209] beyond the life plus fifty-year term currently authorized [FN210] do not encourage the production of any new creative works and do not promote the progress of science and useful arts. As previously discussed at length, any incentive which vests more than a half century after an author's death is no inducement to create in the present. [FN211] Even if any such incentive could be identified, it would be so minuscule as to fall far short of satisfying the requirements of the Copyright Clause. Each of these provisions would exceed Congressional authority to grant copyrights and would be unconstitutional.
The extension of copyright terms for works already in existence [FN212] presents a particular problem. An added protection for works which exist now cannot, by definition, effectuate the creation of those works. [FN213] Regardless of the merits of extending the term of copyright to works which have been created, this added protection does not satisfy the purpose element of the Copyright Clause and "the extension of the term of protection for a work presently in copyright may arguably exceed the powers of Congress under the Copyright Clause of the Constitution." [FN214]
Despite the lack of caselaw directly on this issue, there is evidence to support the conclusion that extending existing copyrights in the manner proposed is unconstitutional. The constitutional purpose of promoting "the Progress of Science and useful Arts," [FN215] is equally applicable to patents. With this in mind, it is instructive to see how the Supreme Court has applied this purpose statement in the area of patent law. In Graham v. John Deere Co. [FN216] the Court stated:
The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the . . . social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. [FN217]
The Extension Act at the very least stretches the restraints imposed by the purpose statement, and is particularly offensive as it applies to subsisting copyrights. It extends the copyright monopoly without regard to social implications and certainly does not provide an appropriate public benefit in return. The Supreme Court has held this to be a violation with respect to patents, which strongly suggests that a copyright act authorizing similar or even greater extensions-justified under the identical constitutional power-will fail as well. [FN218]
Moreover, the Court has stated that restricting the public domain is contrary to the stated purpose of the Copyright/Patent Clause. [FN219] The Court has also indicated that if Congress oversteps the purpose statement, it is a constitutional violation. [FN220] The extension legislation would restrict public access for both current and future works for an additional twenty years with no rational relationship to the purpose of the Copyright Clause. This would be beyond the constitutional power of Congress. A logical analysis of, and comparison to, patent law, supports the argument that the Extension Act violates the purpose statement of the Copyright Clause. This is true as to the provisions for copyright in works yet to be created as well as those currently in existence. The Act does not promote the progress of science and useful arts, and cannot be reconciled with the Constitution. Thus, the Copyright Term Extension Act is unconstitutional.
B. For Limited Times
It is quite possible that the term of copyright proposed in the Act would be unconstitutional as violating the "for limited Times" provision of the Copyright Clause. [FN221] Certainly this phrase prohibits Congress from granting either a perpetual copyright or one that is effectively perpetual, but where the boundary of "for limited Times" lies is a matter of speculation. [FN222] The lengths of protection provided in the Copyright Term Extension Act exceed "limited Times." [FN223]
The power to establish copyrights is clearly within the discretion of Congress, [FN224] and the courts have never directly addressed the limits of that power. The only guidance available to evaluate the "for limited Times" provision is the history of how Congress itself has interpreted that mandate. A retrospective of United States copyright law demonstrates that the terms of copyright have generally increased, [FN225] and although there has never been a judicial ruling on whether the terms that have been established are within Congress' constitutional power, it has been assumed that they are.
Perhaps the best judicial interpretation of the "limited Times" provision is the case of United Christian Scientists v. First Church of Christ. [FN226] In United Christian Scientists, Congress had enacted a private bill restoring copyright in the writings of the founder of the Christian Science Church, Mary Baker Eddy, and vesting the copyright in a faction of the church for a duration of approximately 150 years. [FN227] Although the case was resolved on Establishment Clause grounds, [FN228] the court stated in dictum that "the copyright granted . . . is exceptional in scope and duration. Even if not construed as a copyright in perpetuity, it purports to confer rights of unprecedented duration." [FN229] Beyond this case, judicial authority regarding the bounds of the "limited Times" provision is scarce. For works created prior to 1978, copyright protection endures for a fixed term of years. [FN230] If indeed the term prior to the 1976 revisions was constitutional, [FN231] the provisions in the Copyright Term Extension Act extending copyright in pre-1978 works for an additional twenty years [FN232] would likely be constitutional.
The problem arises under the extension provisions for works created after 1978. Those works already enjoy a period of protection which lasts for the life of the author and fifty years thereafter. [FN233] Life plus seventy years, as contemplated by the Extension Act, [FN234] is an extremely long period of time. Imagine a songwriter, who creates a work when she is thirty years of age. [FN235] If she attains her life expectancy of seventy-plus years, her copyright will endure for more than 110 years (the forty-plus years of her life after creation of the work, plus seventy years thereafter), and will not expire until well into the twenty-second century. This would certainly prevent the work from being accessible to the present generation, would effectively preclude its use by the succeeding generation and could possibly limit the uses by a third or fourth generation. [FN236] This copyright would last for much longer than a limited time.
The Extension Act runs afoul of "limited Times" in other aspects as well. For example, the provisions granting a term of copyright in anonymous works, pseudonymous works, and works made for hire would fix copyright duration for up to 120 years. [FN237] These terms would, like those of the songwriter, put access to the work far beyond the current and immediately succeeding generations. A strong argument may be made that such lengthy copyrights are unconstitutional. A reasonable interpretation of the phrase "for limited Times" would be that copyright should endure only for a period long enough to ensure production of creative works. [FN238] Copyrights which last for 110 years, 120 years, or even longer, restrict public access to these works for much longer than a period of time necessary to elicit the work's creation. A creator who wishes to draw on these works to produce new creations will only be able to avail himself of works which were created more than a century ago. [FN239] Instead of becoming public domain material within a generation of its creation, copyrights in works will subsist for very lengthy periods. This is simply not compatible with a rational understanding of "limited Times."
The United Christian Scientists court criticized a 150 year copyright as appearing to violate this provision. [FN240] The terms of the Extension Act do not guarantee copyright in perpetuity, but they do explicitly provide for durations of 120 years, and the life plus seventy-year terms could last much longer than that. The Extension Act, at a minimum, effectively limits access for three generations. If a 150 year copyright is "exceptional in scope and duration," [FN241] a copyright lasting for 120 years and possibly longer would seem to be exceptional as well. The copyrights are only "for limited Times" because they are scheduled to expire after a fixed number of years.
The length of these copyrights is far from "limited" as is meant in the Constitution. The same gentlemen that wrote the Constitution created the first copyright legislation in 1790. [FN242] They interpreted "for limited Times" as lasting for fourteen years originally, and absolutely no longer than twenty-eight years. [FN243] The 120 year provisions of the Extension Act, and possibly longer in some circumstances, are a far cry from the limitations once envisioned by the authors of the Constitution. [FN244] As discussed, no court has yet passed judgment on the meaning of "for limited Times." In light of the history of copyright, and the practical effects of the proposed legislation, one can make a strong argument that the Copyright Term Extension Act authorizes copyrights that are beyond the "limited Times" mandate of the Copyright Clause. If the Extension Act was so construed, it could be successfully challenged as unconstitutional.
To conclude that the Act must be rejected on both policy and Constitutional grounds is not to begrudge authors of their due reward. Creators are indeed deserving of equitable compensation for toiling to produce the works which enrich our culture. But the issue is much larger than whether or not a work should be protected for an additional twenty years. "[W]e must never forget, that it is a constitution we are expounding," [FN245] and the Constitution does not permit this type of monopoly without the provision of a sufficiently reciprocal public benefit. That benefit is utterly lacking in the Copyright Term Extension Act, and therefore it is inconsistent with the constitutional command that the progress of science and useful arts are to be promoted via copyright. "The constitution is to be considered . . . as a paramount law" [FN246] and thus the Copyright Term Extension Act, no matter how meritorious one may believe it to be, cannot be justified.
VI. Conclusion
The Copyright Term Extension Act represents a very unwise shift in policy, and it is perhaps unconstitutional as well. The Constitutional purpose of copyright is to promote the progress of science and useful arts by encouraging the production of creative works for the ultimate use, benefit, and enjoyment of the public; an economic reward to the author is simply a means to facilitate that goal. The Extension Act does nothing to promote the creation of new works, and extends the term for works which have already been created without a sufficiently reciprocal public benefit.
The arguments in favor of passage are either flawed or completely erroneous. The only concrete reason for the Extension Act is the perpetuation of royalties on copyrighted works that were created in the 1920s. Shifting American policy to conform with the European Union would abandon the centuries old tradition of copyright that has enabled the United States to achieve its premiere position in the world market for intellectual property. Moreover, the Extension Act would put the United States at a competitive disadvantage with respect to nations outside the European Community, as the legislation lacks protections, such as the rule of the shorter term, that would require reciprocity from foreign nations. Quite simply, the Extension Act "would provide a windfall to the heirs and assignees of authors long since deceased, at the expense of the general public, and impair the ability of living authors to build on the cultural legacy of the past." [FN247]
Prolonging the term of copyright in works that already have been created places these works outside of the public domain for an additional twenty years, which constitutes a significant cost in terms of public access and future creativity. In addition, it would extend the term of copyright protection for unprecedented durations. In these respects, the Extension Act contravenes both the purpose statement and the "for limited Times" provision of the Copyright Clause.
The Copyright Term Extension Act does not encourage the production of creative works, it fails to satisfy the purpose of copyright, it violates the "for limited Times" provision of the Copyright Clause, it would impose significant costs on the American public, it would burden present and future authors who would seek to rely on the public domain to create new and valuable works, and it could endanger the United States' position as the world leader in the field of intellectual property. The Constitution, common sense, policy considerations, and justice must surely outweigh the desire of a very few individuals to live off the work of their grandparents. The Copyright Term Extension Act should and must be rejected.
# # #
FNa. Electronic mail: <redwing@michbar.org>. I wish to acknowledge the help of the following people: Ms. Mary-Karen Neimeier whose unwavering support, patience and encouragement through difficult times made completion of this project possible; the Honorable Joe Knollenberg (R-MI) and Mr. Paul Poister, whose assistance helped provide valuable information for this Comment, especially following the July 1995 hearings on H.R. 989; Professor Dennis S. Karjala and Mrs. Linda Lyons for their suggestions and feedback on earlier drafts of this Comment; and Mr. Jonathan M. Sherman for his tireless efforts to help to bring it all together in time to make a difference. Copyright © 1996, Joseph A. Lavigne, all rights reserved.
FN33. U.S. Const. art. I, s 8, cl. 8.
FN34. See Stewart v. Abend, 495 U.S. 207 (1990). See also Sheldon Halpern et al., Copyright 2 (1992).
FN35. Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1171 (1983) (footnote omitted).
FN36. See id. ("The history of the Copyright Clause, and its subsequent interpretation, are the logical starting points for any analysis of the issues of statutory and common law authority to protect intellectual property.").
FN37. The term "author" is used throughout this Comment in its general sense, meaning "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (internal quotation marks and citation omitted). For a more detailed discussion of the constitutional meaning of "author," see Goldstein v. California, 412 U.S. 546, reh'g denied, 414 U.S. 883 (1973); Sherry Mfg. Co. v. Towel King of Fla., Inc., 753 F.2d 1565 (11th Cir. 1985); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc), cert. denied, 429 U.S. 857 (1976).
FN38. The term "works" as used throughout this Comment indicates any type of work that is capable of being copyrighted. The Copyright Act defines such works as "literary works; musical works including any accompanying words; dramatic works including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works." 17 U.S.C.A. s 102(a) (West 1996). Cf. 17 U.S.C. s 101 (1988).
FN39. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133 (1976), reprinted in 1976 U.S.C.C.A.N. 5659.
FN40. See discussion infra part III.
FN41. Abrams, supra note 35, at 1185-86. See also Stewart v. Abend, 495 U.S. 207 (1990); Howard B. Abrams, Copyright, Misappropriation and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 Sup. Ct. Rev. 809, 810 ("The interests of the public are paramount and the rights of the public and the public domain are accorded primacy over the secondary concerns of the authors.") (footnote omitted).
FN42. Hearings on H.R. 989, supra note 2, at 4 (statement of Marybeth Peters, Register of Copyrights) (quoting House Comm. on the Judiciary, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. 5-6 (Committee Print 1961) (Part 1)).
FN43. 8 Anne ch. 19 (1710).
FN44. Under the Statute of Anne, copyright in previously unpublished books was to last for a term of fourteen years with the possibility that the copyright could be renewed for an additional fourteen years. Copyright in books published prior to the adoption of the statute was to last for a single term of twenty-one years. 8 Anne ch. 19, ss 1, 11.
FN45. Abrams, supra note 35, at 1140-41 n.59 (concluding that the results of copyright under the Statute of Anne were clearly deemed to benefit the public and that this argument was to become the justification for copyright.). For an extensive and authoritative treatment of the Statute of Anne and its implications on the development of United States copyright law, see id. at 1138-42.
FN46. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1109 (1990) (quoting 8 Anne ch. 19 (1710)).
FN47. Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It With Unanimous Approval?, 36 Am. J. Legal Hist. 361, 361 (1992).
FN48. Under the Articles of Confederation, twelve of the original thirteen states enacted copyright statutes. Of these states, six adopted the duration from the Statute of Anne and the other six adopted single terms ranging from fourteen years to twenty one years. See Hearings on H.R. 989, supra note 2, at 5-6 (statement of Marybeth Peters, Register of Copyrights); Donner, supra note 47, at 362. Connecticut was the first state to adopt a copyright statute and in less than forty months New York became the twelfth to do so. Of the original thirteen states, only Delaware failed to enact copyright legislation. Abrams, supra note 35, at 1173 n.219.
FN49. Abrams, supra note 35, at 1174.
FN50. In advocating adoption of the federal constitution, James Madison only devoted one paragraph of his Federalist Papers to the Copyright Clause. He used that space to generally endorse the concept of granting Congress the power to provide for copyrights to secure benefits to the public: The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of the common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.The Federalist No. 43, at 186 (J. Madison) (C. Beard ed. 1959).
FN51. Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 19 Geo. L.J. 109, 114 (1929) ("there was no debate in the Constitutional Convention with reference to this provision, and...there was no minute in the Committee with reference to it."). See also Donner, supra note 47, at 361 ("There was no recorded debate in the Constitutional Convention on September 5, 1787 when the proposed copyright clause was presented, and the clause was approved unanimously.").
FN52. Donner, supra note 47, at 362.
FN53. Id. at 377.
FN54. Though not expounded upon at the Constitutional Convention, the reasons for Madison's support of copyright as a means to benefit the public were later disclosed:
Monopolies tho' in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases-the authors of Books, and of useful inventions, in both [of] which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given.
....Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight. Abrams, supra note 35, at 1176 n.227 (quoting Madison, Aspects of Monopoly One Hundred Years Ago, 128 Harper's Mag. 489, 490 (1914) (published posthumously)). Madison's wisdom is certainly relevant to the present controversy as well.
FN55. Abrams, supra note 35, at 1175 (emphasis added).
FN56. Id. (emphasis added).
FN57. This principle transcended government lines years later during the era of the Confederate States of America. On March 11, 1861, following secession, the Confederacy adopted a constitution that incorporated the power to establish copyrights similar to that of the Federal Constitution. Following established practice, the public benefit purpose of copyright was recognized as being so essential to the existence of copyright law, that the phrase "to promote the progress of science and useful arts" introduced the clause granting copyright power under the Constitution of the Confederate States of America. See Jefferson Davis, 1 The Rise and Fall of the Confederate Government 566 (James M. McPhersen ed., Da Capo Press Inc. 1990) (originally published in 1881).
FN58. Abrams, supra note 35, at 1126.
FN59. 33 U.S. (8 Pet.) 591 (1834).
FN60. Id. at 661 ("Congress...instead of sanctioning an existing right... created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.") (emphasis added). See also Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 188 (1909) ("Congress did not sanction an existing right; it created a new one."); Globe Newspaper Co. v. Walker, 210 U.S. 356, 362 (1908); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 346 (1908) ("copyright property under the Federal law is wholly statutory, and depends upon the right created under the acts of Congress ...."); American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291 (1907) ("In this country it is well settled that property in copyright is the creation of the Federal statute ...."); Holmes v. Hurst, 174 U.S. 82, 85-86 (1899); Thompson v. Hubbard, 131 U.S. 123, 151 (1889); Banks v. Manchester, 128 U.S. 244, 252 (1888); Halpern, supra note 34, at 6; Abrams, supra note 35, at
1126-27.
FN61. Abrams, supra note 35, at 1185.
FN62. United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) (emphasis added).
FN63. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."). See also Mazer v. Stein, 347 U.S. 201, 219 (1954); Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822 (1964).
FN64. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (footnotes omitted) (emphasis added).
FN65. Cary v. Longman, 102 Eng. Rep. 138, 140 n.b (1801) (quoting Sayre v. Moore (1785)).
FN66. House Comm. on the Judiciary, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. 5 (Committee Print 1961) (Part 1).
FN67. Abrams, supra note 35, at 1186-87.
FN68. H.R. 989, 104th Cong., 1st Sess. (1995).
FN69. See supra notes 6-32 and accompanying text.
FN70. Of course corporations or other legal entities may hold copyrights, but here "individual" is used in general terms applicable to all copyright holders regardless of their legal status.
FN71. H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909).
FN72. Pierre N. Leval and Lewis Linman, Are Copyrights for Authors or Their Children?, 39 J. Copr. Soc'y 1, 15-16 (1991) [hereinafter Leval and Linman] (footnote omitted).
FN73. See infra notes 82-89 and accompanying text.
FN74. There is strong evidence that the term of protection under the 1909 Act was sufficient and that the present term of copyright is more than a sufficient incentive to induce the production of useful and artistic works:
Considering the number and quality of literary, cinematic, and pictorial works produced between 1909 and 1978, the 1909 Act's two-term system certainly seems to have provided sufficient incentive (including the possibility of fifty-six years of copyright protection) for the production of copyrightable works, while at the same time putting 85 percent or more of copyrighted works into the public domain after twenty-eight years. R. Anthony Reese, Note, Reflections on the Intellectual Commons: Two Perspectives on Copyright Duration and Reversion, 47 Stan. L. Rev. 707, 726 (1995) (footnotes omitted).
FN75. Zechariah Chafee, Jr., Reflections on the Law of Copyright: I, 45 Colum. L. Rev. 503, 507 (1945) [hereinafter Chafee I] (quoting T. Macaulay, Copyright, in 8 Works 201 (Trevelyan ed. 1879 (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)). Macaulay went on to conclude that "[t]he tax is an exceedingly bad one." Id.
FN76. See Abrams, supra note 35, at 1185 ("The monopoly is sanctioned because it encourages the production of intellectual works for ultimate public use and enjoyment.").
FN77. Hearings on H.R. 989, supra note 2, at 1 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("The proposed extension would supply no additional incentive to the creation of new works-and it obviously supplies no incentive to the creation of works already in existence.").
FN78. Id. at 6 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks). Granting a copyright term extension as propose[d] in H.R. 989 would provide copyright owners with an additional twenty years in which to exploit their works. The additional twenty years will enable copyright owners to increase the exposure of their works. This would result in greater financial rewards for the authors of the works, which will in turn, encourage these authors to create more new works for the public to enjoy. Id. (statement of Bruce A. Lehman, Secretary of Commerce and Commissioner of Patents and Trademarks).
FN79. See Bill Holland, Industry Groups Lobby for Copyright Extension: Congress May Take Up 'Life-Plus-75' Bill in January, Billboard, Oct. 9, 1993, at 6.
FN80. Zechariah Chafee, Jr., Reflections on the Law of Copyright: II, 45 Colum. L. Rev. 719, 719-20 (1945) [hereinafter Chafee II] (quoting T. Macaulay, Copyright, in 8 Works 199-201 (Trevelyan ed. 1879) (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)).
FN81. See, e.g., Hearings on H.R. 989, supra note 2, at 6 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks); Id. at 2 (statement of E. Randol Schoenberg, grandson of Austrian- American composer Arnold Schoenberg) ("The Copyright Term Extension Act of 1996 will be a further inspiration to those artists creating today, whose works are also not likely to receive their due during their lifetimes."). Mr. Schoenberg's remark, one that is widely accepted among proponents of extension, is particularly indicative of the ludicrous nature of this position. Schoenberg refers to authors not receiving their due, implying that the present term is insufficient to serve as an incentive to create. If the author perceives no benefit from creating a work, it is unlikely that extending that empty benefit for twenty years beyond the golden anniversary of the author's death will provide the remaining incentive that would be sufficient to entice him to put forth the effort to create, when he would have otherwise refrained under the status quo. He implies that authors will receive no present reward, which may not be the case: innumerable authors receive present, and often quite substantial, benefits from their work. He further overgeneralizes that artists do not get enough recognition during their lifetimes, again implying that a copyright monopoly for the author's life and fifty years thereafter is an insufficient incentive to create. Neither of these faulty premises can serve to justify extending the terms of copyright protection.
FN82. Id. at 8 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN83. Id. at 2-3 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN84. Id. at 6-7 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN85. Id. at 7 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law). See also Leval and Linman, supra note 72, at 14- 16.
FN86. Chafee I, supra note 75, at 511 (internal quotation marks omitted).
FN87. U.S. Const. art. I, s 8, cl. 8. See Hearings on H.R. 989, supra note 2, at 8 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("Authors of histories and biographies can also be inhibited from presenting independent analyses of earlier authors and their works by descendants who, for whatever personal reason, use copyright to prevent the publication of portions of protected works."). For an illustration of Professor Karjala's argument, see Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).
FN88. See Hearings on H.R. 989, supra note 2, at 9 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("The absence of any additional incentive for corporate authors from the extension of the copyright period to 95 years is also easily seen.").
FN89. Id.
FN90. Chafee II, supra note 80, at 719 (quoting Macaulay, Copyright, in 8 Works 199-201 (Trevelyan ed. 1879) (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)).
FN91. Halpern, supra note 34, at 6.
FN92. Hearings on H.R. 989, supra note 2, at 1-2 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN93. Id. at 10 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN94. U.S. Const. art. I, s 8, cl. 8.
FN186. See, e.g., supra note 110 and accompanying text.
FN187. The legislative history of the Copyright Act does make reference to ensuring "an author and his dependents the fair economic benefits from the works," and notes that "[l]ife expectancy has increased substantially." H.R. Rep. 1476, 96th Cong., 2d Sess. 133-34, reprinted in 1976 U.S.C.C.A.N. 5659. However, nowhere in the Copyright Act or in the legislative history is reference made to supporting an author and his two succeeding generations. Id. See also Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("protection for two generations of descendants...has never been recognized as a goal of United States copyright law.") (emphasis added).
FN188. See discussion supra part II. This fundamental principle of the Copyright Clause endures, notwithstanding the novel and fallacious interpretation given to it by Senator Diane Feinstein of California, a cosponsor of the Copyright Term Extension Act:
The fundamental animating principle of copyright protection was-and remains-assuring that the Nation's most creative individuals have and retain a sufficient economic incentive to continue to craft, work by copyrightable work, the incomparable mosaic of our Nation's cultural life. For many years now, such incentive has been considered to be the right to profit from licensing one's work during one's lifetime and to take pride and comfort in knowing that one's children-and perhaps their children-might also benefit from one's posthumous popularity. Indeed, it was to preserve that incentive that Congress adopted the current life plus 50 years term that is now the law. Human longevity, however, is increasingly undermining this fundamental precept of copyright law...and with it the economic incentive deemed essential by the authors of the Constitution. 141 Cong. Rec. S3393 (daily ed. Mar. 2, 1995) (statement of Senator Diane Feinstein of California).
FN189. See discussion supra part III.
FN190. See Hearings on H.R. 989, supra note 2, at 38 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School) ("a prolongation of the author's own life automatically tends to offset the need for longer protection after death.").
FN191. EC Directive, supra note 99, pmbl. s 5 ("Whereas the minimum term of protection laid down by the Berne Convention, namely the life of the author and 50 years after his death, was intended to provide protection for the author and the first two generations of his descendants; whereas the average lifespan in the Community has grown longer, to the point where this term is no longer sufficient to cover two generations;") (emphasis added). The emphasized portion of the quotation further indicates that the "two generations" argument is unique to Europe, and was not meant as a general statement regarding the purpose of copyright across the globe. Moreover, it supports the contention advanced in part IV.B.1.a, that the EC Directive was only intended to foster internal harmony among the member states of the EC. See supra note 121 and accompanying text.
FN192. In this regard, recall the statements of James Madison, an ardent opponent of monopolies, supporting the copyright power because it was a temporary limitation on public use. See supra notes 50, 53-54 and accompanying text.
FN193. Hearings on H.R. 989, supra note 2, at 27-28 (statement of Marybeth Peters, Register of Copyrights) (citing Proposal to Amend and Consolidate the Acts Respecting Copyright, 1906: Hearings on S. 6330 and H.R. 19853 Before the Joint Comm. on Patents, 59th Cong., 1st Sess. 116 (1906) (statement of Samuel L. Clemens, author)). Given that Clemens' wisdom is relevant to the present controversy, obviously reports of his death have been greatly exaggerated.
FN194. Halpern, supra note 34, at 6.
FN195. Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN196. Professor Karjala's statement is further proof that the Copyright Term Extension Act would not meet the rational basis test necessary to support its constitutionality. See also discussion infra part V.A.
FN197. Hearings on H.R. 989, supra note 2, at 13 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN198. H.R. 989, 104th Cong., 1st Sess. s 2(b)(3) (1995).
FN199. Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN200. 17 U.S.C. s 302 (1988). See infra note 225.
FN201. Hearings on H.R. 989, supra note 2, at i (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
FN202. U.S. Const. art. I, s 8, cl. 8.
FN203. H.R. 989, 104th Cong., 1st Sess. (1995).
FN204. U.S. Const. art. I, s 8, cl. 8.
FN205. Id.
FN206. 1 Nimmer on Copyright, supra note 136, s 1.03[B], at 1-44.31. See Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980) ("[A]lthough Congress could require that each copyrighted work be shown to promote the useful arts (as it has with patents), it need not do so.") (footnote omitted). See also 1 Nimmer on Copyright, supra note 136, s 1.03[B], at 1-44.31 n.18.
FN207. Leval and Linman, supra note 72, at 12 (quoting A. Weil, American Copyright Law 31 (1917)).
FN208. 1 Nimmer on Copyright, supra note 136, s 1.03[A], at 1-44.28.
FN209. H.R. 989, 104th Cong., 1st Sess. s 2(b)(1-2) (1995).
FN210. 17 U.S.C. s 302(a) (1988).
FN211. See supra notes 80-82, 90 and accompanying text.
FN212. H.R. 989, 104th Cong., 1st Sess. s 2(b)(3)-(d) (1995).
FN213. This analysis applies, by implication, to section 304 of the Copyright Act of 1976, which extended the term of copyright for works in existence at the time that Act took effect. See 17 U.S.C. s 304(a- b) (1988). Although a challenge to the Constitutionally of section 304 could be maintained on these grounds, the extension now contemplated by H.R. 989 exacerbates the problem and amplifies the need for judicial scrutiny.
FN214. 1 Nimmer on Copyright, supra note 136, s 1.05[A][1], at 1-44.35 to 1.44- 36. Professor Nimmer further concludes that "[s]uch an extension may also constitute a violation of the freedom of speech guarantee of the First Amendment." Id. The First Amendment analysis is beyond the scope of this Comment, but could constitute a very credible challenge to the Extension Act, and potentially even the present Copyright Act. To examine the foundations of this argument, see id. s 1.10[C], at 1-83 to 1-86.
FN215. U.S. Const. art. I, s 8, cl. 8.
FN216. 383 U.S. 1 (1966).
FN217. Id. at 5-6.
FN218. It is necessary to note that a number of lower federal courts have held that Congress may extend patent protection without exceeding its constitutional power. Each of these decisions were made prior to the Supreme Court's holding in Graham, and their continued viability is in serious doubt. See 1 Nimmer on Copyright, supra note 136, s 1.10[C][1], at 1-86 n.57.
FN219. See Graham, 383 U.S. at 5-6. See also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); Cuno Eng'g Corp. v. Automatic Devices Corp., 314 U.S. 84, 91 (1941).
FN220. Graham, 383 U.S. at 5-6.
FN221. U.S. Const. art. I, s 8, cl. 8.
FN222. See, e.g., Halpern, supra note 34, at 6.
FN223. How a court would decide this issue depends both upon the circumstances of the case (i.e. the type of work involved) and the nuances of the individual court. This Comment offers a general argument that the duration of copyright under the Copyright Term Extension Act is not "for limited Times," as required by the Constitution. This argument is made on Constitutional grounds only. The issue of whether the Act violates the "limited Times" provision of the Copyright Clause is completely separate from a discussion of the bill's merits.
FN224. U.S. Const. art. I, s 8, cl. 8. See Pennock & Sellers v. Dialogue, 27 U.S. (2 Pet.) 16-17 (1829). See also Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh'g denied, 465 U.S. 1112 (1984); Classic Film Museum, Inc. v. Warner Bros., Inc., 453 F. Supp. 852 (D. Me. 1978), aff'd, 597 F.2d 13 (1st Cir. 1979).
FN225. Without regard to copyrights subsisting at the time of each act's adoption, the following terms have been provided in the copyright acts of Congress. In 1790, a system was established under which a copyright endured for an original term of fourteen years with a possibility of a renewal term for an additional fourteen years. Act of May 31, 1790, ch. XV, s 1, 1 Stat. 124. When the 1790 Act was repealed in 1831, the period provided in the new act doubled to an original term of twenty-eight years, but the
renewal provision continued to provide for an additional term of fourteen years. Act of Feb. 3, 1831, ch. XVI, 4 Stat. 436, s 2.
In 1909, the twenty-eight year original term remained constant, but the renewal term was lengthened to match the original duration of twenty-eight years. 17 U.S.C. s 24 (1909 Act). In 1976, the current term of the life of the author and fifty years thereafter was established. 17 U.S.C. s 302(a) (1988). For an overview of the developments in the scope and subjects of copyright, in addition to the various durations of protection afforded, see Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties 7-13 (4th ed. 1993). See also Hearings on H.R. 989, supra note 2, at 26-28 (statement of Marybeth Peters, Register of Copyrights).
FN226. 829 F.2d 1152 (D.C. Cir. 1987).
FN227. Id. at 1169-70.
FN228. Id.
FN229. Id. at 1169 (footnote omitted).
FN230. See 17 U.S.C. s 304 (1988).
FN231. Professor Nimmer expresses serious reservations about the constitutionality of these provisions. 1 Nimmer on Copyright, supra note 136, s 1.10[C][1], at 1-85 to 1-86 ("[I]t must be concluded that a serious question exists as to the constitutional validity of the Section 304 extension ...."). The validity of term extensions prior to the 1976 Act was assumed without discussion in Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737 (2d Cir. 1975), cert. denied, 424 U.S. 955 (1976). Since section 304 is not at issue here, and since the validity of that section has not yet been successfully challenged, for purposes of this Comment, I will presume those provisions to be valid.
FN232. H.R. 989, 104th Cong., 1st Sess. s 2(d) (1995).
FN233. 17 U.S.C. s 302(a) (1988).
FN234. H.R. 989, 104th Cong., 1st Sess. s 2(b)(1) (1995).
FN235. This is a modest estimate, especially in the popular music field where many artists begin composing songs in their teens or early twenties. See, e.g., Hearings on H.R. 989, supra note 2, at 1 (statement of Bob Dylan, Songwriter) ("My first song was published...[when I] was twenty years old ....").
FN236. Michael Hart of Project Guttenberg has noted that "additional copyright protections keep works away from '99.9% of the people in the world. You're trying very hard to keep stuff away from people very effectively."' Haring, supra note 110, at 6D.
FN237. H.R. 989, 104th Cong., 1st Sess. s 2(b)(3)(B) (1995).
FN238. Indeed, this interpretation may be required by the Constitution. See supra notes 39-41, 55-66, and accompanying text.
FN239. Recall the dangers such a situation may cause. See supra notes 83-93, and accompanying text.
FN240. United Christian Scientists, 829 F.2d at 1169 ("[T]he copyright granted...is exceptional in scope and duration. Even if not construed as a copyright in perpetuity, it purports to confer rights of unprecedented duration.") (footnote omitted).
FN241. Id.
FN242. Act of May 31, 1790, 1 Stat. 124.
FN243. The first United States Copyright Act authorized an original term of fourteen years with a possibility of renewal for an additional fourteen years. Id., ch. XV, s 1.
FN244. Professor Howard Abrams indicates that "the first Congress conceived of copyright as a statutory incentive designed to promote social goals rather than as a natural or property right of an author." Howard B. Abrams, Copyright, Misappropriation, and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 Sup. Ct. Rev. 809, 816 n.38 (citing Patterson, Copyright in Historical Perspective 197-202 (1968)).
FN245. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
FN246. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
FN247. Hearings on H.R. 989, supra note 2, at 1 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).
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