| Plaintiffs |
| Legal Background |
| Legal Documents |
| Openlaw |
| CTEA |
| CTEA in the News |
| Copyright's Commons |
| Contacts |
| Home |
A
The Public Trust Doctrine holds that government may not transfer the public property of a commons into private hands in the absence of any public benefit. (See e.g. Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 453 (1892) (holding that "[t]he state can no more abdicate its trust over property in which the whole people are interested...so as to leave them entirely under the use and control of private parties...")) Although the PTD has traditionally been applied in the context of public lands, the principal that government may not improperly dispose of public assets for private benefit should apply to the reallocation of public rights in copyright. (See Eldred v. Reno Complaint.) The retroactive extension of the term of copyrights attempted by Section 102(d)(1)(B) of the CTEA transfers control of the intangibles recognized by such copyright from the public domain to the private holders of the copyright without providing a quid pro quo.
As Richard Epstein writes, "our legal system recognizes no natural, perpetual right to copyright." Richard A. Epstein, "Congress's Copyright Giveaway," The Wall Street Journal, December 21, 1998. The Constitution allows Congress to promote literary and scientific efforts by making deals with authors whereby they receive the exclusive use of their work for a limited period of time. In exchange for granting authors exclusive use of their work, the public gains the right to use the copyrighted material once the protected period expires. As Professor Epstein notes, "this copyright bargain, however, only makes sense going forward. The works covered [by the CTEA] were produced with the incentives available under then existing law." Id. At the time the authors created the copyrighted material, they contemplated the free use of their works by the public under the copyright terms prevailing at the time of the works' creation. Thus Congress violated the public's trust by taking from the public domain, without just compensation, intellectual property that the public and the authors had agreed, at the time the authors created the work, would fall into the public domain this year. Moreover, by removing works from the public domain Congress "works a huge uncompensated wealth transfer from ordinary citizens to Disney, Time Warner and other holders, corporate and individual, of preexisting copyrighted material." Id.
The retroactive extension of the term of copyrights attempted by Section 102(d)(1)(B) of the CTEA is abdication by the government of control of public resources held for the common use in violation of the Public Trust Doctrine.
For more information on the public's interest in material in the public domain, see:
-
Lawrence Lessig and Pamela Samuelson, "In Defiance of the Public Interest," The Washington Post, July 13, 1998, Op-Ed.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |