The mouse that ate the public domain

[carey]

I haven't seen nearly as much commentary on the problems with the Sonny Bono
Copyright Term Extension Act, so it was rather nice to see something for a
change.  In it , Mr. Sprigman argues about the flaws with Congress asserting
too much power to make Disney feel better.  All I can hope for, is that the
confidence he holds in the Supremes (re: Eldred v. Ashcroft) will hold true.

(Who knows Rohit, this may be policy change that actually succeeds,
after-the-fact)


http://writ.news.findlaw.com/commentary/20020305_sprigman.html

THE MOUSE THAT ATE THE PUBLIC DOMAIN:
Disney, The Copyright Term Extension Act, And eldred V. Ashcroft
By CHRIS SPRIGMAN
----
Tuesday, Mar. 05, 2002

Unless you earn your living as an intellectual property lawyer, you probably
don't know that the Supreme Court has granted certiorari in Eldred v.
Ashcroft, a case that will test the limits of Congress's power to extend the
term of copyrights. But while copyright may not seem inherently compelling
to non-specialists, the issues at stake in Eldred are vitally important to
anyone who watches movies, listens to music, or reads books.

If that includes you, read on.

Mickey Mouse Goes to Washington

Back in 1998, representatives of the Walt Disney Company came to Washington
looking for help. Disney's copyright on Mickey Mouse, who made his screen
debut in the 1928 cartoon short "Steamboat Willie," was due to expire in
2003, and Disney's rights to Pluto, Goofy and Donald Duck were to expire a
few years later.

Rather than allow Mickey and friends to enter the public domain, Disney and
its friends - a group of Hollywood studios, music labels, and PACs
representing content owners - told Congress that they wanted an extension
bill passed.

Prompted perhaps by the Disney group's lavish donations of campaign cash -
more than $6.3 million in 1997-98, according to the nonprofit Center for
Responsive Politics - Congress passed and President Clinton signed the Sonny
Bono Copyright Term Extension Act.

The CTEA extended the term of protection by 20 years for works copyrighted
after January 1, 1923. Works copyrighted by individuals since 1978 got "life
plus 70" rather than the existing "life plus 50". Works made by or for
corporations (referred to as "works made for hire") got 95 years. Works
copyrighted before 1978 were shielded for 95 years, regardless of how they
were produced.

In all, tens of thousands of works that had been poised to enter the public
domain were maintained under private ownership until at least 2019.

So far so good - as far as Disney and its friends were concerned, at least.
In 1999, a group of plaintiffs led by Eric Eldred, whose Eldritch Press
offers free on-line access to public domain works, filed a challenge to the
statute. Eldred argues that the CTEA is unconstitutional on two grounds:
first, because the statute exceeds Congress's power under the Copyright
Clause; and, second, because the statute runs afoul of the First Amendment
by substantially burdening speech without advancing any important
governmental interest.

Eldred lost before the district court and the D.C. Circuit. However, there
is good reason to believe that he may yet prevail in the Supreme Court.

The CTEA Exceeds Congress's Copyright Clause Power

Most likely to succeed is Eldred's argument that the CTEA exceeds Congress's
power under the Constitution's Copyright Clause (Article I, Section 8),
which provides that

The Congress shall have 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 Copyright Clause does two things. First, it empowers Congress to
"promote the Progress of Science and useful Arts." Second, the text of the
Copyright Clause limits the means that Congress may adopt in exercising the
enumerated power. Congress is limited to granting rights to authors for
"limited Times" - there can be no perpetual ownership of intellectual
property.

Clear thinking about the scope of Congress' Copyright Clause power requires
careful separation of ends from means. The end - the enumerated power
itself - is the promotion of progress, a fact the Supreme Court recognized
in Graham v. John Deere Co., where it held that the "qualified authority"
that the Copyright Clause grants "is limited to the promotion of advances in
[science and] the 'useful arts'." In contrast, the copyright grant is not
itself the enumerated power; it is merely the instrument through which
progress may be realized.

Seen in this light, the CTEA cannot survive. Because already existing works
cannot be created anew, extension of subsisting copyrights does not "promote
progress." Congress is not empowered merely to provide copyright holders
with an additional boon - that is not "progress", but corporate welfare.

This is the point on which the D.C. Circuit's opinion in Eldred should
collapse. The lower court relied on prior circuit authority holding that the
"promote . . . Progress" language does not restrict Congress's power. But
that authority is palpably at odds with the Supreme Court's statement in
Graham that the promotion of progress is the Copyright Clause power.

The D.C. Circuit leaned also on a snippet in the CTEA's legislative history
asserting that extending subsisting copyrights would encourage preservation
of older works. But if Congress really wanted to encourage preservation, it
could simply have offered the quid of an extended copyright in exchange for
the quo of the copyright holder taking steps to preserve the copyrighted
work - for example, by digitizing it and depositing it in an electronic
archive (such as the non-profit Internet Archive. There is no such quid pro
quo in the CTEA; rather, the statute is a giveaway to content owners, a quid
pro nihilo.

What About Future Copyrights?

The argument set forth above deals only with the CTEA's grant of retroactive
extensions. Eldred advances another, somewhat more doubtful, Copyright
Clause argument that applies to future extensions. The argument is that
Congress's repeated extensions (the CTEA is but the latest of 11 acts that
have stretched the copyright term from 14 years to beyond 100 years) have
rendered meaningless the stricture that exclusive rights may be granted only
for "limited times."

Eldred also advances a First Amendment challenge: both subsisting and future
copyright extension, Eldred argues, substantially burden speech by
foreclosing use of expression that would otherwise be available in the
public domain, while advancing no important government interest. Lining the
pockets of generous campaign contributors is not, Eldred maintains, a
legitimate - let alone important - government interest.

But although the CTEA may be struck down, Disney and its fellow media giants
will inevitably be back in Congress pushing a substitute bill. Accordingly,
it is worthwhile to consider briefly why copyright extension is bad policy,
as well as bad law.

The CTEA vs. The Public Domain

When copyright expires, works are said to "fall into" the public domain,
where they are usable without charge or need of authorization.

The linguistic convention by which works "fall" when they enter the public
domain is revealing: immanent in the phrase is the notion that a work is
debased when no longer copyrighted. Perhaps it is this view that allows
statutes that shrink the public domain to gain widespread support.

But disparagement of the public domain is out of step with our
constitutional history, with the economics of information markets, and with
the real way in which art, literature, and music are produced in our
culture.

The Framers, Viewing Intellectual Property As Monopoly, Sought To Constrain
It

The Framers of our Constitution viewed inventions and expression not as
"property", but as public goods to which exclusive rights may be granted
purely as a means of incenting production. Thomas Jefferson expressed the
then-dominant view with characteristic felicity in an 1813 letter:

If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to
himself; but the moment it is divulged, it forces itself into the possession
of every one, and the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every other
possesses the whole of it. He who receives an idea from me, receives
instruction himself without lessening mine; as he who lights his taper at
mine, receives light without darkening me . . . .
Inventions then cannot, in nature, be a subject of property. Society may
give an exclusive right to the profits arising from them, as an
encouragement to men to pursue ideas which may produce utility, but this may
or may not be done, according to the will and convenience of the society,
without claim or complaint from anybody.

Correspondence between Jefferson and Madison regarding the drafting of the
Copyright Clause evidences the same concern: both men classify copyrights
and patents as "monopolies" sufferable only for limited periods, and only
for the purpose of incenting invention.

We Don't Know How Much Incentive Is Enough, And How Much Is Too Much

Many policymakers (and even some intellectual policy mavens) view IP rights
as a one-way street - they assume that the more IP rights we grant, and the
broader and more durable we make those rights, the more society will benefit
through increased production of books, music, movies, etc. The matter isn't
even remotely that simple.

First, the creation of exclusive rights involves a difficult trade-off
between creation and dissemination. To the extent that a piece of expression
enjoys a market value, its price is likely to be higher if it is subject to
copyright, as the copyright owner will be entitled to limit or eliminate
competition in the provision of that expression to others. At the margin
between life plus 50 and life plus 70 - which is the margin in which the
CTEA operates - the proponent of a longer term should be prepared to show
that the social value of the additional incentive outweighs the harm caused
by another two decades of supra-competitive pricing and consequent reduced
dissemination of valuable copyrighted work.

That is no mean task, not least because, as Professor (now Justice) Breyer
observed in The Uneasy Case for Copyright: A Study of Copyright in Books,
Photocopies, and Computer Programs, it is not clear that the promise of
exclusive rights is a necessary prod to artistic creation:

Authors in ancient times, as well as monks and scholars in the middle ages,
wrote and were paid for their writings without copyright protection. Taken
as a whole . . . the evidence now available suggests that, although we
should hesitate to abolish copyright protection, we should equally hesitate
to extend or strengthen it.

What was true in ancient Greece and Rome and in medieval Florence is equally
true today in Brooklyn's DUMBO - painters paint, and writers write, for
reasons other than the size of the royalty check. But even if you assume
that exclusive rights do make some difference, there was no attempt back in
1998 (nor has there been since) to justify the CTEA's 20-year extension. Of
course, $6.3 million in campaign contributions can make up for quite severe
deficiencies in the data.

Artists Depend On A Rich Public Domain

If we know little about the utility of longer copyright terms, there is
abundant evidence regarding the vital importance to the progress of our
culture of a robust stock of public domain works.

Most artists, if pressed, will admit that the true mother of invention in
the arts is not necessity, but theft. And this is true even for our greatest
artists. Shakespeare's Romeo and Juliet (1591) was taken from Arthur
Brooke's poem Romeus and Juliet (1562), and most of Shakespeare's historical
plays would have infringed Holingshead's Chronicles of England (1573). For
the third movement of the overture to Theodora, Handel drew on a harpsichord
piece by Gottlieb Muffat (1690-1770). Passages of both works are compared at
this very interesting web site.

Cultural giants borrow, and so do corporate giants. Ironically, many of
Disney's animated films are based on Nineteenth Century public domain works,
including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The
Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released
exactly one year after Kipling's copyrights expired).

Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary
to the romantic notion that true genius inheres in creating something
completely new, genius is often better described as opening up new meanings
on well-trodden themes. Leonard Bernstein's reworking in West Side Story of
Romeo and Juliet is a good example.

None of this is intended as an argument that art should be "freed" from
copyright. Our copyright regime is almost as old as our Constitution, and
the creation of exclusive rights for limited periods is as sensible an
approach now as it was at the Founding. What is needed is a more balanced
approach to assessing the costs and benefits of the expanding scope and
duration of IP rights, including copyright terms. Perhaps if campaign
finance reform succeeds in helping good arguments compete against ready
cash, copyright will right itself.


-BB