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Copyright Term Extension is Constitutional

Publishers, film producers, artists, authors, musicians and their heirs, as well as corporate owners of copyrights are applauding the recent decision that the 1998 Copyright Term Extension Act (CTEA) is a valid law. It was argued by a coalition of archivists, scholars and Internet publishers that Congress had exceeded the Constitutional directive that copyright protection be for "limited times." Also, that the CTEA - a.k.a. the Sonny Bono Copyright Extension Act - violated the First Amendment right of free speech.

But in Eldred v. Ashcroft, the U.S. Supreme Court ruled on January 15, 2003 that the CTEA was not in violation of the U.S. Constitution. The CTEA adds 20 years to the duration of protection already afforded to copyrighted works. Creative works are now protected for the life of the author plus 70 years, or in the case of works, whose copyright is held by a corporate entity, protected for 95 years from the date of first publication.

At stake was the right to use works created in the Jazz Age, including the music of George Gershwin, the books of Ernest Hemingway and F. Scott Fitzgerald, and early Mickey Mouse cartoons - hence another popular CTEA nickname "The Mickey Mouse Act."

Without the extension, the copyrights on these works and many more would have expired, making them freely available to the public. With the extension, however, users must continue to obtain licenses and to pay licensing fees. Revenues affected by the Court's decision are estimated to be in the billions of dollars.

The case began when plaintiff Eric Eldred wanted to publish some Robert Frost poems on his Internet website archive. With the help of the Harvard Law School's Berkman Center and a Stanford law professor, Lawrence Lessig, a coalition was organized. It included a company that restores old films, a church choir director, and Dover Publications, the publisher of inexpensive editions of classic books that have entered the public domain.

The coalition filed a lawsuit in 1999 in the U.S. District Court in Washington, D.C. When that suit was unsuccessful, it was appealed, first to the D.C. Circuit Court and finally, by a petition for a writ of certiorari to the Supreme Court.

Proponents in support of the constitutionality of the extension included individual creators like Bob Dylan and Carlos Santana, heirs of authors such as Theodor Geisel (Dr. Seuss), performing rights organizations BMI, ASCAP and SESAC, and corporate owners of copyrights including AOL Time Warner and the Walt Disney Company.

They argued that the harmonization with international law accomplished by CTEA furthers the underlying purpose of copyright, i.e., promoting the progress of science and the useful arts, in that bringing the U.S. in line with the European Union (E.U.) and other countries around the world promotes fair trade and level competition. The purpose would also be served because CTEA encourages the restoration and preservation of previously created works.

Opponents argued that the act impeded free speech and stifled creativity. They looked to the Copyright Clause of the Constitution - which all agree sets forth the goal of providing an incentive to authors by allowing them exclusive rights in their works. They posited that because the CTEA applies to existing works as well as to future works, that there could be no incentive to create regarding works already created. They also asserted that Congress had improperly stretched the duration of copyright protection so as to be virtually perpetual.

The Supreme Court, by a vote of 7 to 2, rejected the opponents' arguments, deferring to Congress and upholding the CTEA. The decision, while not unexpected, was nonetheless felt as a blow to certain Internet archivists and librarians. As in the Napster case, which was decided by federal courts in California, the Supreme Court supported the rights of copyright owners over those of Internet users.

Justice Ruth Bader Ginsberg, writing for the majority, found that the Constitution "gives Congress wide leeway," that "Congress acted within its authority" and that the CTEA "is a rational enactment." The opinion examined the history of copyright law from 1790, noting that all prior extensions had also applied to pre-existing works and that this approach was not within the Court's "province to second-guess." Ginsberg also observed that the CTEA would provide an incentive to disseminate derivative works.

The Court also rejected the argument that the CTEA interfered with free speech under the First Amendment. Justice Ginsberg explained that the Copyright Act already contains provisions to ensure freedom of speech. Copyright protection does not extend to any idea, procedure, system, method of operation, concept, principle, or discovery, and the doctrine of fair use provides balance between copyright protection and free speech concerns.

CTEA opponents objected not only to the law itself, but also to the process and policy behind its enactment. Ginsberg seemed to give some credence to that argument by stating, "We are not at liberty to second-guess Congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be."

Two justices dissented: Stephen Breyer expressed concern about the economic impact of the CTEA, and John Paul Stevens worried that the Court was failing to protect the public interest in free access to creative works. Although other members of the Court remained unconvinced on these points, petitioning opponents were encouraged that they had been heard.

As a result of the Court's decision, copyright owners of pre-existing works will be entitled to continue receiving royalties and other licensing fees. Internet archivists will have the choice to pay or wait until the expiration of the extended term to use works without authorization. Authors and creators of new works, looking forward, will receive a longer term of protection, a term that is now in harmony with the rest of the developed world.

The Copyright Act recognizes that creators do not always have much bargaining power, particularly early in their careers. It provides certain termination rights so that authors and their families may have the opportunity to renegotiate certain licenses and transfers on more advantageous terms.

The Copyright Act of 1976 required that these rights be exercised within a specified window of time; if the rights were not exercised, they expired. The CTEA now allows authors and their heirs an additional opportunity to exercise certain termination rights that would have expired under the Copyright Act of 1976.

In light of the Court's decision, estate planners may wish to review certain decisions since the CTEA extends the term of copyrights thereby increasing their value as terminable interests. Also, authors and their heirs may want to exercise their rights to terminate certain transfers. Now is an appropriate time to review intellectual property portfolios including copyright registrations, renewals and licensing agreements since provisions from several separate copyright statutes may be involved - the Copyright Act of 1909, the Copyright Act of 1976, as well as the CTEA.

©2003 Janet Fries and Michael J. Remington
All rights reserved.

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