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In the United States, the Sonny Bono Copyright Term Extension Act of 1998 retroactively extended the duration of copyright from the life of author plus fifty years to the life of the author plus seventy years, in the case of individual works, and from seventy-five years to ninety-five years in the case of works of corporate authorship and works first published before January 1, 1978.
Under the Berne Convention for the Protection of Literary and Artistic Works states are required to provide copyright protection for a term of the life of the author plus fifty years. However, the convention permitted parties to provide for a longer term of protection, and between 1993 and 1996, the European Union provided protection for a term of the author's life plus seventy years (see Directive on harmonising the term of copyright protection). The United States, however, only provided for the minimum required by the convention.
As a result, many literary works, movies and fictional characters, which were quite profitable for the copyright owners, were threatened with soon passing into the public domain. This included several characters owned by the Walt Disney Company; without the act, Mickey Mouse would have entered the public domain between 2000 and 2004 when early short films such as Steamboat Willie and Plane Crazy were due to reach the end of the 75-year copyright term.
Copyright owners successfully lobbied Congress for an extension of copyright, to provide for the same term of protection as exists in Europe. Hence both houses of the United States Congress passed the act as Public Law 105-298 with a voice vote, making it impossible to determine who voted for the act and who voted against it, and passed it during both the Monica Lewinsky sex scandal and the Kosovo War, ensuring that the act would get little coverage from the mainstream media.
As a consequence of the act, no copyrighted works will enter into public domain due to term expiration in the United States until January 1, 2019, when all works created in 1923 will enter into public domain.
In addition to Disney, Sonny Bono's widow and Congressional successor Mary Bono and the estate of George Gershwin supported the act. Mary Bono, speaking on the floor of the U.S. House of Representatives, noted that "Sonny wanted the term of copyright protection to last forever", but that since she was "informed by staff that such a change would violate the Constitution", Congress might consider Jack Valenti's proposal of a copyright term of "forever less one day".
Proponents of the Bono Act argue that it is necessary given that life expectancy has risen dramatically since Congress passed the original Copyright Act of 1790, that a difference in copyright terms between the United States and Europe would negatively affect the international operations of the entertainment industry, and that some works would be created under perpetual copyright that would never be created under time-limited copyright. They also claim that Congress has the power to pass whatever copyright term it wants because the language "To promote the progress of science and useful arts" in the United States Constitution is not a substantive limitation on the powers of Congress, leaving only the restriction that copyrights may only be for a "limited time". Given this interpretation, a million years would still be a valid "limited time" under the letter of the Constitution.
Opponents of the Bono Act consider the legislation to be little more than corporate welfare and have tried (and failed) to challenge its constitutionality, claiming that such an act is not "necessary and proper" to achieve the purpose of "promot[ing] the progress of science and useful arts". They point out that the Tenth Amendment limits the powers that a treaty can grant to Congress. More directly, they see two successive extensions of approximately 20 years each (the Copyright Act of 1976 and the Bono Act) as the beginning of a "slippery slope" toward a perpetual copyright term that violates the spirit of the "for limited times" language of the United States Constitution, Article I, section 8, clause 8. They question the proponents' life expectancy argument, pointing out that the copyright term under the 1790 act lasted only twenty-eight years, that life expectancies have not risen threefold since 1790 (ignoring infant mortality, they have increased barely ten years), and that even though terms of patents have not been extended in parallel, patents adequately reward investment in the field with only a twenty-year term. They also question the proponents' "works would not be created" argument by pointing out proponents' hidden assumption that the goal is to create all works, whereas the authors of the United States Constitution considered the goal "to promote the progress of science and useful arts." In fact, some works created under time-limited copyright would not be created under perpetual copyright because the creator of a distantly derivative work does not have the money to purchase a license from the owner of copyright in the original work, or the individual or privately held owner of copyright in the original work might refuse to license a use at any price (though a refusal to license may trigger a fair use safety valve). One can thus argue that a rich public domain is necessary for artistic creation.
For example, the works of Shakespeare and the Greek myths have been the basis for much of Neil Gaiman's writing, which might well not have been created if they were still under copyright. Recent works that have entered the popular culture, and for which copyright is arguably not appropriate, include the novels that created Frankenstein and Dracula, both originating in the 19th century. Most of the holy writings of major religions are also in the public domain, which allows them to be adapted. If the Roman Catholic Church had a perpetual copyright on the letters of Paul of Tarsus, it could have refused to license them for translation or for use by other churches.
Publishers and librarians, among others, brought a case originally known as Eldred v. Reno (now Eldred v. Ashcroft) to obtain an injunction on enforcement of the act. Oral arguments were heard by the U.S. Supreme Court on October 9, 2002, and on January 15, 2003, the court held the CTEA constitutional by a 7-2 decision. The plaintiffs in the Eldred case have as of 2003 begun to shift their effort toward the U.S. Congress in support of a bill called the Eric Eldred Act that would make the provisions of the Bono Act apply only to copyrights that had been registered with the Library of Congress.
Other groups practice civil disobedience by violating the act in public. However, these challenges have so far met with little success.
The act was named after the late Sonny Bono, who had lobbied for extending the duration of copyrights. It was passed shortly after his death.
External References and Links
- Documentation from the United States Government:
- Views of Proponents:
- http://www.salon.com/tech/feature/2002/04/15/copyright_defense/index.html In defence of copyright (encourages loose constructionism, that is, giving Congress the benefit of the doubt with respect to constitutional law)
- (under construction; please edit this page)
- Views of Opponents:
- The Eric Eldred Act
- Litman Decries Overbroad Copyright Protection and Mouse Trapped by Mike Godwin
- Article in Findlaw's Writ by Chris Sprigman
- See also writings of: Lawrence Lessig and Jessica Litman