Wednesday, July 11, 2007

So Why Extend Copyright Terms Anyway?

I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.

Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.

The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.

The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.

The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.

Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.

Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.

Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.

A site all about copyright extension:
The Senate Report 104-315 CTEA (if you really want to read the whole thing…):

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