The
Copyright Term Extension Act (CTEA) of 1998 extended
copyrightUnited States copyright law governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
terms in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
by 20 years. Since the
Copyright Act of 1976The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
,
copyrightCopyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain...
would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978 was increased by 20 years to a total of 95 years from their publication date.
This law, also known as the
Sonny Bono Copyright Term Extension Act,
Sonny Bono Act, or
pejorativePejoratives are terms which have a negative connotation. Sometimes a term may begin as a pejorative word and eventually be adopted in a non-pejorative sense...
ly as the
Mickey Mouse Protection Act, effectively "froze" the advancement date of the
public domainThe public domain is a range of abstract materials—commonly referred to as intellectual property—which are not owned or controlled by anyone. The term indicates that these materials are therefore "public property", and available for anyone to use for any purpose...
in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again. Unlike copyright extension legislation in the
European UnionThe European Union is an economic and political union of 27 Member States, located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht on 1 November 1993 upon the foundations of the pre-existing European Economic Community...
, the Sonny Bono Act did not revive copyrights that had already expired. The Act did extend the terms of protection set for works that were already copyrighted, and is retroactive in that sense. However, works created before January 1, 1978 but not published or registered for copyright until recently are addressed in a special section and may remain protected until 2047. The Act became on October 27, 1998.
Background
Under the
Berne Convention for the Protection of Literary and Artistic WorksThe Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- History :...
, the signatory states are required to provide copyright protection for a minimum term of the life of the author plus fifty years, but they are permitted to provide for a longer term of protection. Following the 1993 Directive on harmonising the term of copyright protection, member states of the
European UnionThe European Union is an economic and political union of 27 Member States, located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht on 1 November 1993 upon the foundations of the pre-existing European Economic Community...
implemented protection for a term of the author's life plus seventy years. The
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
did not become a Berne signatory until 1988, but had previously provided for the minimum copyright term the convention required in the
Copyright Act of 1976The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
.
Prior to the 1976 copyright act, many copyrighted
literary worksLiterature is the art of written works. Literally translated, the word means "acquaintance with letters" , and therefore the academic study of literature is known as Letters...
,
moviesFilm encompasses individual motion pictures, the field of film as an art form, and the motion picture industry. Films are produced by recording images from the world with cameras, or by creating images using animation techniques or visual effects....
and fictional characters were soon to pass into the public domain due to their 56 year maximum copyright terms. Some of these copyrighted items remained quite profitable for their copyright owners, including several characters owned by the Walt Disney Company. With the passage of the 1976 copyright act, early
animatedAnimation is the rapid display of a sequence of images of 2-D or 3-D artwork or model positions in order to create an illusion of movement. It is an optical illusion of motion due to the phenomenon of persistence of vision, and can be created and demonstrated in a number of ways...
short films featuring
Mickey MouseMickey Mouse is a comic animal cartoon character who has become an icon for The Walt Disney Company. Mickey Mouse was created in 1928 by Walt Disney and Ub Iwerks and voiced by Walt Disney. The Walt Disney Company celebrates his birth as November 18, 1928 upon the release of Steamboat Willie...
such as
Steamboat WillieSteamboat Willie is an animated cartoon released on November 18, 1928. It was the Third Mickey Mouse cartoon, behind Plane Crazy and The Gallopin' Gaucho . It was the first Disney cartoon to feature synchronized sound...
and
Plane CrazyPlane Crazy is an animated cartoon, and is the first Mickey Mouse cartoon to be released. A soundtrack by Carl W. Stalling was added to the cartoon on December 29, 1928....
would not enter the public domain until 2000 at the earliest due to their new 75 year copyright terms.
Mickey MouseMickey Mouse is a comic animal cartoon character who has become an icon for The Walt Disney Company. Mickey Mouse was created in 1928 by Walt Disney and Ub Iwerks and voiced by Walt Disney. The Walt Disney Company celebrates his birth as November 18, 1928 upon the release of Steamboat Willie...
and other characters also have protection as
trademarkA trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from...
s. In several countries (e.g. in
RussiaRussia , officially known as both Russia and the Russian Federation , is a country in northern Eurasia . It is a semi-presidential republic, comprising 83 federal subjects...
, where the Berne convention was not applied retroactively)
Mickey MouseMickey Mouse is a comic animal cartoon character who has become an icon for The Walt Disney Company. Mickey Mouse was created in 1928 by Walt Disney and Ub Iwerks and voiced by Walt Disney. The Walt Disney Company celebrates his birth as November 18, 1928 upon the release of Steamboat Willie...
and all other copyrighted works created before 1970 are now regarded as being in the public domain.
After the United States' accession to the Berne convention, a number of copyright owners successfully
lobbiedLobbying is the practice of influencing decisions made by government . It includes all attempts to influence legislators and officials, whether by other legislators, constituents, or organized groups. A lobbyist is a person who tries to influence legislation on behalf of a special interest or a...
the U.S. Congress for another extension of the term of copyright, to provide for the same term of protection that exists in
EuropeEurope is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally divided from Asia to its east by the water divide of the Ural Mountains, the Ural River, the Caspian Sea, the Caucasus Mountains , and the Black Sea to the southeast...
. The act was named after the late Congressman
Sonny BonoSalvatore Phillip "Sonny" Bono was an American record producer, singer, actor, and politician whose career spanned over three decades.-Personal life:...
, who died nine months before the act became law. Bono, who, as a songwriter and filmmaker had his own interests in advancing copyright terms, had favored increasing them even before his entry into politics as the mayor of Palm Springs, California.
Both houses of the United States Congress passed the act as Public Law 105-298 with a
voice voteA voice vote is a voting method used by deliberative assemblies in which a vote is taken on a topic or motion by responding verbally....
,
making it impossible to determine who voted for or against. President
Bill ClintonWilliam Jefferson "Bill" Clinton was the 42nd President of the United States from 1993 to 2001. He was the third-youngest president; only Theodore Roosevelt and John F. Kennedy were younger when entering office...
signed the Sonny Bono Copyright Term Extension Act of 1998 on October 27, 1998.
Senate Report 104-315
The Senate Report gave the official reasons for passing copyright extension laws and was originally written in the context of the Copyright Term Extension Act of 1995, .
The authors of the report believed that extending copyright protection would help the United States by providing more protection for their works in foreign countries and by giving more incentive to digitize and preserve works since there was an exclusive right in them. The report also included minority opinions by
Herb KohlHerbert H. "Herb" Kohl is an American politician, business leader and philanthropist. A Democrat, he currently serves as the senior U.S. Senator from Wisconsin and is the owner of the Milwaukee Bucks National Basketball Association team...
and
Hank BrownGeorge Hanks "Hank" Brown is a former Republican politician and Senator from Colorado who served as president of the University of Colorado system from April 2005 - January 2008.-Education:...
, who believed that the term extensions were a financial windfall to current owners of copyrighted material at the expense of the public's use of the material.
Support
In addition to Disney (whose extensive lobbying efforts inspired the nickname "The Mickey Mouse Protection Act"), California congresswoman
Mary BonoMary Bono Mack is an American politician, and since 1998 has been a Republican member of the United States House of Representatives, representing...
(
Sonny BonoSalvatore Phillip "Sonny" Bono was an American record producer, singer, actor, and politician whose career spanned over three decades.-Personal life:...
's widow and Congressional successor) and the estate of composer
George GershwinGeorge Gershwin was an American composer and pianist. Gershwin's compositions spanned both popular and classical genres, and his most popular melodies are universally familiar....
supported the act. Mary Bono, speaking on the floor of the
United States House of RepresentativesThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
, said:
Proponents of the Bono Act argue that it is necessary given that the
life expectancyLife expectancy is the expected number of years of life remaining at a given age. It is denoted by e
x, which means the average number of subsequent years of life for someone now aged x, according to a particular mortality experience...
of humans has risen dramatically since Congress passed the original
Copyright Act of 1790The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...
, 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 a longer copyright that would never be created under the existing copyright. They also claim that copyrighted works are an important source of income to the US and that media such as
VHSVideo Home System, better known by its abbreviation VHS, was a video tape recording standard developed during the 1970s. It was released to the public during the latter half of the decade. During the late part of the 1970s and the early 1980s it formed one-half of the VHS vs Betamax war, which it...
,
DVDDVD, also known as Digital Versatile Disc or Digital Video Disc,is an optical disc storage media format, and was founded in 1995. Its main uses are video and data storage...
,
CableCable television is a system of providing television to consumers via radio frequency signals transmitted to televisions through fixed optical fibers or coaxial cables as opposed to the over-the-air method used in traditional television broadcasting in which a television antenna is required...
and
SatelliteIn the context of spaceflight, a satellite is an object which has been placed into orbit by human endeavor. Such objects are sometimes called artificial satellites to distinguish them from natural satellites such as the Moon....
have increased the value and commercial life of movies and television series.
Proponents contend 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 the sole restriction that copyrights must only last for "limited times." However, in what respect the granted time must be limited has never been determined, thus arguably even an absurdly long, yet finite, duration would still be a valid
limited time according to the letter of the Constitution as long as Congress was ostensibly setting this limit to promote the progress of science and useful arts. This was one of the arguments that prevailed in the
Eldred v. AshcroftEldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
case, when the Supreme Court upheld the constitutionality of the CTEA. It is also pointed out by proponents that the extension did not prevent all works from going in the public domain. They note that the 1976 Copyright Act establishment that unpublished works created before 1978 will enter the public domain by 2003 remained unaffected by the 1998 extension. They also claim that Congress has actually increased the scope of the public domain since, for the first time, unpublished works will enter the public domain.
Proponents believe that copyright encourages progress in the arts. With an extension of copyright, future artists have to create something original, rather than reuse old work. Proponents contend that it is more important to encourage all creators to make new works instead of just copyright holders.
Proponents claim that copyright better preserves intellectual property like movies, music and television shows. One example given is the case of the classic film
It's a Wonderful LifeIt's a Wonderful Life is an American drama film produced and directed by Frank Capra and loosely based on the short story "The Greatest Gift" written by Philip Van Doren Stern....
. Before
Republic PicturesRepublic Pictures was an independent film production-distribution corporation with studio facilities, operating from 1934 through 1959 and best known for its specialization in quality westerns, movie serials and B films emphasizing mystery and action.They were also responsible for financing one...
and Spelling Entertainment (who owned the motion picture rights to the short story and the music even after the film itself became public domain) began to assert their rights to the film, various local TV stations and cable networks broadcast the film endlessly. As New York Times reporter Bill Carter put it: "the film's currency was being devalued." Many different versions of the film were made and most if not all were in horrible condition. After underlying rights to the film were enforced, it was given a high quality restoration that was hailed by critics. In addition, proponents note that once a work falls into the public domain there is no guarantee that the work will be more widely available or cheaper. Suggesting that quality copies of public domain works are not widely available, they argue that one reason for a lack of availability may be because publishers' reluctance to publish a work that is in the public domain for fear that they will not be able to recoup their investment or earn enough profit.
Proponents reject the idea that only works in the public domain can provide artistic inspiration. They note that opponents fail to take in account that copyright applies only to expressions of ideas and not the ideas themselves. Thus artists are free to get ideas from copyrighted works as long as they don't
infringeCopyright infringement is the unauthorized use of material that is covered by copyright law, in a manner that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.For electronic and audio-visual media,...
. Borrowing ideas and such are common in film, TV and music even with copyrighted works (see
Scènes à faireScène à faire is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S...
,
Idea-expression divideThe idea-expression divide or idea-expression dichotomy is a concept which explains the appropriate function of copyright laws, which are generally designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. The case of Baker v. Selden was the first...
and
stock characterA stock character is a stereotype. Stock characters rely heavily on cultural types or names for their personality, manner of speech, and other characteristics. In their most general form, stock characters are related to literary archetypes, but they are often more narrowly defined...
) . Works such as
parodyA parody , in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
benefit from
fair useFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
.
Proponents also question the idea that extended copyright is "corporate welfare." They state that many opponents also have a stake in the case, claiming that those arguing against copyright term extension are mostly businesses that depend on distributing films and videos that have lost their copyright.
Opposition
Opponents of the
Bono Act consider the legislation to be
corporate welfareCorporate welfare is a pejorative term describing a government's bestowal of money grants, tax breaks, or other special favorable treatment on corporations or selected corporations. The term compares corporate subsidies and welfare payments to the poor, and implies that corporations are much less...
and have tried (but failed) to have it declared unconstitutional, claiming that such an act is not "necessary and proper" to accomplishing the Constitution's stated purpose of "promot[ing] the progress of science and useful arts". They argue that most works bring most of the profits during the first few years and are pushed off the market by the publishers thereafter. Thus there is little economic incentive in extending the terms of copyrights except for the few owners of franchises that are wildly successful, such as Disney. They also point out that the Tenth Amendment can be construed as placing limits on the powers that Congress can gain from a treaty. More directly, they see two successive terms of approximately 20 years each (the
Copyright Act of 1976The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
and the Bono Act) as the beginning of a "slippery slope" toward a perpetual copyright term that nullifies the intended effect and 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, making the comparison between the growth of copyright terms and the term of patents in relation to the growth of life expectancies. Life expectancies have risen from about 35 years in 1800 to 77.6 years in 2002. Considering the increase in life expectancies during that period of time was a bit more than double but the copyright terms have increased threefold from only 28 years total (under the 1790 act) presents an apparent discrepancy. While copyright terms have increased significantly since the 1790 act, terms of
patentA patent is a set of exclusive rights granted by a state to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention....
s have not been extended in parallel; patents adequately reward investment in the field with their mere 20-year term.
Another argument against the Bono Act is an "offshore production" argument: that, for example, derivative works could be created outside the United States in areas where copyright would have expired, such works advancing science or the useful arts, and that US law would prohibit these works to US residents. For example, a movie of Mickey Mouse playing with a computer could be legally created in Russia and children worldwide could possibly benefit from watching it, but the movie would be refused admission for importation by US Customs because of copyright, resulting in a deprivation to American children. The first
Winnie-the-PoohWinnie-the-Pooh, commonly shortened to Pooh Bear and once referred to as Edward Bear, is a fictional bear created by A. A. Milne. The first collection of stories about the character was the book Winnie-the-Pooh , and this was followed by The House at Pooh Corner...
book (the rights now owned by Disney) was published in 1926 and would have been public domain in 2001.
Opponents point out to another aspect of extension of copyright terms: loss of productive value of private collections of copyrighted works. A person who collected copyrighted works that would soon "go out of copyright," intending to re-release them on copyright expiration, lost the use of his capital expenditures for an additional 20 years when the Bono Act passed. This is part of the underlying argument in
Eldred v. AshcroftEldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
. The Bono Act is thus perceived to add an instability to commerce and investment, areas, which have a better legal theoretical basis than intellectual property, whose theory is of quite recent development and is often criticized as being a corporate chimera. Conceivably, if one had made such an investment and then produced a derivative work (or perhaps even re-released the work
in ipse), he could counter a suit made by the copyright holder by declaring that Congress had unconstitutionally made,
ex post factoEx Post Facto may refer to:* "Ex Post Facto" , the eighth episode of Star Trek: Voyager* An ex post facto law, a law that retroactively changes the legal consequences of acts committed prior to the enactment of the law...
, a restriction on the previously unrestricted.
Opponents also question the proponents' "new works would not be created" argument by pointing out proponents' hidden presumption that the goal is to make the creation of new works possible, whereas the authors of the United States Constitution evidently thought that unnecessary and explicitly restricted the goal to merely "promot[ing] 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 and resources to find the owner of copyright in the original work and purchase a license, 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). Thus they argue that a rich, continually replenished, public domain is necessary for continued artistic creation.
Challenges
Publishers and librarians, among others, brought
Eldred v. AshcroftEldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
to obtain an injunction on enforcement of the act. Oral arguments were heard by the
U.S. Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
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
Public Domain Enhancement ActThe Public Domain Enhancement Act was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...
that would make the provisions of the Bono Act apply only to copyrights that had been registered with the
Library of CongressThe Library of Congress is the research library of the United States Congress and is the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and holds the largest number of books. The head...
.
See also
- Anti-copyright
Anti-copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is known as the author's rights for copies to be only made by the author or with his/her authorization in form of a license....
- Copyright
Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain...
- Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to remove restrictions on distributing copies and modified versions of a work for others and requiring that the same freedoms be preserved in modified versions....
- Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
- Ex post facto law
An ex post facto law or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law...
- Intellectual property
Intellectual property is a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law...
- List of countries' copyright length
- MPAA
- Public domain
The public domain is a range of abstract materials—commonly referred to as intellectual property—which are not owned or controlled by anyone. The term indicates that these materials are therefore "public property", and available for anyone to use for any purpose...
- Rent seeking
In economics, rent seeking occurs when an individual, organization or firm seeks to earn income by capturing economic rent through manipulation or exploitation of the economic environment, rather than by earning profits through economic transactions and the production of added wealth.-Description...
- RIAA
- Software copyright
Software copyright is the relatively recent extension of copyright law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with...
- United States copyright law
United States copyright law governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
Summary of copyright protection rules
Documentation from the United States government
Views of proponents
Views of opponents
- The Eric Eldred Act
- Sonny Bono Copyright Extension Act opposition by Damian Yerrick.
- New York Times editorial, 4/30/2001, Let the Stories Go
- Litman Decries Overbroad Copyright Protection and Mouse Trapped by Mike Godwin
Michael Wayne Godwin , is an American attorney and author. He was the first staff counsel of the Electronic Frontier Foundation, and the creator of the Internet adage Godwin's Law. Since July 2007 he has been general counsel for the Wikimedia Foundation.-Education:Godwin graduated from Lamar High...
- Discussion on Elvis Copyrights expiring in the UK
- Article in Findlaw's Writ by Chris Sprigman
- coverage of opposition by attorney Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications....
- DIGITAL COPYRIGHT by Jessica Litman
Jessica Litman is a widely known expert on copyright law and author of Digital Copyright , which traces the history of lobbying that led to the passage of the Digital Millennium Copyright Act....
- Opposing Copyright Extension
- Thomas Maucalay on Copyright Law
- "Melancholy Elephants", from the Baen Books
Baen Books is an American publishing company established in 1983 by long time science fiction publisher and editor Jim Baen. It is a science fiction and fantasy publishing house that emphasizes space opera, hard science fiction, military science fiction, and fantasy...
Free Library – a cautionary story by Spider RobinsonSpider Robinson is an American-born Canadian Hugo and Nebula award winning science fiction author.- Biography :Born in the Bronx, New York City, Robinson attended Catholic high school, spending his junior year in a seminary, followed by two years in a Catholic college, and five years at the State...
. He later backed away from that position (while noting the irony) in a column collected in his 2004 The Crazy Years
- http://www.boingboing.net/2006/02/21/copyright_office_hea.htmlQuotation from Marybeth Peters
Marybeth Peters has served as the 11th United States Register of Copyrights since August 7, 1994. Peters has held the positions of Policy Planning Adviser to the Register, Acting General Counsel of the Copyright Office and as chief of both the Examining Division and the Information and Reference...
]