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Information Ethics Problem of the Month is a feature on the Carnegie Mellon University Libraries Web site. Librarians, computing professionals, faculty, and students will be invited to contribute short essays on questions of special interest to the university community. If you would like to comment on an essay, suggest a topic, or volunteer to write a guest column, please contact the feature editor, Jean Alexander, jeana@andrew.cmu.edu.

The Fate of the Public Domain: The U. S. Supreme Court Will Shortly Decide How Long Copyrights Can Extend
by
Barbara Brandon*
University of Miami Law Library

Update: On Wednesday, January 15, 2003, the Supreme Court upheld the Sonny Bono Copyright Extension Act. The majority opinion by Justice Ginsburg found that the extension "is a rational enactment; we are not at liberty to second guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." Justices Stevens and Breyer dissented, Stevens writing that the court was "failing to protect the public interest in free access to products of inventive and artistic genius." For texts of the ruling, see http://www.copyright.gov/pr/eldred.html.

In early October the Supreme Court of the United States will hear oral arguments in a critically important copyright case. Individuals, associations and corporations that work with public domain materials, are challenging the Sonny Bono Copyright Term Extension Act as unconstitutional. This 1998 law extended the terms of all existing copyrights by twenty years.

The outcome of this case, Eldred v. Ashcroft, will have enormous practical consequences both for those seeking to broaden the works available in the public domain, like CMU's Universal Library Project, and for corporate interests wishing to protect copyrights that were due to expire. If this law is ruled unconstitutional, The Great Gatsby and the earliest depictions of Mickey Mouse will no longer be protected. If the law is upheld, the scope of the public domain will shrink.

The case will interpret the Copyright Clause in the United States Constitution, Article 1, § 8. This provision grants Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors…the exclusive Right to their respective Writings." In return for this limited monopoly, the public gains the right to use the protected work once the copyright term has expired and the material becomes part of the public domain.

Over the last two centuries Congress has vastly expanded the scope of federal copyright law. The original law, the 1790 Copyright Act, gave American authors of "maps, charts, and books" copyright protection for a term of fourteen years with a renewal term of fourteen years if the author was still living.

But times have changed. Over the last forty years Congress has extended copyright terms eleven times, most recently in the Sonny Bono Copyright Term Extension Act. The Eldred plaintiffs are contesting the Act's retroactive extension of copyright terms for existing materials for an additional twenty years. This means that no new work will enter the public domain until 2019.

The proponents of this law think that intellectual property rights should have the same permanency as property rights in real estate. Congresswoman Mary Bono made this statement during congressional debate on this measure:

Actually, Sonny wanted the term of copyright protection to last forever.  I am informed by staff that such a change would violate the Constitution.  I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us.  As you know, there is also Jack Valenti's proposal for term to last forever less one day.  Perhaps the Committee may look at that next Congress.[1]

The law’s opponents argue that the Act is granting "perpetual copyright on the installment plan"[2] and that this will destroy the public domain. They point to the views of the Constitution’s Framers, who only wanted to create a limited monopoly right based on the English experience. The Framers’ goal was to promote the free exchange of ideas in a democratic republic. Critics of the law also point out that a strong and vibrant public domain is necessary to promote artistic creativity.

The plaintiffs have challenged the Act under two separate constitutional theories. First, they argue that extending copyright protection for existing works contravenes the concept of “limited times” in Article 1, Section 8 of the Constitution and does nothing to promote creativity. Second, they contend that the Sonny Bono Act restricts freedom of speech under the First Amendment.

The lower courts found that the clause did not impose any limitations on Congress’ power to extend copyright terms retroactively and they held that the First Amendment could not be used to challenge the constitutionality of a copyright law.[3] The federal government, which must defend the constitutionality of the Act, and large corporate copyright holders are reiterating the arguments that they successfully made below.

This case has stimulated a great deal of interest. The Supreme Court has received numerous briefs from both copyright holders and defenders of the public domain. Copies of newspaper articles and the Supreme Court briefs can be found online at: http://eldred.cc/. In addition, the Loyola of Los Angeles Law Review has an online symposium on the case entitled “Eldred v. Ashcroft: Intellectual Property, Congressional Power and the Constitution” at http://llr.lls.edu/. Duke Law School also has a Web site from its 2001 Conference on the Public Domain at http://www.law.duke.edu/pd/ that contains papers that are less legally oriented.

*Ms. Brandon was an Information Assistant in Hunt Library Reference in spring and summer 2002.