Copyright Protection and the case of Disney Stephen Sweeney 11/14/2006

Copyright Protection and the case of Disney Overview of Copyright Statute of Anne - 1710 Paris and Berne Conventions – 1883 & 1886 United States Copyright law – 1790, 1909, 1976 Sonny Bono Act of 1998 Copyright Protection and the case of Disney

United States Copyright Law United States Constitution, Article I, Section 8… “The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” Copyright Protection and the case of Disney

Copyright Term Extension Act of 1998 aka the Sonny Bono Act aka the Mickey Mouse Protection Act P.L. 105-298 Hearing – Professor Peter Jaszi -Mickey Mouse was due to come into the public domain in 2004 -A 20 year extension can only serve as a disincentive to new creativity in that it necessarily discourages derivative works. -“No rational actor will cease distribution of a popular work just because it ceases to be protected by copyright. Rather, this is an incentive to making derivative works, making the original ‘even better.’” -Given the unlikely nature of commercial benefit 70 years after the death of the author (only 2% retain commercial value), how motivating would it be to create/invent/discover something? How is this motivating? -Effects of CTEA on American-European legal relations: will do nothing to harmonize between U.S. law and the laws of developing countries, and may in fact cause a hardship economically, and require a constant “keeping-up” on the part of the developing countries. -The Professor believes that the CTEA suggests a violation of the “limited times” feature of Article I, Section 8. -At the same time, however, the professor does believe that copyright does need to have “limited times” attached to it, and that in some cases, it would be okay, but not outlined in 105-298 Copyright Protection and the case of Disney

Copyright Protection and the case of Disney Eldred v. Ashcroft (2003) Challenged by Eric Eldred and Eldritch Printing 537 U.S. 186 – Supreme Court ruling in 2003 Justice John Stevens and Justice Stephen Breyer dissenting Copyright Protection and the case of Disney

Copyright Protection and the case of Disney Eldred v. Ashcroft (2003) Justice John Stevens Copyright Clause is “both a grant of power and a limitation” and that Congress “may not overreach the restraints imposed by the stated constitutional purpose.” Any extension of copyright terms “…would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” -Science, as defined by Stevens and Breyer is knowledge and the pursuit thereof -Encouraging new inventions and advancing progress by adding knowledge to the public domain is seriously limited by restricting the use of it in a free market -in 1861, congress changed the patent law from two 14 year terms to one 17 year term with no extensions. This applied to all patents “hereafter granted.” Other legislation has included currently existing patents and copyright, including the Sonny Bono Act. -the history of retroactive extensions of existing and expired copyrights and patents is not conclusive of the constitutionality of the Sonny Bono Act -Justice Stevens suggests that the court shouldn’t even be considering the challenge to the “limited times” protection afforded in the Constitution, because cert was granted on the challenge of Congress’ ability to extend retroactively the terms of existing copyrights. -it’s not about how long, it’s if it’s okay for Congress to make this change -case of congressional overreaching Copyright Protection and the case of Disney

Copyright Protection and the case of Disney Eldred v. Ashcroft (2003) Justice Stephen Breyer The economic effect of this twenty year extension: Is not to grant the extended term to authors, but to their heirs, estates, corporate successors, or shareholders. The practical effect: Is not to promote, but to inhibit the progress of “science” -The statute lacks constitutionally necessary rational support if: 1-the significant benefits that it bestows are private, not public 2-if it threatens seriously to undermine the expressive values that the Copyright Clause embodies 3-if it cannot find justification in any significant clause-related objective Thus, Congress’ choice is clearly wrong. Promoting the progress of science: Not to provide a special private benefit, but to stimulate artistic creativity for the general public good The copyright term is limited so that its beneficiaries-the public-will not be permanently deprived of the fruits of an artists labors CRS report (I’m still finding this one) Only about 2% of all copyrights 55-75 years old retain commercial value The older the work, the less likely it retains commercial value, and the harder it will be to find the current copyright holder. The older the work the more likely it will prove useful to the historian, artist, or teacher. The older the work, the more likely the permission granter for use is not the copyright holder, but someone the original copyright holder never knew (great-grandchildren, shareholders, descendants) Copyright Protection and the case of Disney

Copyright Protection and the case of Disney Eldred v. Ashcroft (2003) Justice Stephen Breyer At what point does this extending of copyright become “into perpetuity?” Statute of Anne revisited Somehow, somewhere, some potential author might be moved by the thought of great-grandchildren receiving copyright royalties a century hence, so might some potential author also be moved by the thought of royalties being paid for two centuries, five centuries, 1,000 years, “til the End of Time.” From a rational economic perspective, at some point, this becomes “forever” The Statute of Anne re-secured authors rights to their work without being forced to turn the rights over to the publishers and the publishers monopoly. Does the CTEA create a monopoly for the authors at the sake of the public? According to Stevens and Breyer, this extension of copyright really deprives the public the benefits from the work and is unconstitutional, and bad public policy! Copyright Protection and the case of Disney

Chief Justice John Marshall: (in 1803) “It is emphatically the province and the duty of the judicial department to say what the law is.” -By the 7-2 ruling by the Supreme Court, the court has “quitclaimed to Congress its principal responsibility in this area of the law.” -According to Justice Stevens, basically this ruling suggests that Congress’ actions in regard to the Copyright Law are judicially unreviewable. This quote came from Marbury v. Madison in 1803.