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Written Materials From Ken Carson's Recent MCLE Presentation



1. Background

a. The Constitution confers upon Congress the authority "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." (Article I, 8, emphasis added.)

b. Congress enacted the first copyright-protection law in 1790, with a 14-year term and an optional 14-year renewal period. The maximum term of a copyright was extended in 1831 to 42 years; in 1909 to 56 years; and then in a series of enactments between 1962 and 1976 to 75 years.

c. Effective January 1, 1978, the Copyright Act provided for new copyrights a term measured by the life of the author plus 50 years.

2. The Sonny Bono Copyright Term Extension Act of 1998

a. Signed into law October 27, 1998, the CTEA focuses on the date January 1, 1978 and:

i. Extends the term of existing copyrights to 95 years;

ii. Extends the term of new copyrights to the life of author plus 70 years;

iii. Requires that unpublished and unregistered works be published by 2002 to gain continuing protection;

iv. Provides that authors who grant rights to others may terminate the grant between the 35th and 40th year after it is made;

v. Provides that authors who granted rights before 1978 may terminate the grant between the 57th and 61st year of the term, and thus recapture the last 34-39 years of the new longer term;

vi. Provides a granting author whose termination rights had expired as of the date of the Act with a renewed right of termination between the 76th and 81st years of the term;

vii. Provides additional protection for libraries and archives (see below).

b. The new-works term provision harmonizes U.S. copyright law with European Union law, which has adopted a basic copyright term of the life of the author plus 70 years.

c. Leading proponents of the extension for existing copyrights included owners of valuable works threatened with emergence into the public domain, including Disney and Time Warner. Disney, for example, was due to lose certain copyright protection for Mickey Mouse in 2003, for Pluto in 2005, for Goofy in 2007, and for Donald Duck in 2009. (The trademarks for these characters, of course, and other later-obtained copyrights would have remained in effect.) Time Warner is the owner of copyrights in, for example, the works of George Gershwin, whose "Fascinating Rhythm" and "Oh, Lady Be Good!" were due to join the public domain in 1999. Disney's political action committee reportedly made substantial contributions to the campaigns of the bill's sponsors.

3. The Fairness in Music Licensing Act of 1998

a. Attached to the CTEA, this Act exempts certain restaurant and bar owners (less than 3,750 square feet) and retail stores (less than 2,000 square feet), permitting them to play background music via radio or television without ASCAP or BMI licensing. Larger establishments get a similar exemption if they conform to certain equipment restrictions. Restaurant owners also received enhanced procedural rights in challenging royalties charged by societies such as ASCAP and BMI.

4. The No Electronic Theft Act of 1997

a. This earlier legislation criminalizes "willful" copyright infringement where (a) done "for purposes of commercial advantage or private financial gain" or (b) involves copying or distributing (within a 180-day period and specifically "including by electronic means") works with a total retail value of more than $1,000. (17 U.S.C. 502(a)(2)(a), emphasis added.)

5. Eldred v. Reno

a. In a lawsuit filed in the United States District Court for the District of Columbia, Eric Eldred, a New Hampshire-based non-profit Internet publisher of public-domain literary works, challenges the CTEA's 95-year term for existing copyrights as exceeding the scope of Congress's copyright power under Article I, 8, on two grounds:

i. Retroactivity. The suit argues that it cannot "promote the progress of science and useful arts," as contemplated by Article I, 8, to grant retroactive benefits, as the CTEA does, to an author who has already created her work, or to someone who has already purchased the author's rights in the work in contemplation of a shorter term.

ii. Length of term. The suit argues that the new 95-year term exceeds the authority granted by Article I, 8, to afford copyright protection only "for limited times." The suit argues that the drafters of the Constitution contemplated protection only commensurate with an author's expected remaining life. The suit points out that since few authors begin creating until adolescence, a 95-year term would imply at least a 110-year authorial life expectancy.

b. Query whether Eldred would be protected under 17 U.S.C. 108, as amended by the CTEA, which provides that during the last 20 years of a work's copyright term, "a library or archives, including a nonprofit educational institution that functions as such" may reproduce and distribute the work "for purposes of preservation, scholarship or research," if the work is not "subject to normal commercial exploitation" and copies cannot "be obtained at a reasonable price."

Copyright SRBC