Commentary on Copyright Extension
by Daren Fonda, August 29, 1999
Boston Globe Magazine
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By Daren Fonda, 08/29/99
|Books like The Great Gatsby, films like The Jazz Singer, musicals like Show Boat, pop icons like Mickey Mouse - all poised to enter the public domain - will remain under copyright for another two decades.|
The day Eric Eldred decided to launch a Web site, he didn't think many people would care. He was doing it to inspire his triplet teenage daughters to read more. Emma, Anna, and Bonnie had come home from Pinkerton Academy in Derry, New Hampshire, complaining about Nathaniel Hawthorne's The Scarlet Letter. The three sophomores, especially Emma, were put off by the old-style language and found the book boring.
It was the spring of 1995, and Eldred, a technical analyst for a computer magazine, was looking for a hobby. "I thought to myself: `This is a great work of literature. It's the first piece of literature teenagers are exposed to. Can I do something to get them more interested in it?"'
Eldred went on the Internet to see if there were any resources to liven up the book.
Like many classics, it had been put on line by several nonprofit sites. But Eldred felt these electronic editions were inferior to their print versions; they had typos, or relied on outdated texts, or were difficult to read since they'd been scanned in crudely. He decided to create his own on-line edition, sprucing it up with a glossary, a time line, illustrations, and a biography of Hawthorne.
Then he thought, why not put other books on line, too? He envisioned a global electronic library that would make unusual and out-of-print books available for people who couldn't find them in libraries or used-book stores. His e-library would be accessible to the blind through text-to-speech generators. Getting permission from publishers wouldn't be a problem, he thought, since the works he wanted were all in the public domain, their copyrights expired.
Eldred filled his digital shelves with books that suited his tastes. There were texts on small boats, 19th-century natural histories, children's stories for parents to read aloud to kids. He published The Life of the Caterpillar, by amateur entomologist J. Henri Fabre, to show children that you don't need a PhD to do good science. He put up a novel called Wooden Crosses, by Roland Dorgeles, because he thought it was a terrific, though forgotten, World War I story. He even scanned in a book of poetry by his mother.
At first, not many people noticed the Web site: eldred.ne. mediaone.net. But as time went by, a steady flow of visitors streamed in, and the response was strong. People around the world e-mailed praise. His daily hit count grew to 20,000. In 1997, the National Endowment for the Humanities recognized his Eldritch Press as one of the 20 best humanities sites on the Web. More recognition came when both the Nathaniel Hawthorne Society and the William Dean Howells Society endorsed Internet links to his pages. To Eldred, the recognition was thrilling, and he planned an ambitious agenda, hoping to scan in rare works with copyrights that were scheduled to expire.
Then something happened that would change not only Eldred's homespun Web site, but his life as well.
October 27, 1998, as the nation was riveted by the impeachment scandal, President Clinton quietly signed into law the Sonny Bono Copyright Term Extension Act. The lack of ceremony belied the far-reaching implications of the law, whose impact would be felt from the corporate headquarters of Disney to the back rooms of small New England publishers. The act, sponsored by the late singer-songwriter and congressman, extended protection by 20 years for cultural works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50"; works made by or for corporations, known as "works made for hire," got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
Pop icons such as Mickey Mouse, books such as The Great Gatsby, films such as The Jazz Singer, musicals such as Show Boat - tens of thousands of works copyrighted under earlier laws and poised to enter the public domain - were covered until at least 2019.
The law ensured that the estates of writers and composers would continue to collect royalties from the artists' works. It was also crucial for large publishing houses and movie studios like Disney and Warner Bros., which rely on revenues from licensing their old copyrighted products. (Mickey Mouse, copyrighted in 1928 as Steamboat Willie, would have entered the public domain in 2004; Mickey - through Disney's consumer products division and theme parks - helped bring in $8 billion in 1998, according to the New York investment bank Salomon Smith Barney.)
The Bono Act, however, also affected noncommercial interests like Eldred's. He could still publish The Scarlet Letter, but a couple of favorites were now off-limits: an out-of-print collection of stories by Sherwood Anderson, Horses and Men, and an edition of Robert Frost's poetry collection New Hampshire, , the only one, Eldred claims, with the correct punctuation. Both works, published in 1923, were covered under Bono.
Eldred wasn't just angry about the act's impact. He and other critics didn't like the way the bill became law. In 1995, it had been introduced in the House and the Senate, and both chambers held hearings. But the bill never made it out of committee, because restaurant and bar owners wanted a broader exemption on paying royalties for music broadcast in their establishments. It took three years for the restaurateurs to win their exemption. The bill cleared the House in March 1998 but stalled in the Senate. Finally, in October, just before the end of the congressional term, a similar version reached the Senate floor, passed by unanimous consent, and cleared the House the same day in a voice vote. No members of Congress had to go on record with their votes. It didn't help the bill's critics that the Starr Report had recently been delivered and the Washington press corps was preoccupied with the midterm elections and Bill Clinton's impeachment hearings.
Opponents thought the bill had been slipped through when no one would notice. "There wasn't any debate," says Eldred, "no public consideration of the trade-offs being made. Where were the people charged with protecting the public domain - historians, archivists, free speech advocates? I was writing letters to newspapers, trying to get attention to the issue. But the public didn't realize what was going on; they didn't understand the consequences."
One person who had come forward was Arizona State University law professor Dennis Karjala, a copyright expert who, in 1995, had rallied more than 40 other law professors against copyright extension. He, too, felt stymied. "For the first time in our history, almost nothing is entering the public domain," says Karjala. "You have some famous copyrights in danger of expiring. Their owners didn't relish their money stream drying up."
Many of these copyright owners had made it clear to Congress that they wanted an extension bill passed. According to the nonprofit Center for Responsive Politics, in Washington, media companies and their political action committees contributed more than $6.5 million to members of Congress during the 1997-98 election cycle. Representative Howard Coble, a Republican from North Carolina and cosponsor of the House bill, got $63,000 in individual and PAC donations. A Senate cosponsor, Republican Orrin Hatch of Utah, received $50,000 from major donors, including the seven major movie studios, the Motion Picture Association of America, and the American Society of Composers, Authors, and Publishers.
Disney was one of the biggest donors. Eight of the Senate bill's 12 sponsors received contributions from Disney, as did 10 of the original House bill's 13 sponsors. Democrat Patrick Leahy of Vermont, the ranking minority member on the Senate Judiciary Committee (which passed the bill) and a man who very publicly forgoes PAC contributions, got nearly $20,000 from individual Disney employees. (Only Time Warner's employees contributed more. They gave Leahy $36,000.)
Disney chairman Michael Eisner even lobbied personally. One week after he flew to Washington to meet with Senate Majority Leader Trent Lott of Mississippi, Lott signed on as a cosponsor. That day, Lott's campaign committee received a check from Disney for $1,000, and 11 days later, Disney donated $20,000 in unrestricted "soft money" to the National Republican Senatorial Committee.
The reason for all this lobbying was clear: Even bigger money - was at risk. As the Bono bill's advocates pointed out, the nation's "copyright industries" - publishing, film, music - contributed $280 billion to the US economy in 1996. Though most of these revenues come from recent works, old copyrights are also highly lucrative. The Rodgers and Hammerstein Organization, for instance, earns $10 million annually in royalties and licensing fees. A nationwide license for a Gershwin song, worth between $45,000 and $75,000 15 years ago, now earns more than $250,000. (George Gershwin's Rhapsody In Blue, copyrighted in 1924 and scheduled to enter the public domain on January 1, 2000, under the old law, became United Airlines's theme song for an estimated $500,000.)
Perhaps the lobbyists' most effective argument was that American copyright law should be made to conform with that of the European Union, where most American culture is consumed. The PACs noted that America's intellectual property is its most successful export, earning $60 billion annually on foreign shores. If US law was not harmonized with the European standard of "life plus 70 years," copyrights on US media would expire in Europe before they did at home, unfairly penalizing American corporations and creators. Rock star Carlos Santana, speaking for his colleagues, testified, "I find it unacceptable that I am accorded inferior copyright protection in the world marketplace."
Protect American interests abroad - who could argue with that? Senator Edward M. Kennedy remarked in the Senate Judiciary Committee report: "Harmonization [with European law] will yield significant economic benefits to our Nation generally and to our creators in particular - benefits which, in turn, will stimulate future creativity and eventually lead to a broader and richer public domain." Republican Senator Strom Thurmond of South Carolina later concurred: "This bill will greatly benefit the American copyright community."
To professor Karjala, though, Bono was little more than corporate welfare. "The media companies gave heavily in return for extra protection," he says. "It's as simple as that." He calls the harmonization argument a smokescreen. "Our trade surpluses [with Europe] are dependent on current works like Jurassic Park, not on the relatively few works from the 1920s and 1930s whose copyright owners benefit from term extension. The biggest market for these older works is right here at home. So it's mainly American consumers who wind up paying more. It's hard to argue that the law would have much impact on our balance of trade."
Small publishers were especially hard hit. The Higginson Book Company, a publisher of genealogies and local histories in Salem, is now barred from publishing scores of old works like Maurice B. Dorgan's 1924 History of Lawrence, Massachusetts - books that have no mass-market value but are invaluable to individual researchers. Higginson publishes such books on request, as one-shot deals. But the Bono Act shields those works, too. Says general manager Laura Bjorklund: "We often can't find the original copyright holders, and we can't publish without their permission. It used to be that many valueless copyrights simply expired, and we could then publish those works. Now they're locked up."
Eric Eldred seems mild for an insurrectionist. He's 55 years old, with short gray hair and a soft voice. A lifelong bookworm, he went to Harvard at 16 and studied philosophy on a National Merit Scholarship; since then, he has worked as a newspaper reporter, a medical technician, and, most recently, a computer programmer. His wife, Julie, is a nurse; their three daughters have left home for college. At home in the hills outside Derry, Eldred spends his time reading, thinking about literature, and working on his Web site.
Eldred's mother was an autodidact - she taught herself marine biology - and Eldred has educated himself in everything from sailing to entomology. There are 4,000 books in his colonial-style house - on shelves in the kitchen, living room, and hallways. Seeing him there, surrounded by his passion, it's clear he is a man who cares deeply about learning.
After the Bono law passed, Eldred wanted to act. In protest, he shut down his Web site for a few days, and he considered publishing a copyrighted book as a form of civil disobedience. During the Vietnam War, he'd been a conscientious objector, disrupting military induction ceremonies as a member of the Boston Draft Resistance Group. But now, a family man, he wasn't keen on going to prison for the right to publish Robert Frost.
Eldred started talking up his cause. He finally managed to get a few newspaper stories written, and one of them caught the attention of Harvard Law School professor Lawrence Lessig. Lessig contacted him and asked if he'd like to challenge the law. Eldred said yes, and Lessig took the case pro bono. In January, he filed a complaint against the government on Eldred's behalf with the US District Court for the District of Columbia. The professor enlisted colleagues from Harvard's Berkman Center for Internet & Society; he got one of Boston's most prestigious firms, Hale & Dorr, to handle the technical details; and he corralled nine co-plaintiffs - including Higginson Books and the American Film Heritage Association - to add muscle to the case.
Lessig thought Eldred could make legal history. He saw Bono's impact reaching far beyond Eldred's site; public access to art works was at stake. "Our fear is that unless people appreciate the importance of the public domain, Congress will continue to enclose it," he says. As Lessig explains, if a work is in the public domain, anyone is free to perform or distribute it and create new interpretations - plays, books, movies, CD-ROMs. The result can be a cultural windfall. Disney - arguably the nation's largest user of public domain characters - creates blockbuster films from them: Pocahontas, Snow White and the Seven Dwarfs, The Hunchback of Notre Dame. (Heart of Darkness) can become a radically different movie (Apocalypse Now); an old story can become a musical (Jesus Christ Superstar).
Conversely, overprotecting authors' rights can lead to cultural deficits. "How do you measure how many new works aren't made because authors can't get permission to create derivative works?" asks Eldred. "Shakespeare based his plays on older stories; what if he had to pay royalties and get his interpretations approved by the original authors' estates? Would he have created Hamlet and King Lear?"
Eldred lists a litany of consequences. Ira Gershwin's estate requires that Porgy & Bess be performed only with black actors. "Happy Birthday to You," protected until 2031, technically cannot be performed in public without a license; waiters aren't supposed to sing it unless their restaurants pay royalty fees. Even the US government and the major political parties would feel the restrictions. The 19th-century cartoonist Thomas Nast, who invented the modern version of Santa Claus, also created our image of Uncle Sam and drew the symbols for the Democratic and Republican parties, the donkey and elephant. Were Nast's creations under Bono-style copyright, the government would have had to pay Nast's heirs for recruitment posters; both political parties would have had to pay fees, as would every department store come Christmas time. More than likely, Uncle Sam wouldn't be the symbol of the country.
Eldred and Lessig aren't disputing that creative artists should profit from their work; they believe in economic incentives. But the question is one of scope. How much protection is reasonable as an incentive to produce? And when should a work become available to society as a whole?
No less a visionary than Thomas Jefferson thought about these questions. As a lawyer and writer, he knew American authors needed some copyright protection, but he also wanted a vibrant public domain, fearing that long-term copyrights would stifle the free flow of ideas. "Inventions cannot in nature be a subject of property," he wrote. Influenced by Jefferson, the framers of the Constitution struck a compromise, authorizing Congress to grant copyright protection along the lines of English statutory law, which stipulated limited terms. In broad language, the framers said Congress shall have 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."
Those words left plenty of wiggle room (what exactly is a "useful" art?), but the word "limited" was clear: It meant the framers never intended authors to have perpetual ownership of their creations, something no one now disputes. But Bono is just one of several statutes Congress enacted over the last two centuries to lengthen terms incrementally, resulting in de facto perpetual protection, say critics.
Among academics, the law's history is known as copyright creep. Maximum protection was just 28 years in 1790; Congress then extended terms in 1831, 1909, and throughout the 1960s. In 1976, the law was revised again: Individual authors got copyright protection for the duration of their lives, plus an additional 50 years for their heirs; works created or owned by corporations, known as "works made for hire," were protected for 75 years from first publication. The Bono Act tacked on two decades to both categories, and it granted a maximum of 95 years for individuals and corporations for works copyrighted before 1978 (when the 1976 law went into effect).
Lessig has two major gripes with the Bono law. First, he says, it infringes on Eldred's freedom of speech: "The extension takes works that would have entered the public domain and privatizes them improperly; the result is like a tax on freedom of expression. Eldred can't publicly utter these words now without paying a penalty imposed by the government."
Bono also violates the Constitution, Lessig says, because it flunks the copyright clause's "incentive" requirement. Since you can't give an incentive to a corpse - and the new law extended protection retroactively, to works created by authors now dead - it fails the litmus test. "The Supreme Court has consistently said the primary purpose of copyright is not to give authors some particular benefit, but to protect the public domain," says Lessig. "Extensions can't be retroactive, because the Constitution gives Congress the right to grant exclusive rights only if those rights create incentives to produce more speech. Extending these benefits retroactively doesn't serve any purposes the copyright clause was designed for."
The law's proponents - including one of Lessig's Harvard Law School colleagues, Arthur Miller - have a different interpretation. In an amici curiae, or friends of the court, brief filed in June, they argue that copyrights are still limited and that Bono is consistent with past copyright extensions, which all covered preexisting works. "Congress's repeated extensions reflect a consistent congressional judgment that yesterday's works should not enjoy lesser protection than tomorrow's simply because new copyright legislation was passed today," they write. Extending copyrights to old works satisfies the Constitution's incentive requirement because heirs or corporations, even if they didn't create the original works, may use the additional income to subsidize the creation of new ones. Historically, the courts have always granted considerable leeway to Congress when it comes to copyright issues. Why overturn precedent, when there's no reason the courts' stance should change? Eldred's complaint, they write, is no less than a "manifesto for revolution - the overthrow of more than two centuries of consistent constitutional congressional practice under the Copyright Clause."
To that, Lessig retorts: "Is there any reason to think that the great-great-grandson of some long-dead author is more likely to write if Congress gives him a subsidy than, say, go on vacation? Historically, the courts may have been lenient, but they recently signaled an important change. In all of the 19th century, Congress changed the term of copyright only once. In the first half of the 20th century, they changed it once again. In the 38 years that I have been alive, they have changed it 11 times. It's one thing when courts are deferential to a well-behaved Congress. If Congress can change so much, why shouldn't the courts?"
Lisa Alter, a New York attorney who represents songwriters, says Eldred's case is "entirely without merit." Bono, she says, "is simply an adjustment of the term to reflect changes since 1976: demographic shifts, people living longer, as well as the change of term in the European Union."
Eldred needs to win in US District Court and then prevail on appeal for his case to reach the Supreme Court, perhaps as early as next fall. There, he may have at least one sympathetic vote from Justice Stephen Breyer, who, as a Harvard professor in 1970, wrote an article for his school's law review in which he raised the question of scrapping copyrights altogether. "Authors in ancient times, as well as monks and scholars in the middle ages, wrote and were paid for their writings without copyright protection," said Breyer. "Taken as a whole ... the evidence now available suggests that, although we should hesitate to abolish copyright protection, we should equally hesitate to extend or strengthen it."
Eldred, for his part, thinks he'll win. And even if he doesn't, he hopes his suit will spur debate about the public domain and force media companies to reconsider their position. "Maybe they'll start protecting it," he says, "like other industries, which were once resistant, now make efforts to protect the environment." Whatever happens, he has a backup plan: creating what he calls a "copyright conservancy," a kind of intellectual property preserve with copyrighted works donated by their authors for public use. "Protecting the public domain," says Eldred, "isn't much different than protecting the environment."
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