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10/4/2002
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On The Horizon: Just Who Benefits From 20 More Years?

Plaintiffs say copyright extension infringes on free speech.

One of the first things the U.S. Congress did, shortly after convening in 1790, was pass a Copyright Act, exercising its power under the brand-new Constitution to "promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings."

That first Copyright Act gave the "author of any map, chart, book or books ... the sole right and liberty of printing, reprinting, publishing and vending [it] for the term of fourteen years," renewable for an additional 14 years (if the author were still alive when the first term expired).

As copyrights became more valuable, and as copyright holders got more organized, Congress gave them longer and longer protection. In the past 40 years alone, Congress has increased copyright duration no fewer than 11 times, most recently in 1998, when what became known as the Sonny Bono Copyright Term Extension Act added 20 years to the copyright term; under the act, copyright lasts for the author's entire lifetime plus an additional 70 years after death (it had previously been life plus 50 years), or, for works created by corporations, 95 years (it had been 75).

This additional 20 years of protection was granted prospectively and retrospectively; not only would works created after 1998 get the new, longer term, but works created long ago whose copyrights were about to expire--George Gershwin's "Rhapsody In Blue" (whose copyright, but for the Copyright Term Extension Act, would have expired Jan. 1, 2000) and Walt Disney's cartoon character Mickey Mouse (Jan. 1, 2004), for example--got the additional 20 years of protection (and, of course, royalty collection) as well.

We bring this up because on Oct. 9, the Supreme Court will hear arguments in Eldred v. Ashcroft, a case challenging the term extension act as unconstitutional.

This is important because the real issue before the court isn't "How long should copyrights last?" but rather "Does the Constitution set limits on Congress' freedom to make copyright law?"

The Eldred plaintiffs say that copyright law isn't ordinary economic legislation and that Congress has to have substantial reasons when it alters copyright law. The Constitution's copyright clause, they argue, gives Congress only the power to enact copyright laws that have some public benefit. How, they ask, does a retroactive extension of copyright do that? We can't get blood from a stone or more songs from George Gershwin, who died in 1937; what public benefit derives from giving him an extra 20 years of royalties?

Moreover, plaintiffs continue, copyright law regulates speech. Giving longer (or stronger, or broader) protection to copyright holders necessarily means limiting someone else's rights to reprint, perform, republish, or reuse copyrighted works.

If the Court agrees, and it's too close to call, the legal landscape for copyright law changes dramatically. The copyright battlefield will have a new player on it--the First Amendment and the federal courts, in their role as enforcers of the First Amendment.

That, in the end, is what's at stake in Eldred v. Ashcroft, and that, we think it safe to say, is important. Stay tuned.

David Post is a Temple University law professor and senior fellow at the National Center for Technology and Law at the George Mason University School of Law. Reach him at postd@erols.com. Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at bbrown2@gmu.edu.

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