Many publishers and authors have different opinions about the 1998 Sonny Bono Copyright Extension Act (CTEA), which increased the term of copyright protection in the United States by 20 years. If you are a publisher and/or an author, you need to understand how it came to be and how it affects you.

Specific issues to keep in mind include:

• How important are public domain works?
• Should the term of copyright protection once again be extended when the 20-year extension nears its end?
• If copyright protection is extended should the extension apply to then-existing works or only to future works?
• Should the term of copyright protection be reduced?

Raising and Re-raising the Limit

The Copyright Clause (Article 1, Section 8) of the United States Constitution gives authors exclusive rights to their work for “limited times” before those works lose their copyright protection and enter the public domain. Once the term of copyright protection expires, anyone may use a public domain work without obtaining permission from the copyright owner.

Historically, Congress has determined the meaning of the phrase “limited times.” In the first copyright statute, enacted in 1790, the term limit of copyright protection was 14 years with the possibility of one renewal extension for an additional 14 years; renewal could occur only if the author was still alive at the end of the initial 14-year term. Subsequently, Congress extended the copyright term on a number of occasions. From 1978 until 1998, the term of copyright protection for an individual author was the author’s lifetime plus 50 years, and the term for a “work for hire” was 75 years after the work was first published.

Then Congress passed CTEA. Many large movie studios and record and publishing companies had lobbied for it because they wanted to prevent valuable properties of theirs from falling into the public domain. And a 1993 European Union directive also spurred its passage. The directive instructed the Union’s member nations to establish a standard copyright term for the author’s life plus 70 years and required those nations to deny the longer term of copyright protection to any country whose copyright laws did not provide for the same term of protection.

Under current United States copyright law, an individual work is protected for life plus 70 years, and a work for hire is protected for 95 years after its publication. This 20-year term limit extension applies to future works and, retroactively, to works already in existence.

A Challenge to CTEA

After the passage of CTEA in 1998, a group of plaintiffs headed by Eric Eldred–founder of Eldritch Press, a publisher of public domain works in an electronic format–challenged the constitutionality of CTEA. Their arguments included the following:

• The extension of the term of copyright protection deprives them of their First Amendment rights and goes beyond the authority granted Congress to limit the term of copyright protection in order to promote “progress in the useful arts.”
• The passage of CTEA benefits large corporations but harms small authors and publishers by keeping “old” works from entering the public domain for progressively longer periods. This result is contrary to the purpose of the Copyright Clause in the Constitution, which articulated the need to balance authors’ rights to earn an income from their creative work with society’s need for the free and unimpeded flow of ideas. CTEA, the plaintiffs contended, failed to balance these interests effectively, with the result that the scale tipped heavily in favor of large copyright owners, allowing them to monopolize their copyrights rather than advancing the free flow of ideas.
• The retroactive nature of CTEA permitted a copyright owner who had previously obtained copyright protection for a specified term to benefit from a longer term of copyright protection. The retroactive aspect of CTEA, Eldred maintained, was nothing but an act of “robbing the public” of works that should be entering the public domain.

In 1999, when the District of Columbiadistrict court dismissed Eldred’s action, the case was appealed, and in February 2001, a three-judge panel of the United States Court of Appeals for the District of Columbia also ruled against Eldred. In both cases the United States government argued successfully that Congress has the sole power to establish the term of copyright protection and that the passage of CTEA was within the scope of this power. Eldred was then appealed to the United States Supreme Court.

The Supreme Court Steps In

In October 2002, the Supreme Court heard oral arguments on the issue of whether there are constitutional limits to Congress’s power to extend the term of copyright protection. The United States government’s position was that Congress was within its power to extend the term, that the extended term benefited authors and their families, and that it put the United States on equal footing with European countries with regard to copyright laws.

The plaintiffs reasserted the arguments discussed above, placing primary emphasis on the extension term for then-existing works. They said that the passage of CTEA had prevented thousands of “old” works from being republished in print and/or e-book editions and made available to the public. According to a brief filed on behalf of Eldred, approximately 10,000 of the titles originally published in 1930 had gone out of print. If CTEA had not been passed, the brief argued, any of those titles could be republished and made available to the public as early as 2006, but because of CTEA, many might have to remain out of print until 2026 instead.

By a seven-to-two decision in January 2003, the Supreme Court held, as the courts below had, that CTEA was consistent with the “limited times” provision of the Copyright Clause of the Constitution and with the First Amendment’s free speech guarantee and that it was equally applicable to both then-existing works and future works.

Although I am not offering legal advice here, I do have a suggestion for all publishers and authors. Figure out where you stand on the issue of “limited times” for copyright protection. What does the concept mean for you in practice? Does it advance or stifle creativity? A dialogue on copyright term extension should be ongoing at publishers’ and writers’ gatherings, and once you have formed your views, you should make them known to your representatives in Congress.

© 2003 Lloyd L. Rich

Lloyd L. Rich is an attorney practicing publishing, cyberspace, and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206; 303/388-0291; fax 303/388-0477; rich@publishingattorney.com; www.publishingattorney.com. Holly Panetta, a third-year student at the University of Denver School of Law, provided the research for this article.