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    • Point of View
    Quarterly Newsletter

    New Copyright Law has Double Impact

    By Deborah A. Basile, Esq.
    The framework for copyright law is found in the United States Constitution itself:

    "To promote the Progress of Science and the useful Arts, by securing for a limited time to Authors and Inventors the exclusive right to their respective Writings and Discoveries."
    (U.S. Const., Art. I, Sec. 8, Cl. 8).

    Copyrights on literary, artistic or musical work is generally governed by federal law and grants the owner of the copyright the exclusive right to reproduce, distribute, perform or display that work or works derived from it. The duration of copyright protection depends on the nature of the work, but generally is measured by the life of the author plus a period of years. Violating the grant by using copyrighted work without permission is copyright infringement. Writers, artists, composers, choreographers, sculptors, musicians and their heirs reap the benefit of their work for future years through licensing and royalty payments. Upon the expiration of a copyright, a work comes into the "public domain" and may freely be copied, performed, distributed or used in the creation of derivative works by any person in the United States without the permission, license or authorization of the copyright holder.

    On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act. The Act, sponsored by the late entertainer and promoted by his wife, extended copyright protection by 20 years for works published after January 1, 1923. Works copyrighted by individuals since 1978 are protected for the life of the author plus 70 years. Works made by or for corporations are protected for 95 years from the date of publication. Works copyrighted between 1923 and 1978, in whatever form, are protected for 95 years. Under the new law, many artistic expressions which were about to enter the public domain are now protected well into the new millennium. The new law is a windfall for large publishing companies, such as movie giants like Disney, Warner Bros. and Paramount and mega-licensing conglomerates which make millions in royalties from old copyrighted works. Mickey Mouse, copyrighted in 1928 as Steamboat Willie, would have entered the public domain in 2004. Under the new law, Disney will continue to bring in billions from Mickey until the year 2024.

    The Boston Globe recently reported that major movie studios as well as the Motion Picture Association of America, and other trade groups and individual Disney employees made contributions to the U.S. Senate campaigns of supporters of the new law to ensure its safe passage.

    As a result of the new law, small publishers must wait many additional years to publish freely works such as historical anthologies and books of local interest which may be of great significance to educators and researchers. American consumers will pay more for copies of books and music for which copyrights have been extended since copyright owners will be entitled to royalties for a longer time.

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    		Of greatest concern to small publishers, is that the objective of the drafters of the Constitution -- that the public domain be renewed by current works of creativity -- is not being met. The flow of writings for public use and for free educational and entertainment purposes, has been slowed to a mere trickle. Perhaps new derivative works will not be created because composers and artists may find it too difficult or expensive to get permission or to obtain licenses and pay royalties to the estates of original authors.

    One consequence of the new law is its impact on Eric Eldred of Derry, New Hampshire who, for the love of books, built an e-library on a website where he published and distributed free of charge, old, out-of-print and unusual works of authorship for public use. He posted online works which are no longer protected by copyright and embellished them with explanatory text and illustrations to make them more readable. All of Eldred's online books are available to blind readers through text-to-speech equipment. Unfortunately, the new law has severely curtailed his work. To comply with the new law, Eldred has been forced to remove works from his website and to cancel the postings he was planning. He has initiated a lawsuit to challenge the constitutionality of the new law. Among other things, Eldred alleges that the law is unconstitutional because it violates the restrictions of Article 1 of the constitution by imposing retroactive extensions for works that already exist and that this does not "promote the progress of science and the useful arts." Further, Eldred alleges that Congress, through the new law is granting copyright holders protection for more than a "limited time." Copyright law is intended to provide an incentive to authors to create new works which will, by the passage of time, build a rich and fertile public domain. The Eldred complaint alleges that "conferring an economic award" upon an author who has long died does not fulfill the objective of bringing new works to market.

    An important argument raised by Eldred is that the new law, by extending the term of copyright, results in the government's transferring public property into private hands without compensation. Eldred argues that the public has a present right to the future interest of intellectual property when, by law, this property passes into the public domain. The extension of the copyright term benefits private parties to the detriment of the public.

    Deborah A. Basile is a shareholder with the law firm of Doherty, Wallace, Pillsbury and Murphy, P.C. in Springfield. She concentrates her practice in the area of intellectual property. This article was printed in the Union News Business Monthly on October 4, 1999 and is reprinted here with permission. This material may be considered advertising under the rules of the Supreme Judicial Court of Massachusetts.



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