Like patent rights, copyright is covered by Article 1 of the U.S. Constitution, which states that Congress shall have the authority “to promote the progress of science and useful arts, by securing for limited times [emphasis added] to authors and inventors the exclusive right to their respective writings and discoveries.” Originally, Congress specified that copyright should last 14 years, renewable to no more than 28 years.The idea was wise and simple: authors and inventors should be able to control rights to their works for a brief period during which they can reap the rewards. This encourages creativity and innovation. But to help disseminate these works widely, the works should revert to the public domain as soon as reasonably possible. That way the public benefits, too.
Lawrence Lessig, a Stanford University law professor, champion of the public domain, and the driving force behind the Eldred case, likes to remind people that the classic renderings of both Uncle Sam and Santa Claus were the work of Thomas Nast. We take them for granted now, but had the Sonny Bono Act been in place, everyone from the Department of Defense to department stores would have had to pay royalties. Neither image would likely be a feature of our public life.
But all that was forgotten when the Mickey Mouse legislation was passed in October 1998. The public was thoroughly shut out of the process. There was virtually no open debate in the House or Senate, and President Clinton quietly signed this travesty into law. The lawmakers and Clinton knew they were robbing the public to enrich a few powerful corporate titleholders. They knew they were limiting the public’s access to its own cultural heritage.
Thanks to the tireless work of people such as Lessig, the case is now before the U.S. Supreme Court. Eldred has been joined by some nine additional plaintiffs-organizations in the business of providing access to such public-domain works as songs, books, and films. Friend-of-the-court briefs in support of the plaintiffs have been filed by economists, intellectual-property law professors, no fewer than 15 library associations, and a bevy of well-known authors, including Peter Matthiessen.
The Supreme Court’s track record on copyright issues offers little to indicate how the justices might rule; indeed, most analysts were surprised the justices even agreed to hear the case. Copyright lawyers emphasize that a Supreme Court decision is likely to have profound implications for intellectual property. Whatever the outcome, the showdown shines a spotlight on a shameful corporate handout that ought to prompt us to reassert the public’s part in the patent and copyright bargain.