Now that the Supreme Court Has Declined to Limit Copyright Duration, Those Who Want to Shorten the Term Need to Look At Other Options, Including Constitutional Amendment

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Feb. 13, 2003

Recently, the Supreme Court decided in Eldred v. Ashcroft that a copyright term of life plus 70 years is "limited" as the Constitution's Copyright Clause requires. As a result, the Court declined to strike down the Sonny Bono Copyright Term Extension Act.

Once the Court found that Congress had not violated the Copyright Clause, it was left with no other way to rein in Congress's excesses in this area. Longstanding precedent counseled that the Court ought to defer to Congress on the policy aspects of copyright law. And, as I noted in an earlier column, Congress had at least one good reason to enact the current copyright term: It harmonizes United States law with that of the European Union.

Yet there have been many such Congressional excesses in this arena - in the form of repeated extension of the copyright term at the behest of corporations who hold copyrights, and to the detriment of the public domain. Is there anything that can be done about them?

Absolutely. It's time to take the issue back to Congress, and fight for a rollback of the duration of the copyright term.

Abolishing Copyright Altogether Would Be Sheer Folly

A now entrenched movement in the Internet world favors eliminating copyright altogether. And granted, young artists and performers rarely are initially eager to enforce their copyright, because they are first concerned with building an audience.

But if they want, they can waive copyright protection (as many have done by offering free downloads of music). Copyright is an option, not a requirement, for the creator.

Moreover, the successful young artists will change their mind when they seek to be musicians full-time, meaning they must live off the revenue from their music. Copyright gives them that option, too - the option to change their mind, and decide, work by work, whether to sell or give away their music.

In the end, copyright protection is sorely needed if creators are ever to capitalize on their work. Without copyright, whenever a creative work, such as a song, poem, or movie, entered the market, the artist would get little more than the initial payment for the initial use. Once the work was out there, it could be copied with impunity - with no payment to the author for subsequent users' drawing on, or simply enjoying, his or her creativity.

Reversing The Trend of Lengthening Copyright Duration

Currently, no such balance is being struck. Instead, only one side of the balance - the need to protect creative works (or more accurately, in the modern world, the corporations that own many of them) is receiving attention.

Congress has always increased, and never decreased, the duration of copyright term. It began as a maximum of 28 years, changed to a maximum of 56, then changed again, to life-of-the-author plus 50 years. The Sonny Bono Act, as noted above, brought the term to life-of-the-author plus 70.

All these extensions have occurred at the behest of copyright owners and the industries that thrive on copyright ownership. With little, if any, opposition and a Congress that treats copyright regulation as a species of trade regulation, they have written their own ticket for duration from the beginning.

Once, the copyright term spanned a single generation. Now, it spans three. From any objective perspective, it is simply too long.

Three Options For Those Who Want to Freeze or Roll Back Copyright Duration

There are three ways out of the constant increase in duration. Unfortunately, they are all uphill battles.

First, those who want to decrease duration could persuade Congress to take responsibility for copyright law. They might ask it, for instance, to hold hearings to debate the very question of what is the correct copyright term for maximizing the public good (not the copyright industry good). Good luck.

Second, opponents of lengthy copyrights could go straight to the copyright industries with their arguments. To counter the "harmonization" argument, they would have to lobby both U.S. and EU industries, though that is hardly a meaningful hurdle given that most of these industries have consolidated into multi-national corporations. Again, this option is unlikely to succeed.

A boycott of companies that do not sign on to a pledge to endorse a shorter term could work. Other tactics might work too - such as demonstrations, well-crafted public relations, staged public debates, and drafting leading creative stars. Unfortunately, it will take nothing short of a social movement to stop further increases.

Pressure on corporations does work sometimes: Consider how Adobe changed its mind about its support for the prosecution of Dmitri Skylyarov and the Russian corporation Elcomsoft, for selling software that cracked the protections on Adobe's eBook reader. Initially, Adobe supported the prosecution, but public outcry from the same young people who belong to the "open source software" movements changed its mind.

The reality is that those who want copyright term increases halted cannot simply spout anti-copyright rant and expect things to change. They have to come up with reasonable and defensible public policies that can be explained in terms of the public interest. Two separate forces need to converge and carry the message.

First, there are the consumers - those who are frustrated at paying so much, for so long. Every former Napster user likely falls into this category - and that's millions of people. Second, there are the "open sourcers" - those who feel, as a matter of principle, that there should be no (or a very short) copyright term.

If the latter were to ally with, and organize, the former, together they could be a powerful movement. The consumers have the numbers; the "open sourcers" have the passion (and some numbers of their own).

That leads us to the third option: The social movement described above should not stop at a statutory amendment, but rather demand a constitutional amendment that forever caps copyright duration. This is by far the most attractive result of the three options.

Fifty years would be reasonable for all sides. It will not be enough, however, to cap the term in the United States, because as the Eldred decision and its acknowledgment of the harmonization between the EU and the U.S. on duration proved, copyright law is global. When there is harmonization (even if everyone is harmonizing off-key), there will be tremendous pressure to retain the status-quo. So the protesters and the movement will have to work on the Europe Union as well if they hope to get the United States cap beneath the current term.

Amending the Copyright Clause: Why It's a Good Idea

With some constitutional provisions, we tinker at our peril. Fortunately, the Copyright Clause is not one of them.

Moreover, if they were alive today, the Framers might well have supported an amendment to the Copyright Clause. The very philosophy of the Constitution is to expect, oppose, and correct the inevitable abuses of power. And over the years, the Copyright Clause has become a flashpoint for just such abuse. While it is corporate, not government, power that is being abused, it is an abuse of a power granted under the Constitution nonetheless. If the forces that already exist can become sufficiently organized to fight this battle, they will have fulfilled the Framers' highest ambitions.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her other columns on copyright and constitutional law can be found in the archive of her columns on this website. Her email is hamilton02@aol.com.

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