United States: Supreme Court Saves The Mouse

On January 15,2003,in a case entitled Eldred v. Ashcroft, the U.S. Supreme Court, by a 7-2 vote, upheld the constitutionality of the Sonny Bono 1998 Copyright Term Extension Act ("CTEA"),which enlarged the length of most copyrights from the time of creation until 70 years after the author's death, an extension in the duration of copyrights by 20 years.(For anonymous works, pseudonymous work and works made for hire, the term was extended to 95 years from publication or 120 years from creation, whichever expires first.) Since Mickey Mouse first appeared in the 1928 animation Steamboat Willie and other well known classics such as Gone With The Wind, The Wizard of Oz, Casablanca, High Noon, etc. are likewise becoming "long in the tooth," the Supreme Court's decision will prevent many invaluable copyrights from otherwise lapsing into public domain. The court's ruling, while not unexpected, marked the first time the constitutionality of Congressional action extending the term of copyright to existing works was ever challenged. In ruling for the government and the CTEA, the Supreme Court saved hundreds of millions (if not billions)for Hollywood, Wall Street, along with music publishers, songwriters and other content providers and owners.

In this case, Eric Eldred and others whose companies exploited public domain material contended that Congress went awry by including existing copyrights in the CTEA's enlargement of copyright duration. Such action, argued Eldred, exceeded Congressional authority under the Copyright and Patent Clause of the U.S. Constitution. The pertinent section of the Copyright and Patent Clause (Art.1, §8,C1.8)provides with respect to copyrights that "Congress shall have Power ...[t ]o promote the Progress of Science ... by securing [to Authors ] for limited Times ....the exclusive Right to their ...Writings. "The CTEA represented the fourth material extension of copyright duration. Previously, under the 1976 Copyright Act ("1976 Act"),Congress had extended federal copyright protection for 50 years from an author's death, commencing from the date a work was created (materially changing prior law, which computed the term of copyright from date of publication).The 1976 Act also provided a term of 75 years from publication or 100 years from creation, whichever expired first, for works made for hire. Both the 1976 Act and the CTEA (as well as prior Congressional extensions of copyrights in 1831 and 1909)applied to both existing and future works. Eldred challenged the CTEA, reasoning that by extending terms of existing copyrights (and not just future works),Congress had exceeded its constitutional authority to prescribe "limited Times" for copyright protection. By stringing together a series of "limited Times" extensions, Eldred argued that Congress could evade the constitutional mandate that copyrights be of limited duration. This argument was soundly rejected by the Supreme Court.

In so holding, the Supreme Court refused to read into the Copyright Clause a command that once a time prescription had been set, it became fixed in stone. Put another way, since the CTEA's baseline term of life plus 70 years was a "limited Time" for future copyrights, there was no legal reason for the new term not to be permissibly "limited" as to existing works. Acknowledging that Congress had consistently applied newly enacted copyright terms to future and existing copyrights, the Supreme Court quoted the following statement made by Representative Huntington at the time of the 1831 copyright extension:"[J ]ustice, policy and equity alike forb[id ]" that an "author who had sold his [work ] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the ] act.." In other words, the Supreme Court was not about to let existing copyrights of Leiber & Stoller, Rogers & Hammerstein, Bob Dylan, Disney, etc. be entitled to lesser protection than future copyrights.

Satisfied that the CTEA complied with the constitutional "limited Times" prescription, the Supreme Court next analyzed whether this law was "a rational exercise of the legislative authority conferred by the Copyright Clause." The court observed that a key factor in the CTEA's passage was a 1993 European Union ("EU")directive instructing EU members to establish a copyright term of life plus 70 years, and that,"[c]onsistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same term." For matching the EU directive by enacting a U.S. baseline copyright term of life plus 70 years, Congress clearly sought to insure that U.S. copyright holders would enjoy the same copyright protection overseas as their European counterparts. During the Congressional hearings, Register of Copyrights Mary Peters stressed this was a major reason for the CTEA, stating, in part, that while "our Constitution says limited times ...there really isn't a very good indication of what limited times is. The reason why you're going to life-plus-70 today is because Europe has gone that way ..."Thus, the Supreme Court refused to second-guess Congressional concerns about preserving good international copyright relations with our European trading partners.

The Supreme Court likewise deferred to Congressional concerns over, in the words of Senator Orrin Hatch," the failure of the U.S. copyright term to keep pace with the substantially increased commercial life of copyrighted works, resulting from the rapid growth in communications media." Given the explosive growth of digital content delivery, including satellite TV and DVDs, the voracious consumer appetite for such new products and services, as well as demographic trends that included materially longer life years and baby boomers starting families later in life, the Supreme Court acknowledged that it was primarily the task of Congress to fashion new rules made necessary by new technology. As stated by Senator Feinstein, the 1976 copyright term failed to secure "the right to profit from licensing one's work during one's lifetime and to take pride and comfort in knowing that one's children -and perhaps their children -might also benefit from one's posthumous popularity." Significantly, music luminaries like Quincy Jones, Bob Dylan, Don Henley and Carlos Santana all offered testimony during the House and Senate hearings that getting fair compensation under the copyright system for themselves and their heirs was a creative incentive. In concluding that the CTEA was a rational exercise of legislative power, the Supreme Court also accepted Congress "rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works."

For the same reasons, the Supreme Court rejected the contention that the CTEA extension of existing copyrights failed to "promote the progress of Science"(enumerated in the preamble of the Copyright Clause)as well as Eldred's remaining, more novel arguments, including an assertion that the extension of limited copyright monopolies under the CTEA was a violation of the right to free speech under the First Amendment. Noting that the Copyright Act specifically limits copyright protection for an original work to expressions and not ideas, the Supreme Court, quoting itself from an earlier decision, stated that this "idea/expression dichotomy strike [s ] a definitional balance between the First Amendment and the Copyright Act by permitting free communications of facts while still protecting an author's expression." Moreover, continued the Supreme Court, the CTEA itself supplemented traditional First Amendment safeguards by:(1)allowing libraries and archives to "reproduce" and "distribute, display or perform in facsimile or digital form" copies of certain published works "during the last 20 years of any term of copyright ...for purposes of preservation, scholarship, or research" if the work is not already being exploited commercially and further copies are unavailable at a reasonable price; and (2)exempting small businesses, restaurants, and like entities from paying performance royalties on music played from licensed radio, television and similar facilities (the so-called Fairness in Music Licensing Act of 1998,itself a controversial law).

Unwilling to second guess Congress, the Supreme Court upheld the constitutionality of the CTEA's retroactive extension of the term of existing copyrights. Observing that any other result would also call into question the prior copyright time extensions under the 1976 Act, the Supreme Court concluded that the CTEA's enlarged terms were consistent with the Copyright Clause's empowerment of "Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause." While opponents of the CTEA have decried Eldred v. Ashcroft as an anti-consumer, affirmation of monopolistic rights, studios, show business guilds, performance rights societies, record companies, music publisher and artists have all hailed this ruling. And, should Walt Disney ever get word of this case, he'll no doubt be smiling, knowing that Mickey Mouse has, for the time being, again eluded the public domain.