United States of America

[US] Supreme Court Upholds Copyright Term Extension Act

IRIS 2003-2:1/29

Anna Abrigo

Media Center, New York Law School

On 15 January 2003, in a 7-2 decision in Eldred v. Ashcroft, the U.S. Supreme Court ruled that Congress acted constitutionally in 1998 when it extended copyright protection for most works from 50 years after the author's death to 70 years after the author's death.

Opponents of the extension included on-line publishers and others who sought to break copyright protection and place more materials in the public domain. The extension's detractors maintained that many of the most lucrative U.S. copyrights on works of the imagination are held not by creative people or their descendents, but by giant entertainment conglomerates waging a war to protect their properties. For example, the rights to "Happy Birthday," which was copyrighted in 1934, are currently owned by AOL Time Warner, for which it earns USD 2 million a year in royalties for public usage. "Happy Birthday" was due to come into the public domain after 75 years in 2010 until Congress passed what has been satirically referred to as the Mickey Mouse Copyright Extension Act in 1998. The nickname for the term extension refers to Disney's creation which as a result of the extension is protected until 2024.

Stanford Law Professor Lawrence Lessig argued against the term extension on behalf of Eric Eldred, a publisher of public domain material on-line. Professor Lessig pointed to a possible violation of two parts of the U.S. Constitution. First, the Copyright Clause gives Congress the power to grant copyright protection for "limited times," and second, the First Amendment's guarantee of free expression.

Professor Lessig argued that the extension does not serve the public interest. His view is that "creativity is always about the opportunity to build upon the past, critique it, study it, use it. The longer copyright survives the harder it is to build upon our past. The 1998 extension effectively cuts out 100 years from our culture that's not available to build on."

Justice Ginsburg wrote for the majority, holding that the extension was a rational use of congressional power which will, among other things, bring U.S. copyright law into line with that of the European Union which similarly extends copyright for original works to the life of the author plus 70 years. Dismissing the plaintiff's arguments Justice Ginsburg stated that, "Beneath the façade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy. The wisdom of Congress' action, however, is not within our province to second guess."

Professor Lessig said that he will continue pushing for change, but through building support for new legislation, not through the courts. He states that, "the Court is saying that the framers of the Constitution didn't solve this for us. Instead, we're going to need to use smart legislation and sensible contracts to protect the public domain."