Extending Copyright Helps Corporations, Not Artists
Later this year, the U.S. Supreme Court will consider whether Congress violated the Constitution when it extended copyright protection four years ago. Individual creators will instinctively side with Congress, believing that control of copyrights should go on as long as possible. They are mistaken. Congress acted unconstitutionally and, by doing so, chose the economic interests of corporations over culture, knowledge and society.
In 1998, Congress extended the term of copyright from life plus 50 years for individual creators to life plus 70 years. In other words, my heirs can control any works I create and own for 70 years after my death. The law, known as the Sonny Bono Copyright Term Extension Act, also added 20 more years of protection to “corporate” copyright.
The main plaintiff in the case, Eric Eldred, runs an Internet library that posts works in the public domain. He contends that Congress’ extension violated the constitutional copyright principle embodied in Article I, Section 8, which reads, “The Congress shall have power to ... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The copyright principle set forth by the framers is one of balance. Society should value the work of authors and inventors, and culture will only thrive when they receive a fair return from owning their work. But this exclusive right should be “limited” in time because the flowering of the arts and sciences, as James Madison believed, could only occur when people have access to information in the public domain. Madison also believed the only way to ensure a free and democratic society is to ensure that no single entity controls information. By allowing individual authors to have the power to license use of their work, whether for a fee or for free, Madison thought the government would find it harder to control information.
Proponents of the Sonny Bono act say that adding 20 years to copyright protection brings U.S. law into compliance with European. It would certainly be a step forward if U.S. policymakers decide international law is something to respect on more than a selective basis. In intellectual property, the U.S. could start by adopting “moral rights,” an important protection enjoyed by individual authors in Europe, which the U.S., because of opposition from the media lobby, refuses to recognize for its individual creators. But, regardless, the Bono Act is unconstitutional.
The most amusing argument for the life-after-death copyright protection is that it inspires new creativity. In other words, before art is created, the creator asks herself: “How much will my heirs earn 70 years after I’m dead from the work I’m about to make?” More likely, she is thinking about the rent, the electric bill, health insurance or her child’s tuition. This is the Shirley MacLaine defense--”I will create after I am dead.”
The fundamental problem is, copyright is no longer an individual right but a corporate piece of property. Corporations are vacuuming up copyrights by either stealing them or forcing creators to give up them up. As we successfully showed in our landmark U.S. Supreme Court case last year, companies have simply stolen hundreds of thousands of articles, photographs and illustrations from their original creators. When they don’t steal, they force freelance writers, illustrators and photographers to sign over their copyrights in perpetuity for no extra pay.
The idea of benefiting an individual creator for a certain time in order to promote more new ideas and new contributions to culture, the arts and sciences has been replaced by the industry’s drive to create a copyright monopoly. Within a few years, media companies will own virtually all copyright, creating a digital iron curtain behind which they can enforce the control and sale of information and content. Indeed, the 1998 legislation was a rich subsidy for the Walt Disney Co., which trembled at the approaching end to its monopoly on the use of Mickey Mouse.
For sure, media companies and their hired guns will trot out individual creators and bemoan their plights. But if they really cared about individual creativity, these companies would cease bludgeoning creators while they are alive. Writers would maintain ownership of their copyright and be paid fairly for electronic use of their material. Record companies would stop cheating musicians out of their money and pay royalties they are withholding from the use of their music on the Internet. Screenwriters and actors would get a bigger cut of new-media revenues.
Individual creators should be wary of supporting the media industry’s thirst for perpetual copyright. Indeed, such support could be harmful to creators’ financial health. The success of song-swap software company Napster showed that tens of millions of people apparently believe all creative work should be free. Apart from the ease of digital downloading, they had no qualms about denying a dollar to large media companies. And people will continue to “steal” copyrighted works until they believe that individual artists, not large corporations, are harmed.
Whatever royalties heirs of dead creators may receive because of perpetual copyright protection, we cannot justify the future harm such protection may inflict on society as a whole. If there is no reasonable time limit on copyright, our heirs will have to pay more for access to information. Public libraries they might like to visit will have less information because they cannot afford the exorbitant fees to obtain it. They may even enjoy fewer works of art because future creators may lack easy access to the art their creations build on.
Rather than carry the water for an industry bent on impoverishing us in this lifetime and reaping the benefits long after we are gone, creators should embrace the principle that human knowledge advances when information is shared, that cultural expression belongs to the public and that the intellectual wealth of a nation, in the form of ideas and information, cannot--and should not--be locked up as the property of a few.
