ARTS & FARCES internet

The U.S. Supreme Court has agreed to review the recent extensions Congress has made to copyright protections in the United States.

A lawsuit brought by Eric Eldred, a nonprofit publisher who places works in the public domain on the Internet, argues that Congress overstepped when it passed the Copyright Term Extension Act in 1998 which retroactively extends copyright terms by 20 additional years. The already ridiculous “life +50 years” copyright term was extended to “life +70 years” except in the case of copyrights owned by corporations. In that case, the copyright term was extended to 95 years. All of this is mostly because Mickey Mouse was close to entering the public domain and Disney and the other media conglomerates pulled out the stops to prevent it.

The sole concession made to libraries and others concerned with the fair use imbalance made worse by the new law was to exempt libraries, archives, and nonprofit educational institutions from the last 20 years of the extended protections so long as the work is “not subject to normal commercial exploitation” and the copyright owner doesn’t provide notice that the work is “subject to normal commercial exploitation.” In other words, libraries can use the “life +50 years” copyright term so long as the copyrighted material hasn’t been offered for sale and the copyright owner doesn’t object.

Copyright, as originally conceived, gave authors an initial term of 14 years. Later, the copyright term was modified so that a copyright could be renewed for an additional 14 years if the author was still alive. That copyright term was good enough for the first 100 years of intellectual property in the United States. During the next 100 years, Congress extended the copyright term 11 times.

The Constitution authorizes Congress to give authors an exclusive right to their work for a limited time, but fails to define “limited.” What almost always gets lost in these arguments, however, is that the Constitution’s copyright clause was never intended solely to protect an author’s rights, but also to ensure public access to the work, specifically for the purpose of innovation.

In an unrelated case, the U.S. Court of Appeals for the District of Columbia ordered the Federal Communications Commission (FCC) to review its prohibition of corporations from owning a broadcasting empire that reaches more than 35 percent of the national audience. Viacom, the owner of both CBS and UPN, and News Corp., the owner of Fox, are both above the 35 percent limit. The consensus among media analysts seems to be that the FCC will likely remove the prohibition with the result being further consolidation of television broadcasters.