Sonny Bono Copyright Term Extension Act

Background

Under the Berne Convention for the Protection of Literary and Artistic Works states are required to provide copyright protection for a term of the life of the author plus fifty years. However, the convention permitted parties to provide for a longer term of protection, and between 1993 and 1996, the European Union provided protection for a term of the author's life plus seventy years (see Directive on harmonising the term of copyright protection). The United States, however, only provided for the minimum required by the convention.

As a result, many literary works, movies and fictional characters, which were quite profitable for the copyright owners, were threatened with soon passing into the public domain.
This included several characters owned by the Walt Disney Company; without the act, Mickey Mouse would have entered the public domain between 2000 and 2004 when early animated short films such as Steamboat Willie and Plane Crazy were due to reach the end of the 75-year copyright term. Still, in several countries (e.g. in Russia, where the Berne convention was not retroactive) Mickey Mouse and all other works created before 1970 are in the public domain.

Copyright owners successfully lobbied the U.S. Congress for an extension of copyright, to provide for the same term of protection as exists in Europe.

The act was named after the late Congressman Sonny Bono, who had favored this position as a songwriter and filmmaker even prior to his entry into politics.

Both houses of the United States Congress passed the act as Public Law 105-298 with a voice vote, making it impossible to determine who voted for or against. President Bill Clinton signed the Sonny Bono Copyright Term Extension Act of 1998 on October 21, 1998.

As a consequence of the act, no copyrighted works will enter into public domain due to term expiration in the United States until January 1, 2019, when all works created in 1923 will enter into public domain.

Political Climate

In addition to Disney (whose extensive efforts in lobbying for passage of this lent it its darkly humorous nickname of "The Mickey Mouse Protection Act"), Mary Bono (Sonny Bono's widow and Congressional successor) and the estate of George Gershwin supported the act. Mary Bono, speaking on the floor of the United States House of Representatives, noted that "Sonny wanted the term of copyright protection to last forever", but that since she was "informed by staff that such a change would violate the Constitution", Congress might consider Jack Valenti's proposal of a copyright term of "forever less one day".

Support

Proponents of the Bono Act argue that it is necessary given that life expectancy has risen dramatically since Congress passed the original Copyright Act of 1790, that a difference in copyright terms between the United States and Europe would negatively affect the international operations of the entertainment industry, and that some works would be created under perpetual copyright that would never be created under time-limited copyright.
They also claim that Congress has the power to pass whatever copyright term it wants because the language "To promote the progress of science and useful arts" in the United States Constitution is not a substantive limitation on the powers of Congress, leaving only the restriction that copyrights may only be for a "limited time". Given this interpretation, a million years would still be a valid "limited time" under the letter of the Constitution.

Opposition

Opponents of the Bono Act consider the legislation to be little more than corporate welfare and have tried (but failed thus far) to challenge its constitutionality, claiming that such an act is not "necessary and proper" to accomplishing the Constitution's stated purpose of "promot[ing] the progress of science and useful arts". They argue that most works bring most of the profits during the first few years and are pushed off the market by the publishers thereafter. Thus there is little economic incentive in extending the terms of copyrights except for the few owners of franchises that are wildly successful anyway, such as Disney. They also point out that the Tenth Amendment limits the powers that Congress can gain from a treaty. More directly, they see two successive terms of approximately 20 years each (the Copyright Act of 1976 and the Bono Act) as the beginning of a "slippery slope" toward a perpetual copyright term that nullifies the intended effect and violates the spirit of the "for limited times" language of the United States Constitution, Article I, section 8, clause 8. They question the proponents' life expectancy argument, pointing out that the copyright terms under the 1790 act lasted only twenty-eight years total, that life expectancies have not risen threefold since 1790 (ignoring infant mortality, they have increased barely ten years), and that even though terms of patents have not been extended in parallel, patents adequately reward investment in the field with their mere twenty-year term.

It has been said that extending copyright terms to "harmonize" with those elsewhere can involve a "leapfrogging" effect: two sides repeatedly extend their copyright terms to try and keep up with each other. Opponents also question the proponents' "new works would not be created" argument by pointing out proponents' hidden presumption that the goal is to make the creation of new works possible, whereas the authors of the United States Constitution evidently thought that unnecessary and explicitly restricted the goal to merely "promot[ing] the progress of science and useful arts." In fact, some works created under time-limited copyright would not be created under perpetual copyright because the creator of a distantly derivative work does not have the money to purchase a license from the owner of copyright in the original work, or the individual or privately held owner of copyright in the original work might refuse to license a use at any price (though a refusal to license may trigger a fair use safety valve). One can thus argue that a rich, continually replenished, public domain is necessary for continued artistic creation.

For example, the works of Shakespeare and the Greek myths have been the basis for much of Neil Gaiman's writing, which might well not have been created if they were still under copyright. Recent works that have entered the popular culture, and for which copyright is arguably not appropriate, include the novels that created Frankenstein and Dracula, both originating in the 19th century. Most of the holy writings of major religions are also in the public domain, which allows them to be adapted, translated, paraphrased and otherwise made suitable to modern audiences. If the Roman Catholic Church had a perpetual copyright on the letters of Paul of Tarsus, it could have refused to license them for translation, or for use by other churches. Many of Disney's most famous feature movies have themselves been derivatives of public domain works.

Challenges

Publishers and librarians, among others, brought Eldred v. Ashcroft to obtain an injunction on enforcement of the act. Oral arguments were heard by the U.S. Supreme Court on October 9, 2002, and on January 15, 2003, the court held the CTEA constitutional by a 7-2 decision.
The plaintiffs in the Eldred case have as of 2003 begun to shift their effort toward the U.S. Congress in support of a bill called the Public Domain Enhancement Act that would make the provisions of the Bono Act apply only to copyrights that had been registered with the Library of Congress.

Other groups practice civil disobedience by violating the act in public. However, these challenges have so far met with little success.

See also