Abolish the Digital Millenium Copyright Act
THE UNCONSTITUTIONALITY OF THE COPYRIGHT TERM EXTENSION ACT OF 1998.
by Timothy R. Phillips
SUMMARY
The extension of the renewal term of copyright in pre-1978 published works, from 47 to 67 years, is unconstitutional because (1) it is motivated by a desire to establish perpetual copyright; (2) it provides nothing to authors (most of the authors being dead); (3) it does nothing to encourage the arts (since no future work can qualify for the 67-year renewal term); (4) its effect will be to discourage the arts by preventing the timely entrance of works into the public domain; and (5) it exceeds any reasonable interpretation of the constitutional requirement of "limited times." The Constitution's framers, though suspicious of monopoly, considered copyright to be a bearable monopoly only because the term was to be limited; the expiration of copyright was considered indispensable for copyright's proper functioning. The U.S. Supreme Court for the most part has adhered to the framers' view. The extension of the term of copyright to 95 years, however, overthrows the constitutional foundations of copyright law.
ARGUMENT
1. THE CONSTITUTION'S FRAMERS, FEARING UNCHECKED MONOPOLY POWER, INSISTED THAT PATENTS AND COPYRIGHTS ARE TO BE GRANTED TO ENCOURAGE THE ARTS, AND SHOULD ENDURE ONLY FOR "LIMITED" OR "REASONABLE" TIMES.
Thomas Jefferson, writing to James Madison from France on December 20, 1787, praised the recently drafted Constitution, but thought it would have been better if it had included
...a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury(1)
For Jefferson, then, "restriction against monopolies" was a fundamental right like freedom of religion, speech, and the press. Enlightened economic theory of the time held that monopolies might be useful in some circumstances, but that they tended to outlive their usefulness if they lasted too long.(2)
Monopolies in trade and commodities were probably considered most dangerous. The monopolistic Navigation Acts, for example, were among the grievances listed in the Declaration of Independence(3). But all monopolies were viewed with suspicion. That monopoly-grants to authors and inventors were included among the monopolies which Jefferson wished to restrict is made explicit by his letter of July 31, 1788 to Madison:
I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want retouching. What there are, I think are sufficiently manifested by the general voice from north to south which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies...The saying there shall be no monopolies lessens the incitement to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.(4)
Examination of Adam Smith's thoughts on monopolies(5) shows that others in the late 18th century, though sharing Jefferson's skepticism, were willing to allow limited monopoly-grants to authors and inventors. One such slightly less skeptical individual was James Madison, who in 1788 wrote to Jefferson,
With regard to monopolies, they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it?(6)
Madison repeated these same ideas late in his life, in an essay entitled "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments":
Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases--the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given....Perpetual monopolies of every sort are forbidden not only by the genius of free governments, but by the imperfection of human foresight.(7)
Some Americans shared Jefferson's fears that even monopolies granted to authors and inventors might be abused. During debate in Pennsylvania's ratifying convention, Robert Whitehill noted Congress' power to grant exclusive rights to authors, and warned that Congress might abuse even this limited power:
Though it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press, no doubt; and under licensing the press, they may suppress it.(8)
Others shared Madison's willingness to tolerate carefully limited monopolies to authors and inventors. An author calling himself "Centinel" in a contribution to the Philadelphia Freeman's Journal, remarking on the draft constitution's lack of a bill of rights, expressed both a fear of monopolistic power and a willingness to allow a limited exception to authors and inventors:
There is [in the draft Consititution] no declaration, that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding...that the trial by jury in civil cases as well as criminal, and the modes prescribed by the common law for safety of life in criminal prosecutions shall be held sacred; that the requiring of excessive bail, imposing of excessive fines and cruel and unusual punishments be forbidden; that monopolies in trade or arts, other than to authors of books or inventors of useful arts, for a reasonable time, ought not to be suffered.(9)
Even the skeptical Thomas Jefferson at last resigned himself to giving Congress the power to grant limited monopolies to authors and inventors. But he continued to insist on strict limits. On August 28, 1789 he wrote to Madison about the recently-drafted bill of rights:
I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me:...Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and no other purpose.(10)
A few days later, Jefferson had worked out his own preference for the time-limit on monopoly grants to authors and inventors. He based his proposed term on his principle that "the earth belongs in usufruct to the living", and computed it by means of actuarial tables:
Generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from tables of mortality [and is found to be] 18 years 8 months, or say 19 years as the nearest integral number....The principle, that the earth belongs to the living, and not to the dead, is of very extensive application...Turn this subject in your mind, my dear Sir...and develop it with that perspicuity and cogent logic so peculiarly yours...Establish the principle...in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years.(11)
All these statements share a common fear of abuses of monopoly power. That "power is ever grasping"(12) was a principle well known to the republic's founders. Even the monopolies granted to authors and inventors must be, in Madison's words, "guarded with strictness against abuse."(13) The framers well understood that a government could as easily abridge freedom by the indirect means of granting powerful private monopolies as by more direct exercises of its power. Hence "perpetual monopolies of every sort are forbidden...by the genius of free governments,"(14) and the people were entitled to have their freedom guarded as much from indirect oppression as from direct oppression.
But the Framers had another reason for limiting these grants of monopoly, intimately connected with their reason for allowing them to be granted at all: they believed that works of the mind are inherently shared by the whole people as a matter of right. This view of the work of authors and inventors is implicit in Madison's reference to "a benefit actually gained to the community"(15), and was explicitly stated by Benjamin Franklin in his Autobiography:
Governor Thomas was so pleased with the construction of this stove [i.e. the Franklin stove]...that he offered to give me a patent for the sole vending of them for a term of years; but I declined it from a principle which has ever weighed with me on such occasions, viz.: That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.(16)
A similar principle was expressed in more general terms by Jefferson in his famous letter to Isaac McPherson:
It would be curious...if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, received instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.(17)
The founders' theory of copyright and patent presupposed that works of the mind belong "to the community"; but the same Founders pragmatically supposed that not all authors and inventors would forego reward in Franklin's generous fashion. Some reasonable prospect of reward, in the form of a government grant of limited monopoly privilege, was thought to be fair and useful. But the assumption on all sides was that the grant of privilege should only be for a "limited", "reasonable" time. The process of encouraging the arts through grants of monopoly was not complete upon the work's creation and dissemination; the process was complete only when the public was finally able to use the work freely for any purpose. A perpetual or overly-long monopoly would, it was held, inevitably operate to the community's disadvantage, and would be repugnant to the inherently shared nature of works of the human mind.
2. THE SUPREME COURT'S TEACHING IN A LONG LINE OF PATENT AND COPYRIGHT CASES HOLDS THAT PATENT AND COPYRIGHT LEGISLATION MUST SERVE THE PUBLIC INTEREST FIRST OF ALL.
With only occasional deviations, the Supreme Court of the United States has repeatedly asserted the same philosophy of copyright and patent that was articulated by Franklin, Jefferson, and Madison. The means of copyright, the Court has consistently held, is a temporary monopoly privilege, granted by the public to the author or inventor; the goal of copyright is to benefit the whole society by enlarging the public domain in arts, literature, and inventions, since works of the mind belong "to the community", and each generation builds on the past and each artist and artisan gains benefits from others' contributions. Any Congressional act which creates the means of copyright and patent must be consistent with the restrictions on those means specified in the Constitution, and with the constitutionally specified ends. Hence the the patent-law case of Graham v. John Deere Co. of Kansas City, the Court stated:
At the outset it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress "To promote the progress of...useful Arts, by securing for limited Times to ...Inventors the exclusive Right to their ...Discoveries...." Art. I, #8. The clause is both a grant of power and a limitation....The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.(18)
Similarly in Sony Corp v. Universal City Studios, the Court held that
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.(19)
That copyright and patent are grants of privilege, not the regulation of a pre-existing right, is explicitly stated in Sony and is implicit in the Court's use of the word "monopoly" in John Deere. That the ultimate purpose is to enlarge the public domain is stated negatively in John Deere: "Congress may not authorize the issuance of patents whose effects are...to restrict free access to materials already available."(20) and positively in Sony: "The limited grant...is intended...to allow the public access to the products of...genius after the limited period of exclusive control has expired."(21) In otherwords, according to the court, the purpose of copyright is to enlarge the public domain in expression through the expiration of copyright.
Nor was the Court's view of patent and copyright in Sony and John Deere any new teaching. It is precisely the view of patent and copyright which had been articulated by Jefferson, Madison, and Adam Smith; and it is implicit in Benjamin Franklin's statement(22) that "as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours." The Supreme Court itself early stated these same ideas in the context of patent law:
While one great object [of the patent law] was, by holding out a reasonable reward to inventors and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor.(23)
Congress, then, has considerable discretion in laying down the policy which it thinks will best encourage the arts; but this discretion is not boundless. "The standard expressed in the Constitution...may not be ignored,"(24) either by the courts or by the Congress.
3. THE CONSTITUTIONAL OBJECTIVES OF COPYRIGHT CANNOT BE ACHIEVED WITHOUT THE EXISTENCE OF A PUBLIC DOMAIN IN EXPRESSION.
The Constitution states that Congress has the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their prosepective writings and discoveries..." The Constitutional wording incorporates three presuppositions: (1) that securing exclusive privileges to authors and inventors encourages the arts; (2) that limiting the duration of these priviliges also encourages the arts; and (3) that failing to limit the duration of these priviliges is destructive to the progress of the arts, and harmful to society. As the previsous sections have shown, these three constitutional theses, written by the framers into the constitutional wording, have been implicitly or explicitly asserted over and over in the Supreme Court's copyright and patent jurisprudence.(25) According to both the Constitution and the Supreme Court, they are the three legs on which a system of copyright and patent law, if it would be consititutional, must rest.
Though these constitutional presuppositions may be unprovable, their plausibility can nevertheless be supported by means of examples. Since thesis (1) is widely agreed to, this section will present a plausibility argument in support of thesis (2), the proposition that the existence of the public domain -- and hence the expiration of copyright -- is an encouragement to the arts and an indispensable part of any constitutional system of copyright.
Clear examples of how copyright expiration can contribute to artistic and commercial creativity are found in the field of religious music. For writers of religious music and poetry the public domain provides a source of material. Composers commonly adapt, arrange, or harmonize earlier melodies(26); lyricists create metrical paraphrases of scriptural words(27), or write additional verses to earlier hymns(28). And although talented composers and talented lyricists are fairly common, for both talents to be found in the same individual is somewhat rarer. The public domain provides a reservoir of melodies to which lyricists, even if they do not care to write melodies, can create words freely. Similarly the public domain provides a supply of lyrics freely available to composers. An examination of American church-hymnals published in this century will show many instances of old words fitted to new melodies(29), and new words to old melodies,(30) as well as old words and old melodies newly brought together(31).
Not only writers and composers, but also compilers and publishers of hymnals benefit from the timely expiration of copyright. After expiration of copyright in The Sacred Harp (first edition 1844), at least three different compilers attempted to capture a share of the market for new editions. Ironically J. L. White, the son of Benjamin F. White who was editor of the 1869 edition of The Sacred Harp, seems to have been the least successful of the several competitors in the field.(32)
In addition to encouraging competition among revised editions of The Sacred Harp, public domain status has allowed for the free inclusion into other hymnals of many individual hymns from The Sacred Harp and other pre-Civil War hymnals. The Episcopal Church's Hymnal 1982, for example, contains a number of tunes from pre-Civil War American hymnals;(33) and this early 19th-century American hymn tradition is only one of the hymn traditions from which modern hymnals draw.(34) Incorporating public domain material into a hymnbook allows the book's compilers freedom to maintain and extend their musical traditions entirely on their own terms, striking the balance they think best between established musical tradition and newer trends in musical art. Furthermore, because incorporation of public domain material ordinarily lowers the amount of royalties paid out by the publisher, the use of the public domain assists the hymnbook's publisher in providing a large anthology of music at a reasonable price to the user.
Besides exerting a downward pressure on the price of hymnals, the incorporation of public domain into a religious group's musical life can enrich that life by enhancing the group's musical freedom. Under current law, although some copyrighted music can be performed freely during worship(35), reprinting copyrighted words or music (in the church leaflet or newsletter, for example) ordinarily requires copyright clearance. Nor does the exemption for religious performance extend to the making of derivative versions of copyrighted words or music. Any rearrangement of copyrighted music beyond the choirmaster's ordinary interpretive discretion might be an infringement of copyright. Nor does the exemption for religious performance extend to performance outside of worship; in many other circumstances copyright holders can prevent their music from being performed(36). Public domain music, on the other hand, can be reprinted, performed, recorded, and arranged freely. If enough public domain material is available to it, a congregation's musical life can flourish without need for more than occasional legal and financial transactions.
All these benefits which the public domain provides in the field of religious music are examples of one of the intended outcomes of a system of time-limited copyright: a world of humble, workaday freedom of expression. In such a world any individual creator, even without wealth or powerful connections, can nevertheless find inspiration and material in music and literature out of which to express an original vision(37). An association of people likewise can draw on the public domain to express their common outlook through music, literature, art, and worship. According to the constitution the people have the right to such a world, and to a public domain in artistic expression from which they can create it. Long copyright terms do not assist the realization of this outcome, but rather work against it by delaying the timely entry of works into the public domain, and increasing the chances that the public's freedom of expression can be eroded by interested parties wielding the power of state-created private monopolies.
4. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE IT PROVIDES NO CREDIBLE INCENTIVE "TO AUTHORS" AND DOES NOTHING "TO PROMOTE THE PROGRESS OF SCIENCE AND THE USEFUL ARTS".
Public Law 105-298, the Copyright Term Extension Act of 1998 (CTEA) must be judged to have ignored the constitutional standard which, according to John Deere, copyright and patent laws are required to meet. Indeed, the Act falls short of every constitutional test which can be identified in the wording of the Constitution and in the case law.
To begin with, a law which purports to "promote" the arts must provide credible incentives for artists currently working. Yet the extension of pre-1978 copyrights by definition applies only to works published before January 1, 1978(38). No work not published before January 1, 1978 can ever qualify for the 67-year renewal term. Hence the extended renewal term cannot even be argued to provide an indirect incentive to future creators by virtue of being part of a uniform regulatory system which by its overall structure provides the incentive, since it applies only to an obsolete system which is no current author is able to take advantage of. Nor can the extension of the renewal term credibly be said to provide anything "for authors", since the extra 20 years are added to works already 75 years old, by which time almost all the authors (and their widowed spouses) are dead. Hence the CTEA's extension of pre-1978 copyrights ignores both the Constitutional means of copyright (providing the possibility of a reward for authors) and frustrates the Constitutial goal of enlarging the public domain after a reasonable time.
5. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE THE 95-YEAR OVERALL TERM GRANTED TO PRE-1978 WORKS EXCEEDS ANY REASONABLE DEFINITION OF "LIMITED TIMES."
As noted above,(39) Thomas Jefferson believed that each generation should not be overly burdened with legal and financial obligations inherited from the dead past. For Jefferson, all debts, patents, and copyrights, and even laws, should expire "when a majority of those of full age [when the obligation was assumed] shall be dead." Jefferson computed a term of 19 years on this basis. Computation using Jefferson's formula and modern life tables(40) gives a modern Jeffersonian copyright term of 30 years.
Even if we find grounds to go beyond the neo-Jeffersonian 30-year term, Jefferson's underlying principle--that the past should not lay excessive imposts on the present--retains its appeal as a reasonable principle, and should continue to be applied in the following way: the longer Congress attempts to make the copyright term, the more clearly and explicitly it should be required to justify the term's length. Any attempt to extend the term beyond, say, the 42-year term which worked successfully for nearly 80 years (1831 to 1909), should be subjected to strict consitutional scrutiny, and should be held constitutional only if it clearly provides "for authors", clearly encourages the arts, and can clearly be considered a "limited" time. The 95 year term provided to pre-1978 published works by the CTEA fails on all of these grounds. In particular, it exceeds any term which can be considered, in Jefferson's words "clearly and without the aid of sophisms"(41), to be a "limited" time.
Rational upper bounds on the term of copyright can be computed in a number of ways. Thomas Jefferson's formula, already mentioned, gives a term of 30 years. If instead of setting the term to the half-life of the population age 20 and over, we allow for the death of three quarters of those 20 years old and older, we compute a term of 45-50 years. If we set the term to the number of years it takes ninety percent of those of age 20 and over to die, the term still comes to less than 60 years.
Also constraining the term of copyright are the physical limitations of the media in which works are fixed. Books, for example, deteriorate over time. A book at the end of 75 years is likely to be scarce and delicate; a book at the end of 95 years even more so. This can make copies of the work far less accessible to many members of the public than they would otherwise be(42). The term of copyright should not be longer than the first edition of a hardback trade book can undergo reasonable use in a public library while remaining in reasonably good condition. A term of seventy-five years is already longer than this for many printed books. The public domain cannot truly be called public if many works, when they finally enter it, are available only in scarce, delicate copies.
Yet another way of estimating a fair term is by comparing it to the time within which a prudent investor can foresee a reasonable return. This line of analysis was considered by Professor Chaffee, in his discussion of copyright assignments under the 1909 copyright law:
A businessman remarked to J. M. Maguire that for him "fiften years was eternity." The publisher must have always shaped his lump-sum offer according to his expectation of sales within the first few years of the copyright. That is when he makes his killing. This is probably truer today than ever, because of the rapid waning of most books and songs.(43)
Since the decision (by author or publisher) to invest in a copyright is implicitly a commercial and financial computation, an upper bound for the term of copyright might even be estimated by a comparison to another predictive financial computation, namely the present value of a term annuity. If the initial present value of an annuity of M years at an interest rate of R be designated V(M,R), then a reasonable upper bound for the term of copyright might be estimated by N where N is the term at which the fractional change in the initial present value of the annuity due to an extension of one year, V(N+1,R)/V(N,R) - 1, drops below some specified tolerance(44). If R is five percent and the cutoff value of the fractional change in the initial present value is one percent, one computes a term N of thirty-seven years. For an interest rate of 10% and a cutoff tolerance of one percent, the formula gives a term of 25 years. Setting the cutoff tolerance to one tenth of one percent (one part per thousand) gives a term of 80 years at a prevailing interest rate of 5%, and 48 years if the interest rate is 10%. These figures are upper bounds to the copyright term since a copyright is a more speculative investement; its value after many years must be discounted more quickly.
The widespread practice of setting the term of authors' copyrights to the life of the author plus a certain extra term has both advantages and disadvantages. Among the advantages is that if the author dies prematurely, the copyrights provide a legacy to a widowed spouse and surviving minor children, as well as providing the author's heirs a margin of time to publish and profit from any posthumous works. But a term of about 30 years after the author's death is the most that can be justified by these considerations.
Whatever method is used to compute the term of copyright, the term must qualify, "clearly and without the aid of sophisms"(45), as a "limited"(46) time. It must, as the Supreme Court noted concerning the term of patent in Pennock and Sellers v. Dialogue, place the monopolized item in the public domain "at as early a period as possible, having due regard" for the author.(47) The term of copyright should be long enough to give the author a chance to acquire reasonable compensation, and no longer. None of the computations of this term considered in this section has produced a result greater than 80 years, and most of the computed terms were shorter than this. These computations combined with adherence to the tradition of setting the term of copyright to multiples of 7 years (the traditional term of an apprenticeship) gives a term of 77 years from the time a work becomes part of the public record as the outermost limit to the term of copyright that can be justified by any of the means considered above. The intentions of the framers, and the traditions of American copyright, would if anything favor a term shorter than this. Certainly the seventy-five year term provided to pre-1978 works by the Copyright Act of 1976 is more than adequate. It generously gives authors not only a chance to gain adequate compensation, but time enough for several second chances. The twenty-year extension, to 95 years, is not only unneccesary, but counterproductive. This is because copyright expiration after a reasonable time is required for copyright's proper functioning. It is both through the existence of copyrights and through their expiration that the copyright law promotes the arts and sciences.
6. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE IT IS MOTIVATED BY A DESIRE TO ESTABLISH PERPETUAL COPYRIGHT.
That the CTEA is intended as a step toward perpetual copyright is clear from statements of the Act's supporters. On the day the Act passed the House of Representatives, Congresswoman Mary Bono remarked,
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.(48)
The same desire for perpetual copyright is implicit in the following words of from the Judiciary Committee report on S. 483:
[I]ntellectual property is the only form of property whose ownership rights are limited to a period of years.(49)
This statement considers the expiration of a statutory grant of monopoly to be equivalent to a "taking" of property which otherwise could be privately owned in perpetuity. The authors of this statement apparently see the expiration of copyrights and patents as some sort of anomaly. This aspect of the Act's supporter's philosophy is further illuminated by Mary Bono's remarks:
[The late Congressman Sonny Bono] truly understood the goals of Framers of the Constitution: that by maximizing the incentives for original creation, we help expand the public store-house of art, films, music, books and now, also, software.(50)
Congresswoman Bono's statement is self-contradictory. The framers' intent was indeed to "expand the public store-house of art" -- that is, the public domain.(51) This is demonstrated by the framers' references to works of the mind as inherently shared; to be free to all was, for the Framers, was the natural condition of writings and discoveries(52). However, the incentives to production and dissemination were not to be maximized, but to be set to a reasonable level to provide "sufficient recompense and encouragement.(53)" The grant of monopoly was then intended to expire after a reasonable time since "perpetual monopolies of every sort are forbidden not only by the genius of free governments, but by the imperfection of human foresight.(54)" The framers assumed, as did Adam Smith(55), that all monopolies eventually outlive their usefulness and became destructive to the very ends they originally had been granted to encourage.
Mary Bono's idea that more copyright is always better copyright finds its source, not in the words of the Framers, but in the school of thought which Professor Netanel has called "neoclassicist":
This "neoclassicist" approach posits that, far from simply inducing the creation and dissemination of new expression, copyright serves as a vehicle for directing investment in existing works. Neoclassicists would accordingly treat literary and artistic works as "vendible commodities," best made subject to broad proprietary rights that extend to every conceivable valued use. In this manner, neoclassicists contend, market pricing can direct resource allocation for the marketing and development of existing creative expression in an optimally efficient manner.(56)
This approach has little room for the expiration of copyright. A strict follower of what Professor Netanel calls the neoclassicist philosophy would allow for copyright expiration when costs of tracing a rightsholder over many years became high, but would see no need for it otherwise(57). The anti-constitutional nature of this philosophy can be seen by comparing it to the attitudes of the framers, for whom the best mechanism for allocation of investment resources in mature writings and inventions was the public domain--a free market, without monopolistic distortions.
7. THE EXTENSION OF COPYRIGHT TERM PASSED BY CONGRESS IN 1998 IS MOTIVATED BY AN EXTREME VERSION OF THE ANALOGY OF WORKS OF AUTHORSHIP TO "PRIVATE PROPERTY". SUCH A VIEW OF WORKS OF AUTHORSHIP IS INCONSISTENT WITH U.S. COPYRIGHT TRADITION, AND IS IN FACT ANTI-CONSTITUTIONAL.
The concept of a work of authorship as an author's "property" has repeatedly been invoked by the copyright extension's supporters. Though this is a venerable analogy in copyright law, it is no more than an analogy and, in fact, an imperfect one. Indeed, Justice Holmes once observed that to consider a work of authorship as a piece of "property" is to stretch the meaning of the word almost to the breaking point:
In copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but it is in vacuo, so to speak. It restrains the spontaneity of men where, but for it, there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right...It is a right which could not be recognized or endured for more than a limited time...(58)
In the statements of the CTEA's supporters, Justice Holmes's reservations and qualifications are nowhere to be found. The Senate Judiciary Committee report, quoted above, notes that copyrights expire(59). But the committee majority seem to see this fact as some sort of sad mistake. The copyright holder's "property" is not, as in Justice Holmes's description, something which the public must "endure", but something which the rightsholder must "give up." This view of copyright, according to which either the work or the copyright (the distinction is not always clearly made) should be perpetually the author's "property" is at the center of the motivation for the CTEA. The evidence for this is found in statements like these in support of the Act:
The copyright law was considered up to now as forbidding pirates to steal an author's property before a maximum of fifty-six years after its registration. After this time every pirate could use it freely, making great profits without letting the real owner 'participate' in the profits of his property.(60)
The notion of public domain is a troublesome one for creators, because we are the only property owners who are required to give up our property after a certain time.(61)
I wish, in a way, the public domain didn't exist at all.(62)
I own it; it's the product of my mind. Why should I be able to pass my house or whatever jewelry I might have on to my children and grandchildren and not the songs that I create -- not that property ?(63)
If this extremist view of copyright is allowed to dominate the presuppositions of all new legislation, the true worth of the public domain will always be slighted. It is vital that the courts should remind Congress in no uncertain terms of the Constitutional limits on its power to grant copyrights. One way the courts can do this is by explicitly repudiating the CTEA, and the extreme "neoclassicist" or "property" view of copyright that underlies it, as repugnant to the Constitution. In its place, the court should clearly articulate a Constitutional philosophy of copyright which places the rights of the public to a public domain in literary expression on an equal footing with the right of the author to a reasonable chance of compensation.
8. THE COPYRIGHT EXTENSION OF 1831, IN WHICH THE SUPREME COURT ACQUIESCED, CAN BE DISTINGUISHED FROM THE EXTENSIONS OF 1976 AND 1998 BECAUSE THE EXTENSION OF 1831 WAS FAR MORE LIKELY TO HAVE REWARDED LIVING AUTHORS. THE SUPREME COURT'S ACQUIESCENCE IN THE CONGRESSIONAL ACT OF 21 JANUARY 1808, "AN ACT FOR THE RELIEF OF OLIVER EVANS" CAN SIMILARLY BE DISTINGUISHED BECAUSE IT WAS A GRANT TO A LIVING INVENTOR. THE EXTENSION OF 1998 DIFFERS FROM ALL PREVIOUS EXTENSIONS ALSO IN BEING LONGER, IN EXTENDING THE TERM OF COPYRIGHT TO UNPRECEDENTED LENGTH, AND IN STOPPING ENTRY OF WORKS INTO THE PUBLIC DOMAIN ALMOST COMPLETELY FOR A TIME.
The U.S. Supreme Court has never explicitly ruled on whether Congress has the power to extend copyrights already issued. In an 1871 case, Paige v. Banks,(64) the Court accepted the validity of the 1831 copyright statute without comment; neither of the parties brought the question of the constitutionality of the 1831 Act before the court in that case. Hence Paige v. Banks cannot be considered legal precedent establishing an open-ended Congressional power to grant copyright extensions. The Court's acquiescence in the extension of 1831 in that case is further distinguished by the considerable difference between an extension by 14 years of an initial term of 14 years, creating a maximum possible copyright term of 42 years, and an extension by 20 years of a renewal term of 47 years creating a maximum possible copyright term of 95 years. Besides the difference in the overall term, the extension of the initial term in 1831 was far more likely to have rewarded living authors. In the present case, most of the authors are dead; the extension of 1998 does nothing for them.
The Supreme Court's acceptance, in the case of Evans v. Jordan,(65) that Congress may extend patents previously granted, must be distinguished in the same way. The patent extension at bar in that case, "An Act for the relief of Oliver Evans", was granted in 1808 to a living inventor(66). The CTEA of 1998, in contrast, rewards not living authors, but remote assignees.
In 1836 Congress passed a law allowing for the extension of patents for an additional seven years under certain circumstances. In 1846 the Supreme Court held, in the case of Wilson v. Rousseau,(66A) that this renewal term could be granted to a patentee's executor if the patentee had died. This ruling, however, cannot be taken to establish the doctrine that congress can extend copyrights to any term whatsoever. The court's ruling in Wilson v. Rousseau is of doubtful accuracy to begin with; the wording of the statute of 1836 provided only for renewals to the inventors themselves (66B). But even apart from that concern, the case must be seen in light of the strict renewal provisions of the 1836 statute. Patent renewals were not granted merely upon application. The inventor had to show that he had, through no fault of his own, failed to receive sufficient recompense from the patented invention. On this showing, the patent would be renewed for another seven years, for an overall patent term of 21 years. It simply does not follow that, because Congress may extend patents to twenty-one years for inventors who have not received "reasonable remuneration" (66C) from their inventions, it may constitutionally extend the term of copyright to ninety-five years for the benefit of heirs who have already received fortunes from their ancestor's copyrights.
Lower federal courts have been somewhat more expansive in their view of Congress' power to grant and extend patents. In the case of Evans v. Eaton, the Circuit Court of the District of Pennsylvania asserted that
It is not true that the grant of an exclusive privilege to an invention for a limited time, implies a binding and irrevocable contract with the people, that at the expiration of the period the invention shall become their property. The state has a perfect right to renew the grant at the end of the period or to refuse to do so; and in the latter case, it is a matter of course that the invention may be used by any person who chooses to do so. In like manner may congress renew a patent right or decline to do so. But even if the premises were true, still there is nothing in the constitution of the United States which forbids congress to pass laws violating the obligation of contracts, although such a power is denied to the states individually.(67)
Judge Story, in his opinion in Blanchard v. Sprague, similarly held that
It is suggested, that the grant of the patent by the act of congress of 1839...is not constitutional; for it operates retrospectively to give a patent for an invention, which, though made by the patentee, was in public use and enjoyed by the community at the time of the passage of the act. But this objection is fairly put at rest by the decision of the supreme court in the case of the patent of Oliver Evans, Evans v. Eaton, 16 U.S. 454. For myself, I never have entertained any doubt of the constitutional authority of congress to make such a grant. The power is general, to grant to inventors; and it rests in the sound discretion of congress to say, when and for what length of time and under what circumstances the patent for an invention shall be granted. There is no restriction, which limits the power of congress to enact, where the invention has not been known or used by the public. All that is required is that the patentee should be the inventor.(68)
Mr. Story's reading of Evans v. Eaton seems to read too much into the opinion. In that case the judgement of the circuit court was reversed and the case remanded on the grounds that the jury had been improperly instructed.(69) The validity of "An Act for the Relief of Oliver Evans" was accepted implicitly, as in Evans v. Jordan, but not addressed explicitly. Furthermore, Mr. Story's views of patent and copyright tended toward the anti-constitutional(70), and so must be used with caution. But even apart from these considerations, the same observation can be made concerning these lower-court cases that was made concerning Evans v. Jordan: The extended privileges were granted to still-living inventors. The CTEA, by contrast, grants extended privileges to the assignees of long-dead authors.
Nor can the Federal District Court's holding in Sociedad de Autores Españoles v. Americo Marin(71) that Spanish copyrights (which at that time had a maximum term of life plus eighty years) were valid in Puerto Rico under the Treaty of Paris, be cited in support of the CTEA. The District Court's ruling in that case was extremely tentative, and the question was rendered moot by passage of the Copyright Act of 1909.
The copyright extension of 1998 is distinguishable from all previous extensions by the length of the extension, by the resulting overall term, and by its effect on the entry of works into the public domain. Since 1790, the statutory term of copyright has been extended 3 times(72). The longest extension to the statutory term prior to 1998 was by 19 years in 1976, which extended all renewed pre-1978 copyrights to a total term of 75 years. Unrenewed copyrights, however, continued to expire after 28 years, while works intentionally published without notice of copyright entered the public domain immediately. The entry of works into the public domain was attenuated, but not completely stopped. The situation in 1998 was quite different from that prevailing in 1978. By 1998, the requirement of renewal and the requirement of notice had both been abolished. Copyright in no published works whatever will expire for fully 20 years from the signing of the 1998 act, and until an unprecedented ninety-five years from publication has elapsed. The generation now entering its 40s will be grandparents before the works published in their grandparents' youth will enter the public domain--a copyright term of almost four full generations.
9. THE COPYRIGHT TERM EXTENSION ACT OF 1998 IS NOT ONLY BAD POLICY, IT IS ANTI-CONSTITUTIONAL.
For all the reasons enumerated, the Copyright Term Extension Act must be deemed unconstitutional. Rather than encouraging the arts, it frustrates the development on the arts by preventing the turnover of published works into the public domain for a generation--a turnover process which is vital to the maintenance of creative freedom. Rather than limiting the term of copyright, it extends it to absurd, unprecedented length. Rather than providing for authors, it provides only for authors' remote assignees.
FOOTNOTES
1. Thomas Jefferson, Letter to James Madison, December 20, 1787, in Julian P. Boyd, Ed., 12 The Papers of Thomas Jefferson, Princeton University Press, 1956, p. 439, 440.
2. "When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine...By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade they could buy much cheaper; and secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on. It is for the most worthless of all purposes, too, that they are taxed in this manner. It is merely to enable the company to support the negligence, profusion, and malversation of their own servants." Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book 5, Chapter 1, Part 3, Article 1. Britannica Edition, Chicago, 1952, pp. 329-330. See also Adam Smith, Lectures on Jurisprudence, Report of 1762-3, ii.27-37; Report dated 1766, 174-175, in R.l. Meek, D. D. Raphael, and P.G. Stein, Adam Smith: Lectures on Jurispurudence, Oxford University Press, 1978 (1982 reprint), pp. 81-85, 471-472.
3. "He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation...for cutting off our trade with all parts of the world." The Unanimous Declaration of the Thirteen United States of America, Continental Congress, Philadelphia, July 4, 1776. In Merril D. Peterson, Ed., The Portable Thomas Jefferson, Penguin, New York, 1985, p.237.
4. Thomas Jefferson, Letter to James Madison, in Julian P. Boyd, Ed., 13 The Papers of Thomas Jefferson, Princeton University Press, 1956, p. 440, 442-3.
5. Supra, note 2.
6. James Madison, Letter to Thomas Jefferson, October 17, 1788, in Galliard Hunt, Ed., 5 The Writings of James Madison, G.P. Putnam's Sons, 1904, p. 269, 274-275.
7. James Madison, "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments", published posthumously in Galliard Hunt, Ed., "Aspects of Monopoly One Hundred Years Ago, Harper's Magazine, Vol 128, Number 766, March, 1914, p. 489, 490.
8. Robert Whitehill, speech in the Pennsylvania constitutional ratifying convention, December 1, 1787, quoted in Merrill Jensen, Ed., 2 The Documentary History of the Ratification of the Constitution. Ratification of the Constitution by the States. Pennsylvania. State Historical Society of Wisconsin, Madison, 1976, p. 454.
9. Centinel (pseud.), "To the People of Pennsylvania", Philadelpha Freeman's Journal, October 24, 1787, in John P. Kaminski and Gaspare J. Saladino, Eds., 13 The Documentary History of the Ratification of the Constitution, State Historical Society of Wisconsin, 1981, p 457, 466.
10. Thomas Jefferson, Letter to James Madison, August 28, 1789, in Andrew A. Lipscomb, Ed., 7 The Writings of Thomas Jefferson, Thomas Jefferson Memorial Association of the United States, 1903, p 444, 450-451.
11. Thomas Jefferson, Letter to James Madison, September 6, 1789, in Merrill D. Peterson, Ed., The Portable Thomas Jefferson, Penguin Books, 1977, p. 444, 447,450,451.
12. Abigail Adams, letter to John Adams, November 27, 1775, in Letters of Mrs. Adams, The Wife of John Adams, with an Introductory Memoir by her Grandson, Charles Francis Adams, Fourth Edition, Wilkins, Carter & Company, Boston, 1848, p.63.
13. James Madison, "Monopolies Perpetuities, Corporations, Ecclesiastical Endowments", supra note 7, at 490.
14. Id.
15. Id.
16. Benjamin Franklin, Autobiography, in John Bigelow, Ed., 1 The Works of Benjamin Franklin, G. P. Putnam's Sons, 1904, pp. 237-238.
17. Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813, in Andrew A. Lipscomb, Ed., 13 The Writings of Thomas Jefferson, The Thomas Jefferson Memorial Association, 1903, p 326, 333-334.
18. Graham v. John Deere Co. of Kansas City 383 U.S. 1, 5-6 (Sup. Ct., 1966). Footnote omitted.
19. Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984).
20. Graham v. John Deere Co. of Kansas City, supra note 18, at 6 (Emphasis added.)
21. Sony Corp. v. Universal City Studios, supra note 19, at 429 (Emphasis added.)
22. Supra, note 16.
23. Pennock and Sellers v. Dialogue, 27 U.S. 11, 18 (1829) (Emphasis added.)
24. Graham v. John Deere Co. of Kansas City, supra note 18, at 6. Italics in original.
25. Pennock and Sellers v. Dialogue, supra note 23; Graham v. John Deere Co. of Kansas City, supra note 18; Sony Corp v. Universal City Studios, supra note 19. Lower court judges less consistently uphold the constitutional principles of copyright--see below, notes 65-67 and accompanying text--but sometimes they "get it". One circuit judge, for example, noted that "Creativity is impossible without a rich public domain." White v. Samsung Electronics America, 26 USPQ.2d 1362, 1364 (9th Cir. 1993)(Kozinski, J., dissenting from order rejection the suggestion for rehearing en banc).
26. J.S. Bach (1685-1750) was a frequent arranger of older sacred melodies. Bach's arrangements of the melody Ein' feste Burg by Martin Luther (1483-1546); of Herzlich tut mich verlangen, by Hans Leo Hassler (1564-1612); and of Wie schön leuchtet, attributed to Philipp Nicolai (1556-1608) are well-known. Popular songwriter Paul Simon used Bach's version of Herzlich tut mich verlangen in one of his songs. Humorist John Forster used the same melody in "Fusion," his satirical comment on Paul Simon's habits of self-promotion.
27. "From all that dwell below the skies" (based on Psalm 117) by Isaac Watts (1674-1748), and "O praise ye the Lord!" (based on Psalm 148) by Henry Williams Baker (1821-1877) are only two of many examples.
28. Under Hymn number eighty-one in the Episcopal Church's Hymnal 1982 is the following note: "Words: St. 1-2, German, 15th cent.; tr. Theodore Baker (1851-1934). st. 3, Friedrich Layritz (1808-1859); tr. Harriet Reynolds Krauth Spaeth (1845-1925); ver. Hymnal 1940." This means that one named author, two named translators, at least one anonymous author, and one church committee, their generations spanning a period of some five hundred years from first to last, all had a hand in putting the words of the hymn into their present form.
29. The words "Come my Way, my Truth, my Life," by George Herbert (1593-1633), are set in the Hymnal 1982 to The Call, an adaptation by E. Harold Geer of a melody by Ralph Vaughan Williams (1872-1958), which was written for these words as part of a suite entitled "Five Mystical Songs" (1911). Private communication from Professor Ray Glover of Virginia Theological Seminary.
30. The words "Turn back, O man, forswear thy foolish ways" by Clifford Bax (1886-1962) were written for the 16th-century hymn-tune Old 124th. These words by Bax were set to still another melody by Stephen Schwartz for the musical play Godspell.
31. The hymn-lyric "O Little Town of Bethlehem" was written in 1868 by Phillips Brooks (1835-1893), rector of Holy Trinity Church, Philadelphia, and was early set to the melody St. Louis composed by Lewis H. Redner (1831-1908), who was the organist at the same church. The words are still widely sung to this melody. In recent decades, however, the words have also become associated with a 19th-century English folk tune, The Plowboy's Dream or Forest Green, collected early in this century by composer and folksong collector Ralph Vaughan Williams (1872-1958). See The Hymnal 1940 Companion, Church Pension Fund, New York, 1949, p. 17, 389, 539, and Journal of the Folk Song Society #8, 1906, p. 203.
32. Gavin James Campbell, "'Old Can Be Used Instead of New:' Shape-Note Singing and the Crisis of Modernity in the New South, 1880-1920", Journal of American Folklore 110(436),169-188(1997). Revisions of The Sacred Harp were produced by William M. Cooper (The Sacred Harp, Revised and Improved, 1902), J. L. White (The New Sacred Harp, 1884, co-edited by White's brother, B. F. White, Jr; Fifth Edition of the Sacred Harp, 1910; and Fourth Edition of the Sacred Harp, with Supplement, 1911), and Joseph James, (The Original Sacred Harp, 1911.) For a report of copyright litigation involving two of these editors, see Cooper v. James, 213 F. 871 (N. D. Georgia, 1914).
33. The Hymnal 1982 has, for example, the tunes Birmingham and Nettleton from Wyeth's Repository of Sacred Music, part Second (1813); Morning Song and Tender Thought from The Kentucky Harmony (1816); Detroit, from the Supplement to the Kentucky Harmony (1820); Light and Pleading Savior from The Christian Lyre (1830); New Britain ("Amazing Grace"), from The Virginia Harmony (1831); Charlestown, Star in the East, Holy Manna, Kedron, Middlebury, Resignation, Restoration, Vernon, and Wondrous Love, all of which appeared in the at least one edition of The Southern Harmony and Musical Companion (first edition 1835; new edition 1847; revised edition 1854); and Foundation, from The Sacred Harp (1844).
34. Others are the medieval tradition, the renaissance/baroque tradition, the classical/romantic tradition, the Welsh Methodist tradition, the Jewish tradition, and the folk tradition. If music drawn from these traditions were added to the list given above, it would be much larger. It would be larger still if it included the reprinting in the hymnal of public-domain words as well as music.
35. 17 U.S.C 110(3).
36. If the church youth-group gives a concert or talent show to raise funds for its ski trip, for example, the charitable-purposes exemption of 17 U.S.C. 110(4)A would not apply.
37. The author, due to space constraints, remarks only in passing that the musical art cannot even be learned without some form of copying of music of past generations.
38. The copyrights extended by the CTEA can be divided into five classes: (1) Extension of the renewal term of copyright in pre-1978 works already in their renewal term; (2) extension of the renewal term of pre-1978 works still in their initial copyright term; (2) extension of the term of copyright in post-1978 works by now-dead authors from 50 to 70 years after the author's death; (4) extension of the term of copyright in post-1978 words by still-living authors from 50 to 70 years after the date of the author's death; and (5) extension of copyright in unpublished pre-1978 works to at least January 1, 2047 if they are published before January 1, 2003. This essay concentrates on the most objectionable feature of the CTEA, the extension of copyright in pre-1978 published works. The author believes, however, that some of the objections brought here against class (1) and class (2) extensions apply as well to the CTEA's extension of the term of all coprights, including future copyrights.
39. Supra, note 11.
40. Vital Statistics of the United States 1992, Volume 2-Mortality, Public Health Service, Hyattsville Maryland, 1996, Part A, Section 6, Page 7, Table 6-1.
41. Supra, Note 1.
42. A delicate book kept in one of a university library's special collections, for example, is likely to be unavailable to many, if the special collection is accessible only from 9AM to 5PM, Monday through Friday when most folk must be at work. Even someone who can gain access to the work may find that the library does not permit the work to be photocopied. The book might still be copied by hand, but this is a much more difficult and error-prone process.
43. Zechariah Chaffee, Jr., "Reflections on the Law of Copyright:II", 45 Columbia Law Review (1945), 719, 721.
44. Because the cutoff criterion is expressed as a fraction, the result is independent of the value of the annuity's annual payment.
45. Thomas Jefferson, Letter to Madison, December 20, 1787, supra note 1.
46. U.S. Const., Art. I, Sec. 8, cl. 8.
47. Pennock and Sellers v. Dialogue, supra, Note 23, at 18, emphasis added.
48. Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9952.
49. Senate Report 104-315, Copyright Term Extension Act of 1996, 104th Congress, 2nd Session, July 10, 1996 (hereafter CTEA: Sen. Rept. 104-315, 1996), p. 11. Even if the facile presupposition that so-called "intellectual property" is strictly analagous to other "form[s] of property" were accepted, this statement would still be in error. Many things which are bought, sold, and exchanged as "property" can be time-limited, such as bonds, mortgages, pensions, annuities, purchasing options, insurance policies, and livestock. A homeowner who pays off a mortgage is not said to "take" anything from the bank, nor if the government pays a bond at maturity is it said to "take" anything from the bondholder. Even less should the expiration of a government grant of monopoly be considered a "taking". Yet this view of copyright expiration as a "taking" pervades the statement of the committee majority in the report of July 10, 1996.
50. Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9951-H9952.
51. Congresswoman Bono apparently thinks "the public store-house of art" can consist entirely of copyrighted works. If her words are interpreted in this way, the internal inconsistency in her words is removed, but the inconsistency between her words and the traditions of American copyright is exacerbated. According to the American tradition, the public store-house of the arts must truly be free to the public: "the limited grant...is intended to allow the public access to the products of [authors'] genius after the limited period of exclusive control has expired." Sony v Universal City Studios, 464 U.S. 417, 429, supra note 19 (emphasis added).
52. Benjamin Franklin, Autobiography, supra note 16, at 238; Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813, supra note 17, at 334; Madison, "Monopolies", supra note 7, at 490.
53. Madison, "Monopolies", supra note 7, at 490.
54. Id.
55. Adam Smith, Wealth of Nations, Book 5, Chapter 1, Part 3, Article 1, supra note 2.
56. Neil Weinstock Netanel, "Copyright and a Democratic Civil Society", 106 Yale L.J., 283, 286-287 (1996).
57. Id., at 368.
58. White-Smith Music Publishing Co. v. Apollo Co. 209 U.S. 1., 19, (1908).
59. Supra, note 49.
60. United States Senate Committee on the Judiciary, Report 104-817. Hearing on S. 483, September 20, 1995 (hereafter Hearing on S. 483), p. 68. Passage from Arnold Schoenberg's Style and Idea submitted as part of the testimony of E. R. Schoenberg.
61. Id. at 123. Testimony of Songwriter Patrick Alger.
62. Remark by Mary Rodgers, president of the lobbying organization AMSONG, quoted in Robert Kolker, "Theaters on Alert as Congress Looks at Copyright Law," 36 Back Stage, Number 9, March 3, 1995, p. 3.
63. Remark by Marylin Bergmann, president of ACSAP, quoted in Madeline Brand, "Report on Copyright Term Extension," Morning Edition, National Public Radio, June 8, 1998.
64. 80 U.S. 608 (1871).
65. 13 U.S. 199 (1815).
66. See also Wilson v. Rousseau, 45 U.S. 646, at 702 (1846): "Congress, in ten or twelve instances, have renewed patents to the inventors. (Woodbury, J., dissenting. Emphasis added.)
66A. 45 U.S. 646 (1846)
66B. Id., at 673.
66C. Id.
67. Evans v. Eaton, 8 Fed. Cas.846, 848-849. (C.C. D. Pa., 1816). Compare and contrast the the following quote from an opinion of the Supreme Court which implies that the analogy of the grant of monopoly privilege to a contract to which the public is a party is to some extent reasonable: "...[I]n every grant of the limited [patent] monopoly two interests are involved, that of the public, who are the grantors, and that of the patentee. There are thus two parties to every application for a patent, and more, when, as in case of interfering claims or patents, other private interests compete for preference." Butterworth v. United States ex. rel. Hoe and others, 112 U.S. 50 (1884).
68. Blanchard v. Sprague, 3 Fed. Cas. 648, 650. (C.C. D. Mass., 1839).
69. Evans v. Eaton, 16 U.S. 454, 518 (1818).
70. "It is, indeed, but a poor reward, to secure to authors and inventors, for a limited period only, an exclusive title to that, which is, in the noblest sense, their own property; and to require it ever afterwards to be dedicated to the public." Joseph Story, A Familiar Exposition of the Constitution of the United States, American Book Company, New York, 1840. Story's philosophy is utterly incompatible with the views of the framers. See also L. Ray Patterson, "The Worst Intellectual Property Opinion Ever Written: Folsom v. Marsh and its Legacy, 5 J. Intellectual Prop. Law 431-452 (1998).
71. Sociedad de Autores Españoles v. Americo Marin, 4 Porto Rico Federal Reports 288 (D.P.R. Sept. 18, 1908.)
72. The term of U.S. copyright was extended in 1831 (by 14 years), 1909 (by 14 years), 1962 (by 3 years), 1965 (by 2 years), 1967 (by 1 year), 1968 (by 1 year), 1969 (by 1 year) 1970 (by 1 year), 1971 (by 1 year), 1972 (by 2 years), 1974 (by 2 years), 1976 (incorporated the extensions of 1962 through 1974 for all copyrights and added an additional 5 years, making an overall 19 year extension the result of the extensions of 1962 through 1976), and 1998 (by 20 years).
by Timothy R. Phillips
SUMMARY
The extension of the renewal term of copyright in pre-1978 published works, from 47 to 67 years, is unconstitutional because (1) it is motivated by a desire to establish perpetual copyright; (2) it provides nothing to authors (most of the authors being dead); (3) it does nothing to encourage the arts (since no future work can qualify for the 67-year renewal term); (4) its effect will be to discourage the arts by preventing the timely entrance of works into the public domain; and (5) it exceeds any reasonable interpretation of the constitutional requirement of "limited times." The Constitution's framers, though suspicious of monopoly, considered copyright to be a bearable monopoly only because the term was to be limited; the expiration of copyright was considered indispensable for copyright's proper functioning. The U.S. Supreme Court for the most part has adhered to the framers' view. The extension of the term of copyright to 95 years, however, overthrows the constitutional foundations of copyright law.
ARGUMENT
1. THE CONSTITUTION'S FRAMERS, FEARING UNCHECKED MONOPOLY POWER, INSISTED THAT PATENTS AND COPYRIGHTS ARE TO BE GRANTED TO ENCOURAGE THE ARTS, AND SHOULD ENDURE ONLY FOR "LIMITED" OR "REASONABLE" TIMES.
Thomas Jefferson, writing to James Madison from France on December 20, 1787, praised the recently drafted Constitution, but thought it would have been better if it had included
...a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury(1)
For Jefferson, then, "restriction against monopolies" was a fundamental right like freedom of religion, speech, and the press. Enlightened economic theory of the time held that monopolies might be useful in some circumstances, but that they tended to outlive their usefulness if they lasted too long.(2)
Monopolies in trade and commodities were probably considered most dangerous. The monopolistic Navigation Acts, for example, were among the grievances listed in the Declaration of Independence(3). But all monopolies were viewed with suspicion. That monopoly-grants to authors and inventors were included among the monopolies which Jefferson wished to restrict is made explicit by his letter of July 31, 1788 to Madison:
I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want retouching. What there are, I think are sufficiently manifested by the general voice from north to south which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies...The saying there shall be no monopolies lessens the incitement to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.(4)
Examination of Adam Smith's thoughts on monopolies(5) shows that others in the late 18th century, though sharing Jefferson's skepticism, were willing to allow limited monopoly-grants to authors and inventors. One such slightly less skeptical individual was James Madison, who in 1788 wrote to Jefferson,
With regard to monopolies, they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it?(6)
Madison repeated these same ideas late in his life, in an essay entitled "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments":
Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases--the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given....Perpetual monopolies of every sort are forbidden not only by the genius of free governments, but by the imperfection of human foresight.(7)
Some Americans shared Jefferson's fears that even monopolies granted to authors and inventors might be abused. During debate in Pennsylvania's ratifying convention, Robert Whitehill noted Congress' power to grant exclusive rights to authors, and warned that Congress might abuse even this limited power:
Though it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press, no doubt; and under licensing the press, they may suppress it.(8)
Others shared Madison's willingness to tolerate carefully limited monopolies to authors and inventors. An author calling himself "Centinel" in a contribution to the Philadelphia Freeman's Journal, remarking on the draft constitution's lack of a bill of rights, expressed both a fear of monopolistic power and a willingness to allow a limited exception to authors and inventors:
There is [in the draft Consititution] no declaration, that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding...that the trial by jury in civil cases as well as criminal, and the modes prescribed by the common law for safety of life in criminal prosecutions shall be held sacred; that the requiring of excessive bail, imposing of excessive fines and cruel and unusual punishments be forbidden; that monopolies in trade or arts, other than to authors of books or inventors of useful arts, for a reasonable time, ought not to be suffered.(9)
Even the skeptical Thomas Jefferson at last resigned himself to giving Congress the power to grant limited monopolies to authors and inventors. But he continued to insist on strict limits. On August 28, 1789 he wrote to Madison about the recently-drafted bill of rights:
I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me:...Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and no other purpose.(10)
A few days later, Jefferson had worked out his own preference for the time-limit on monopoly grants to authors and inventors. He based his proposed term on his principle that "the earth belongs in usufruct to the living", and computed it by means of actuarial tables:
Generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from tables of mortality [and is found to be] 18 years 8 months, or say 19 years as the nearest integral number....The principle, that the earth belongs to the living, and not to the dead, is of very extensive application...Turn this subject in your mind, my dear Sir...and develop it with that perspicuity and cogent logic so peculiarly yours...Establish the principle...in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years.(11)
All these statements share a common fear of abuses of monopoly power. That "power is ever grasping"(12) was a principle well known to the republic's founders. Even the monopolies granted to authors and inventors must be, in Madison's words, "guarded with strictness against abuse."(13) The framers well understood that a government could as easily abridge freedom by the indirect means of granting powerful private monopolies as by more direct exercises of its power. Hence "perpetual monopolies of every sort are forbidden...by the genius of free governments,"(14) and the people were entitled to have their freedom guarded as much from indirect oppression as from direct oppression.
But the Framers had another reason for limiting these grants of monopoly, intimately connected with their reason for allowing them to be granted at all: they believed that works of the mind are inherently shared by the whole people as a matter of right. This view of the work of authors and inventors is implicit in Madison's reference to "a benefit actually gained to the community"(15), and was explicitly stated by Benjamin Franklin in his Autobiography:
Governor Thomas was so pleased with the construction of this stove [i.e. the Franklin stove]...that he offered to give me a patent for the sole vending of them for a term of years; but I declined it from a principle which has ever weighed with me on such occasions, viz.: That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.(16)
A similar principle was expressed in more general terms by Jefferson in his famous letter to Isaac McPherson:
It would be curious...if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, received instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.(17)
The founders' theory of copyright and patent presupposed that works of the mind belong "to the community"; but the same Founders pragmatically supposed that not all authors and inventors would forego reward in Franklin's generous fashion. Some reasonable prospect of reward, in the form of a government grant of limited monopoly privilege, was thought to be fair and useful. But the assumption on all sides was that the grant of privilege should only be for a "limited", "reasonable" time. The process of encouraging the arts through grants of monopoly was not complete upon the work's creation and dissemination; the process was complete only when the public was finally able to use the work freely for any purpose. A perpetual or overly-long monopoly would, it was held, inevitably operate to the community's disadvantage, and would be repugnant to the inherently shared nature of works of the human mind.
2. THE SUPREME COURT'S TEACHING IN A LONG LINE OF PATENT AND COPYRIGHT CASES HOLDS THAT PATENT AND COPYRIGHT LEGISLATION MUST SERVE THE PUBLIC INTEREST FIRST OF ALL.
With only occasional deviations, the Supreme Court of the United States has repeatedly asserted the same philosophy of copyright and patent that was articulated by Franklin, Jefferson, and Madison. The means of copyright, the Court has consistently held, is a temporary monopoly privilege, granted by the public to the author or inventor; the goal of copyright is to benefit the whole society by enlarging the public domain in arts, literature, and inventions, since works of the mind belong "to the community", and each generation builds on the past and each artist and artisan gains benefits from others' contributions. Any Congressional act which creates the means of copyright and patent must be consistent with the restrictions on those means specified in the Constitution, and with the constitutionally specified ends. Hence the the patent-law case of Graham v. John Deere Co. of Kansas City, the Court stated:
At the outset it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress "To promote the progress of...useful Arts, by securing for limited Times to ...Inventors the exclusive Right to their ...Discoveries...." Art. I, #8. The clause is both a grant of power and a limitation....The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.(18)
Similarly in Sony Corp v. Universal City Studios, the Court held that
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.(19)
That copyright and patent are grants of privilege, not the regulation of a pre-existing right, is explicitly stated in Sony and is implicit in the Court's use of the word "monopoly" in John Deere. That the ultimate purpose is to enlarge the public domain is stated negatively in John Deere: "Congress may not authorize the issuance of patents whose effects are...to restrict free access to materials already available."(20) and positively in Sony: "The limited grant...is intended...to allow the public access to the products of...genius after the limited period of exclusive control has expired."(21) In otherwords, according to the court, the purpose of copyright is to enlarge the public domain in expression through the expiration of copyright.
Nor was the Court's view of patent and copyright in Sony and John Deere any new teaching. It is precisely the view of patent and copyright which had been articulated by Jefferson, Madison, and Adam Smith; and it is implicit in Benjamin Franklin's statement(22) that "as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours." The Supreme Court itself early stated these same ideas in the context of patent law:
While one great object [of the patent law] was, by holding out a reasonable reward to inventors and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor.(23)
Congress, then, has considerable discretion in laying down the policy which it thinks will best encourage the arts; but this discretion is not boundless. "The standard expressed in the Constitution...may not be ignored,"(24) either by the courts or by the Congress.
3. THE CONSTITUTIONAL OBJECTIVES OF COPYRIGHT CANNOT BE ACHIEVED WITHOUT THE EXISTENCE OF A PUBLIC DOMAIN IN EXPRESSION.
The Constitution states that Congress has the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their prosepective writings and discoveries..." The Constitutional wording incorporates three presuppositions: (1) that securing exclusive privileges to authors and inventors encourages the arts; (2) that limiting the duration of these priviliges also encourages the arts; and (3) that failing to limit the duration of these priviliges is destructive to the progress of the arts, and harmful to society. As the previsous sections have shown, these three constitutional theses, written by the framers into the constitutional wording, have been implicitly or explicitly asserted over and over in the Supreme Court's copyright and patent jurisprudence.(25) According to both the Constitution and the Supreme Court, they are the three legs on which a system of copyright and patent law, if it would be consititutional, must rest.
Though these constitutional presuppositions may be unprovable, their plausibility can nevertheless be supported by means of examples. Since thesis (1) is widely agreed to, this section will present a plausibility argument in support of thesis (2), the proposition that the existence of the public domain -- and hence the expiration of copyright -- is an encouragement to the arts and an indispensable part of any constitutional system of copyright.
Clear examples of how copyright expiration can contribute to artistic and commercial creativity are found in the field of religious music. For writers of religious music and poetry the public domain provides a source of material. Composers commonly adapt, arrange, or harmonize earlier melodies(26); lyricists create metrical paraphrases of scriptural words(27), or write additional verses to earlier hymns(28). And although talented composers and talented lyricists are fairly common, for both talents to be found in the same individual is somewhat rarer. The public domain provides a reservoir of melodies to which lyricists, even if they do not care to write melodies, can create words freely. Similarly the public domain provides a supply of lyrics freely available to composers. An examination of American church-hymnals published in this century will show many instances of old words fitted to new melodies(29), and new words to old melodies,(30) as well as old words and old melodies newly brought together(31).
Not only writers and composers, but also compilers and publishers of hymnals benefit from the timely expiration of copyright. After expiration of copyright in The Sacred Harp (first edition 1844), at least three different compilers attempted to capture a share of the market for new editions. Ironically J. L. White, the son of Benjamin F. White who was editor of the 1869 edition of The Sacred Harp, seems to have been the least successful of the several competitors in the field.(32)
In addition to encouraging competition among revised editions of The Sacred Harp, public domain status has allowed for the free inclusion into other hymnals of many individual hymns from The Sacred Harp and other pre-Civil War hymnals. The Episcopal Church's Hymnal 1982, for example, contains a number of tunes from pre-Civil War American hymnals;(33) and this early 19th-century American hymn tradition is only one of the hymn traditions from which modern hymnals draw.(34) Incorporating public domain material into a hymnbook allows the book's compilers freedom to maintain and extend their musical traditions entirely on their own terms, striking the balance they think best between established musical tradition and newer trends in musical art. Furthermore, because incorporation of public domain material ordinarily lowers the amount of royalties paid out by the publisher, the use of the public domain assists the hymnbook's publisher in providing a large anthology of music at a reasonable price to the user.
Besides exerting a downward pressure on the price of hymnals, the incorporation of public domain into a religious group's musical life can enrich that life by enhancing the group's musical freedom. Under current law, although some copyrighted music can be performed freely during worship(35), reprinting copyrighted words or music (in the church leaflet or newsletter, for example) ordinarily requires copyright clearance. Nor does the exemption for religious performance extend to the making of derivative versions of copyrighted words or music. Any rearrangement of copyrighted music beyond the choirmaster's ordinary interpretive discretion might be an infringement of copyright. Nor does the exemption for religious performance extend to performance outside of worship; in many other circumstances copyright holders can prevent their music from being performed(36). Public domain music, on the other hand, can be reprinted, performed, recorded, and arranged freely. If enough public domain material is available to it, a congregation's musical life can flourish without need for more than occasional legal and financial transactions.
All these benefits which the public domain provides in the field of religious music are examples of one of the intended outcomes of a system of time-limited copyright: a world of humble, workaday freedom of expression. In such a world any individual creator, even without wealth or powerful connections, can nevertheless find inspiration and material in music and literature out of which to express an original vision(37). An association of people likewise can draw on the public domain to express their common outlook through music, literature, art, and worship. According to the constitution the people have the right to such a world, and to a public domain in artistic expression from which they can create it. Long copyright terms do not assist the realization of this outcome, but rather work against it by delaying the timely entry of works into the public domain, and increasing the chances that the public's freedom of expression can be eroded by interested parties wielding the power of state-created private monopolies.
4. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE IT PROVIDES NO CREDIBLE INCENTIVE "TO AUTHORS" AND DOES NOTHING "TO PROMOTE THE PROGRESS OF SCIENCE AND THE USEFUL ARTS".
Public Law 105-298, the Copyright Term Extension Act of 1998 (CTEA) must be judged to have ignored the constitutional standard which, according to John Deere, copyright and patent laws are required to meet. Indeed, the Act falls short of every constitutional test which can be identified in the wording of the Constitution and in the case law.
To begin with, a law which purports to "promote" the arts must provide credible incentives for artists currently working. Yet the extension of pre-1978 copyrights by definition applies only to works published before January 1, 1978(38). No work not published before January 1, 1978 can ever qualify for the 67-year renewal term. Hence the extended renewal term cannot even be argued to provide an indirect incentive to future creators by virtue of being part of a uniform regulatory system which by its overall structure provides the incentive, since it applies only to an obsolete system which is no current author is able to take advantage of. Nor can the extension of the renewal term credibly be said to provide anything "for authors", since the extra 20 years are added to works already 75 years old, by which time almost all the authors (and their widowed spouses) are dead. Hence the CTEA's extension of pre-1978 copyrights ignores both the Constitutional means of copyright (providing the possibility of a reward for authors) and frustrates the Constitutial goal of enlarging the public domain after a reasonable time.
5. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE THE 95-YEAR OVERALL TERM GRANTED TO PRE-1978 WORKS EXCEEDS ANY REASONABLE DEFINITION OF "LIMITED TIMES."
As noted above,(39) Thomas Jefferson believed that each generation should not be overly burdened with legal and financial obligations inherited from the dead past. For Jefferson, all debts, patents, and copyrights, and even laws, should expire "when a majority of those of full age [when the obligation was assumed] shall be dead." Jefferson computed a term of 19 years on this basis. Computation using Jefferson's formula and modern life tables(40) gives a modern Jeffersonian copyright term of 30 years.
Even if we find grounds to go beyond the neo-Jeffersonian 30-year term, Jefferson's underlying principle--that the past should not lay excessive imposts on the present--retains its appeal as a reasonable principle, and should continue to be applied in the following way: the longer Congress attempts to make the copyright term, the more clearly and explicitly it should be required to justify the term's length. Any attempt to extend the term beyond, say, the 42-year term which worked successfully for nearly 80 years (1831 to 1909), should be subjected to strict consitutional scrutiny, and should be held constitutional only if it clearly provides "for authors", clearly encourages the arts, and can clearly be considered a "limited" time. The 95 year term provided to pre-1978 published works by the CTEA fails on all of these grounds. In particular, it exceeds any term which can be considered, in Jefferson's words "clearly and without the aid of sophisms"(41), to be a "limited" time.
Rational upper bounds on the term of copyright can be computed in a number of ways. Thomas Jefferson's formula, already mentioned, gives a term of 30 years. If instead of setting the term to the half-life of the population age 20 and over, we allow for the death of three quarters of those 20 years old and older, we compute a term of 45-50 years. If we set the term to the number of years it takes ninety percent of those of age 20 and over to die, the term still comes to less than 60 years.
Also constraining the term of copyright are the physical limitations of the media in which works are fixed. Books, for example, deteriorate over time. A book at the end of 75 years is likely to be scarce and delicate; a book at the end of 95 years even more so. This can make copies of the work far less accessible to many members of the public than they would otherwise be(42). The term of copyright should not be longer than the first edition of a hardback trade book can undergo reasonable use in a public library while remaining in reasonably good condition. A term of seventy-five years is already longer than this for many printed books. The public domain cannot truly be called public if many works, when they finally enter it, are available only in scarce, delicate copies.
Yet another way of estimating a fair term is by comparing it to the time within which a prudent investor can foresee a reasonable return. This line of analysis was considered by Professor Chaffee, in his discussion of copyright assignments under the 1909 copyright law:
A businessman remarked to J. M. Maguire that for him "fiften years was eternity." The publisher must have always shaped his lump-sum offer according to his expectation of sales within the first few years of the copyright. That is when he makes his killing. This is probably truer today than ever, because of the rapid waning of most books and songs.(43)
Since the decision (by author or publisher) to invest in a copyright is implicitly a commercial and financial computation, an upper bound for the term of copyright might even be estimated by a comparison to another predictive financial computation, namely the present value of a term annuity. If the initial present value of an annuity of M years at an interest rate of R be designated V(M,R), then a reasonable upper bound for the term of copyright might be estimated by N where N is the term at which the fractional change in the initial present value of the annuity due to an extension of one year, V(N+1,R)/V(N,R) - 1, drops below some specified tolerance(44). If R is five percent and the cutoff value of the fractional change in the initial present value is one percent, one computes a term N of thirty-seven years. For an interest rate of 10% and a cutoff tolerance of one percent, the formula gives a term of 25 years. Setting the cutoff tolerance to one tenth of one percent (one part per thousand) gives a term of 80 years at a prevailing interest rate of 5%, and 48 years if the interest rate is 10%. These figures are upper bounds to the copyright term since a copyright is a more speculative investement; its value after many years must be discounted more quickly.
The widespread practice of setting the term of authors' copyrights to the life of the author plus a certain extra term has both advantages and disadvantages. Among the advantages is that if the author dies prematurely, the copyrights provide a legacy to a widowed spouse and surviving minor children, as well as providing the author's heirs a margin of time to publish and profit from any posthumous works. But a term of about 30 years after the author's death is the most that can be justified by these considerations.
Whatever method is used to compute the term of copyright, the term must qualify, "clearly and without the aid of sophisms"(45), as a "limited"(46) time. It must, as the Supreme Court noted concerning the term of patent in Pennock and Sellers v. Dialogue, place the monopolized item in the public domain "at as early a period as possible, having due regard" for the author.(47) The term of copyright should be long enough to give the author a chance to acquire reasonable compensation, and no longer. None of the computations of this term considered in this section has produced a result greater than 80 years, and most of the computed terms were shorter than this. These computations combined with adherence to the tradition of setting the term of copyright to multiples of 7 years (the traditional term of an apprenticeship) gives a term of 77 years from the time a work becomes part of the public record as the outermost limit to the term of copyright that can be justified by any of the means considered above. The intentions of the framers, and the traditions of American copyright, would if anything favor a term shorter than this. Certainly the seventy-five year term provided to pre-1978 works by the Copyright Act of 1976 is more than adequate. It generously gives authors not only a chance to gain adequate compensation, but time enough for several second chances. The twenty-year extension, to 95 years, is not only unneccesary, but counterproductive. This is because copyright expiration after a reasonable time is required for copyright's proper functioning. It is both through the existence of copyrights and through their expiration that the copyright law promotes the arts and sciences.
6. THE RECENTLY-PASSED COPYRIGHT TERM EXTENSION ACT IS UNCONSTITUTIONAL BECAUSE IT IS MOTIVATED BY A DESIRE TO ESTABLISH PERPETUAL COPYRIGHT.
That the CTEA is intended as a step toward perpetual copyright is clear from statements of the Act's supporters. On the day the Act passed the House of Representatives, Congresswoman Mary Bono remarked,
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.(48)
The same desire for perpetual copyright is implicit in the following words of from the Judiciary Committee report on S. 483:
[I]ntellectual property is the only form of property whose ownership rights are limited to a period of years.(49)
This statement considers the expiration of a statutory grant of monopoly to be equivalent to a "taking" of property which otherwise could be privately owned in perpetuity. The authors of this statement apparently see the expiration of copyrights and patents as some sort of anomaly. This aspect of the Act's supporter's philosophy is further illuminated by Mary Bono's remarks:
[The late Congressman Sonny Bono] truly understood the goals of Framers of the Constitution: that by maximizing the incentives for original creation, we help expand the public store-house of art, films, music, books and now, also, software.(50)
Congresswoman Bono's statement is self-contradictory. The framers' intent was indeed to "expand the public store-house of art" -- that is, the public domain.(51) This is demonstrated by the framers' references to works of the mind as inherently shared; to be free to all was, for the Framers, was the natural condition of writings and discoveries(52). However, the incentives to production and dissemination were not to be maximized, but to be set to a reasonable level to provide "sufficient recompense and encouragement.(53)" The grant of monopoly was then intended to expire after a reasonable time since "perpetual monopolies of every sort are forbidden not only by the genius of free governments, but by the imperfection of human foresight.(54)" The framers assumed, as did Adam Smith(55), that all monopolies eventually outlive their usefulness and became destructive to the very ends they originally had been granted to encourage.
Mary Bono's idea that more copyright is always better copyright finds its source, not in the words of the Framers, but in the school of thought which Professor Netanel has called "neoclassicist":
This "neoclassicist" approach posits that, far from simply inducing the creation and dissemination of new expression, copyright serves as a vehicle for directing investment in existing works. Neoclassicists would accordingly treat literary and artistic works as "vendible commodities," best made subject to broad proprietary rights that extend to every conceivable valued use. In this manner, neoclassicists contend, market pricing can direct resource allocation for the marketing and development of existing creative expression in an optimally efficient manner.(56)
This approach has little room for the expiration of copyright. A strict follower of what Professor Netanel calls the neoclassicist philosophy would allow for copyright expiration when costs of tracing a rightsholder over many years became high, but would see no need for it otherwise(57). The anti-constitutional nature of this philosophy can be seen by comparing it to the attitudes of the framers, for whom the best mechanism for allocation of investment resources in mature writings and inventions was the public domain--a free market, without monopolistic distortions.
7. THE EXTENSION OF COPYRIGHT TERM PASSED BY CONGRESS IN 1998 IS MOTIVATED BY AN EXTREME VERSION OF THE ANALOGY OF WORKS OF AUTHORSHIP TO "PRIVATE PROPERTY". SUCH A VIEW OF WORKS OF AUTHORSHIP IS INCONSISTENT WITH U.S. COPYRIGHT TRADITION, AND IS IN FACT ANTI-CONSTITUTIONAL.
The concept of a work of authorship as an author's "property" has repeatedly been invoked by the copyright extension's supporters. Though this is a venerable analogy in copyright law, it is no more than an analogy and, in fact, an imperfect one. Indeed, Justice Holmes once observed that to consider a work of authorship as a piece of "property" is to stretch the meaning of the word almost to the breaking point:
In copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but it is in vacuo, so to speak. It restrains the spontaneity of men where, but for it, there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right...It is a right which could not be recognized or endured for more than a limited time...(58)
In the statements of the CTEA's supporters, Justice Holmes's reservations and qualifications are nowhere to be found. The Senate Judiciary Committee report, quoted above, notes that copyrights expire(59). But the committee majority seem to see this fact as some sort of sad mistake. The copyright holder's "property" is not, as in Justice Holmes's description, something which the public must "endure", but something which the rightsholder must "give up." This view of copyright, according to which either the work or the copyright (the distinction is not always clearly made) should be perpetually the author's "property" is at the center of the motivation for the CTEA. The evidence for this is found in statements like these in support of the Act:
The copyright law was considered up to now as forbidding pirates to steal an author's property before a maximum of fifty-six years after its registration. After this time every pirate could use it freely, making great profits without letting the real owner 'participate' in the profits of his property.(60)
The notion of public domain is a troublesome one for creators, because we are the only property owners who are required to give up our property after a certain time.(61)
I wish, in a way, the public domain didn't exist at all.(62)
I own it; it's the product of my mind. Why should I be able to pass my house or whatever jewelry I might have on to my children and grandchildren and not the songs that I create -- not that property ?(63)
If this extremist view of copyright is allowed to dominate the presuppositions of all new legislation, the true worth of the public domain will always be slighted. It is vital that the courts should remind Congress in no uncertain terms of the Constitutional limits on its power to grant copyrights. One way the courts can do this is by explicitly repudiating the CTEA, and the extreme "neoclassicist" or "property" view of copyright that underlies it, as repugnant to the Constitution. In its place, the court should clearly articulate a Constitutional philosophy of copyright which places the rights of the public to a public domain in literary expression on an equal footing with the right of the author to a reasonable chance of compensation.
8. THE COPYRIGHT EXTENSION OF 1831, IN WHICH THE SUPREME COURT ACQUIESCED, CAN BE DISTINGUISHED FROM THE EXTENSIONS OF 1976 AND 1998 BECAUSE THE EXTENSION OF 1831 WAS FAR MORE LIKELY TO HAVE REWARDED LIVING AUTHORS. THE SUPREME COURT'S ACQUIESCENCE IN THE CONGRESSIONAL ACT OF 21 JANUARY 1808, "AN ACT FOR THE RELIEF OF OLIVER EVANS" CAN SIMILARLY BE DISTINGUISHED BECAUSE IT WAS A GRANT TO A LIVING INVENTOR. THE EXTENSION OF 1998 DIFFERS FROM ALL PREVIOUS EXTENSIONS ALSO IN BEING LONGER, IN EXTENDING THE TERM OF COPYRIGHT TO UNPRECEDENTED LENGTH, AND IN STOPPING ENTRY OF WORKS INTO THE PUBLIC DOMAIN ALMOST COMPLETELY FOR A TIME.
The U.S. Supreme Court has never explicitly ruled on whether Congress has the power to extend copyrights already issued. In an 1871 case, Paige v. Banks,(64) the Court accepted the validity of the 1831 copyright statute without comment; neither of the parties brought the question of the constitutionality of the 1831 Act before the court in that case. Hence Paige v. Banks cannot be considered legal precedent establishing an open-ended Congressional power to grant copyright extensions. The Court's acquiescence in the extension of 1831 in that case is further distinguished by the considerable difference between an extension by 14 years of an initial term of 14 years, creating a maximum possible copyright term of 42 years, and an extension by 20 years of a renewal term of 47 years creating a maximum possible copyright term of 95 years. Besides the difference in the overall term, the extension of the initial term in 1831 was far more likely to have rewarded living authors. In the present case, most of the authors are dead; the extension of 1998 does nothing for them.
The Supreme Court's acceptance, in the case of Evans v. Jordan,(65) that Congress may extend patents previously granted, must be distinguished in the same way. The patent extension at bar in that case, "An Act for the relief of Oliver Evans", was granted in 1808 to a living inventor(66). The CTEA of 1998, in contrast, rewards not living authors, but remote assignees.
In 1836 Congress passed a law allowing for the extension of patents for an additional seven years under certain circumstances. In 1846 the Supreme Court held, in the case of Wilson v. Rousseau,(66A) that this renewal term could be granted to a patentee's executor if the patentee had died. This ruling, however, cannot be taken to establish the doctrine that congress can extend copyrights to any term whatsoever. The court's ruling in Wilson v. Rousseau is of doubtful accuracy to begin with; the wording of the statute of 1836 provided only for renewals to the inventors themselves (66B). But even apart from that concern, the case must be seen in light of the strict renewal provisions of the 1836 statute. Patent renewals were not granted merely upon application. The inventor had to show that he had, through no fault of his own, failed to receive sufficient recompense from the patented invention. On this showing, the patent would be renewed for another seven years, for an overall patent term of 21 years. It simply does not follow that, because Congress may extend patents to twenty-one years for inventors who have not received "reasonable remuneration" (66C) from their inventions, it may constitutionally extend the term of copyright to ninety-five years for the benefit of heirs who have already received fortunes from their ancestor's copyrights.
Lower federal courts have been somewhat more expansive in their view of Congress' power to grant and extend patents. In the case of Evans v. Eaton, the Circuit Court of the District of Pennsylvania asserted that
It is not true that the grant of an exclusive privilege to an invention for a limited time, implies a binding and irrevocable contract with the people, that at the expiration of the period the invention shall become their property. The state has a perfect right to renew the grant at the end of the period or to refuse to do so; and in the latter case, it is a matter of course that the invention may be used by any person who chooses to do so. In like manner may congress renew a patent right or decline to do so. But even if the premises were true, still there is nothing in the constitution of the United States which forbids congress to pass laws violating the obligation of contracts, although such a power is denied to the states individually.(67)
Judge Story, in his opinion in Blanchard v. Sprague, similarly held that
It is suggested, that the grant of the patent by the act of congress of 1839...is not constitutional; for it operates retrospectively to give a patent for an invention, which, though made by the patentee, was in public use and enjoyed by the community at the time of the passage of the act. But this objection is fairly put at rest by the decision of the supreme court in the case of the patent of Oliver Evans, Evans v. Eaton, 16 U.S. 454. For myself, I never have entertained any doubt of the constitutional authority of congress to make such a grant. The power is general, to grant to inventors; and it rests in the sound discretion of congress to say, when and for what length of time and under what circumstances the patent for an invention shall be granted. There is no restriction, which limits the power of congress to enact, where the invention has not been known or used by the public. All that is required is that the patentee should be the inventor.(68)
Mr. Story's reading of Evans v. Eaton seems to read too much into the opinion. In that case the judgement of the circuit court was reversed and the case remanded on the grounds that the jury had been improperly instructed.(69) The validity of "An Act for the Relief of Oliver Evans" was accepted implicitly, as in Evans v. Jordan, but not addressed explicitly. Furthermore, Mr. Story's views of patent and copyright tended toward the anti-constitutional(70), and so must be used with caution. But even apart from these considerations, the same observation can be made concerning these lower-court cases that was made concerning Evans v. Jordan: The extended privileges were granted to still-living inventors. The CTEA, by contrast, grants extended privileges to the assignees of long-dead authors.
Nor can the Federal District Court's holding in Sociedad de Autores Españoles v. Americo Marin(71) that Spanish copyrights (which at that time had a maximum term of life plus eighty years) were valid in Puerto Rico under the Treaty of Paris, be cited in support of the CTEA. The District Court's ruling in that case was extremely tentative, and the question was rendered moot by passage of the Copyright Act of 1909.
The copyright extension of 1998 is distinguishable from all previous extensions by the length of the extension, by the resulting overall term, and by its effect on the entry of works into the public domain. Since 1790, the statutory term of copyright has been extended 3 times(72). The longest extension to the statutory term prior to 1998 was by 19 years in 1976, which extended all renewed pre-1978 copyrights to a total term of 75 years. Unrenewed copyrights, however, continued to expire after 28 years, while works intentionally published without notice of copyright entered the public domain immediately. The entry of works into the public domain was attenuated, but not completely stopped. The situation in 1998 was quite different from that prevailing in 1978. By 1998, the requirement of renewal and the requirement of notice had both been abolished. Copyright in no published works whatever will expire for fully 20 years from the signing of the 1998 act, and until an unprecedented ninety-five years from publication has elapsed. The generation now entering its 40s will be grandparents before the works published in their grandparents' youth will enter the public domain--a copyright term of almost four full generations.
9. THE COPYRIGHT TERM EXTENSION ACT OF 1998 IS NOT ONLY BAD POLICY, IT IS ANTI-CONSTITUTIONAL.
For all the reasons enumerated, the Copyright Term Extension Act must be deemed unconstitutional. Rather than encouraging the arts, it frustrates the development on the arts by preventing the turnover of published works into the public domain for a generation--a turnover process which is vital to the maintenance of creative freedom. Rather than limiting the term of copyright, it extends it to absurd, unprecedented length. Rather than providing for authors, it provides only for authors' remote assignees.
FOOTNOTES
1. Thomas Jefferson, Letter to James Madison, December 20, 1787, in Julian P. Boyd, Ed., 12 The Papers of Thomas Jefferson, Princeton University Press, 1956, p. 439, 440.
2. "When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine...By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade they could buy much cheaper; and secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on. It is for the most worthless of all purposes, too, that they are taxed in this manner. It is merely to enable the company to support the negligence, profusion, and malversation of their own servants." Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book 5, Chapter 1, Part 3, Article 1. Britannica Edition, Chicago, 1952, pp. 329-330. See also Adam Smith, Lectures on Jurisprudence, Report of 1762-3, ii.27-37; Report dated 1766, 174-175, in R.l. Meek, D. D. Raphael, and P.G. Stein, Adam Smith: Lectures on Jurispurudence, Oxford University Press, 1978 (1982 reprint), pp. 81-85, 471-472.
3. "He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation...for cutting off our trade with all parts of the world." The Unanimous Declaration of the Thirteen United States of America, Continental Congress, Philadelphia, July 4, 1776. In Merril D. Peterson, Ed., The Portable Thomas Jefferson, Penguin, New York, 1985, p.237.
4. Thomas Jefferson, Letter to James Madison, in Julian P. Boyd, Ed., 13 The Papers of Thomas Jefferson, Princeton University Press, 1956, p. 440, 442-3.
5. Supra, note 2.
6. James Madison, Letter to Thomas Jefferson, October 17, 1788, in Galliard Hunt, Ed., 5 The Writings of James Madison, G.P. Putnam's Sons, 1904, p. 269, 274-275.
7. James Madison, "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments", published posthumously in Galliard Hunt, Ed., "Aspects of Monopoly One Hundred Years Ago, Harper's Magazine, Vol 128, Number 766, March, 1914, p. 489, 490.
8. Robert Whitehill, speech in the Pennsylvania constitutional ratifying convention, December 1, 1787, quoted in Merrill Jensen, Ed., 2 The Documentary History of the Ratification of the Constitution. Ratification of the Constitution by the States. Pennsylvania. State Historical Society of Wisconsin, Madison, 1976, p. 454.
9. Centinel (pseud.), "To the People of Pennsylvania", Philadelpha Freeman's Journal, October 24, 1787, in John P. Kaminski and Gaspare J. Saladino, Eds., 13 The Documentary History of the Ratification of the Constitution, State Historical Society of Wisconsin, 1981, p 457, 466.
10. Thomas Jefferson, Letter to James Madison, August 28, 1789, in Andrew A. Lipscomb, Ed., 7 The Writings of Thomas Jefferson, Thomas Jefferson Memorial Association of the United States, 1903, p 444, 450-451.
11. Thomas Jefferson, Letter to James Madison, September 6, 1789, in Merrill D. Peterson, Ed., The Portable Thomas Jefferson, Penguin Books, 1977, p. 444, 447,450,451.
12. Abigail Adams, letter to John Adams, November 27, 1775, in Letters of Mrs. Adams, The Wife of John Adams, with an Introductory Memoir by her Grandson, Charles Francis Adams, Fourth Edition, Wilkins, Carter & Company, Boston, 1848, p.63.
13. James Madison, "Monopolies Perpetuities, Corporations, Ecclesiastical Endowments", supra note 7, at 490.
14. Id.
15. Id.
16. Benjamin Franklin, Autobiography, in John Bigelow, Ed., 1 The Works of Benjamin Franklin, G. P. Putnam's Sons, 1904, pp. 237-238.
17. Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813, in Andrew A. Lipscomb, Ed., 13 The Writings of Thomas Jefferson, The Thomas Jefferson Memorial Association, 1903, p 326, 333-334.
18. Graham v. John Deere Co. of Kansas City 383 U.S. 1, 5-6 (Sup. Ct., 1966). Footnote omitted.
19. Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984).
20. Graham v. John Deere Co. of Kansas City, supra note 18, at 6 (Emphasis added.)
21. Sony Corp. v. Universal City Studios, supra note 19, at 429 (Emphasis added.)
22. Supra, note 16.
23. Pennock and Sellers v. Dialogue, 27 U.S. 11, 18 (1829) (Emphasis added.)
24. Graham v. John Deere Co. of Kansas City, supra note 18, at 6. Italics in original.
25. Pennock and Sellers v. Dialogue, supra note 23; Graham v. John Deere Co. of Kansas City, supra note 18; Sony Corp v. Universal City Studios, supra note 19. Lower court judges less consistently uphold the constitutional principles of copyright--see below, notes 65-67 and accompanying text--but sometimes they "get it". One circuit judge, for example, noted that "Creativity is impossible without a rich public domain." White v. Samsung Electronics America, 26 USPQ.2d 1362, 1364 (9th Cir. 1993)(Kozinski, J., dissenting from order rejection the suggestion for rehearing en banc).
26. J.S. Bach (1685-1750) was a frequent arranger of older sacred melodies. Bach's arrangements of the melody Ein' feste Burg by Martin Luther (1483-1546); of Herzlich tut mich verlangen, by Hans Leo Hassler (1564-1612); and of Wie schön leuchtet, attributed to Philipp Nicolai (1556-1608) are well-known. Popular songwriter Paul Simon used Bach's version of Herzlich tut mich verlangen in one of his songs. Humorist John Forster used the same melody in "Fusion," his satirical comment on Paul Simon's habits of self-promotion.
27. "From all that dwell below the skies" (based on Psalm 117) by Isaac Watts (1674-1748), and "O praise ye the Lord!" (based on Psalm 148) by Henry Williams Baker (1821-1877) are only two of many examples.
28. Under Hymn number eighty-one in the Episcopal Church's Hymnal 1982 is the following note: "Words: St. 1-2, German, 15th cent.; tr. Theodore Baker (1851-1934). st. 3, Friedrich Layritz (1808-1859); tr. Harriet Reynolds Krauth Spaeth (1845-1925); ver. Hymnal 1940." This means that one named author, two named translators, at least one anonymous author, and one church committee, their generations spanning a period of some five hundred years from first to last, all had a hand in putting the words of the hymn into their present form.
29. The words "Come my Way, my Truth, my Life," by George Herbert (1593-1633), are set in the Hymnal 1982 to The Call, an adaptation by E. Harold Geer of a melody by Ralph Vaughan Williams (1872-1958), which was written for these words as part of a suite entitled "Five Mystical Songs" (1911). Private communication from Professor Ray Glover of Virginia Theological Seminary.
30. The words "Turn back, O man, forswear thy foolish ways" by Clifford Bax (1886-1962) were written for the 16th-century hymn-tune Old 124th. These words by Bax were set to still another melody by Stephen Schwartz for the musical play Godspell.
31. The hymn-lyric "O Little Town of Bethlehem" was written in 1868 by Phillips Brooks (1835-1893), rector of Holy Trinity Church, Philadelphia, and was early set to the melody St. Louis composed by Lewis H. Redner (1831-1908), who was the organist at the same church. The words are still widely sung to this melody. In recent decades, however, the words have also become associated with a 19th-century English folk tune, The Plowboy's Dream or Forest Green, collected early in this century by composer and folksong collector Ralph Vaughan Williams (1872-1958). See The Hymnal 1940 Companion, Church Pension Fund, New York, 1949, p. 17, 389, 539, and Journal of the Folk Song Society #8, 1906, p. 203.
32. Gavin James Campbell, "'Old Can Be Used Instead of New:' Shape-Note Singing and the Crisis of Modernity in the New South, 1880-1920", Journal of American Folklore 110(436),169-188(1997). Revisions of The Sacred Harp were produced by William M. Cooper (The Sacred Harp, Revised and Improved, 1902), J. L. White (The New Sacred Harp, 1884, co-edited by White's brother, B. F. White, Jr; Fifth Edition of the Sacred Harp, 1910; and Fourth Edition of the Sacred Harp, with Supplement, 1911), and Joseph James, (The Original Sacred Harp, 1911.) For a report of copyright litigation involving two of these editors, see Cooper v. James, 213 F. 871 (N. D. Georgia, 1914).
33. The Hymnal 1982 has, for example, the tunes Birmingham and Nettleton from Wyeth's Repository of Sacred Music, part Second (1813); Morning Song and Tender Thought from The Kentucky Harmony (1816); Detroit, from the Supplement to the Kentucky Harmony (1820); Light and Pleading Savior from The Christian Lyre (1830); New Britain ("Amazing Grace"), from The Virginia Harmony (1831); Charlestown, Star in the East, Holy Manna, Kedron, Middlebury, Resignation, Restoration, Vernon, and Wondrous Love, all of which appeared in the at least one edition of The Southern Harmony and Musical Companion (first edition 1835; new edition 1847; revised edition 1854); and Foundation, from The Sacred Harp (1844).
34. Others are the medieval tradition, the renaissance/baroque tradition, the classical/romantic tradition, the Welsh Methodist tradition, the Jewish tradition, and the folk tradition. If music drawn from these traditions were added to the list given above, it would be much larger. It would be larger still if it included the reprinting in the hymnal of public-domain words as well as music.
35. 17 U.S.C 110(3).
36. If the church youth-group gives a concert or talent show to raise funds for its ski trip, for example, the charitable-purposes exemption of 17 U.S.C. 110(4)A would not apply.
37. The author, due to space constraints, remarks only in passing that the musical art cannot even be learned without some form of copying of music of past generations.
38. The copyrights extended by the CTEA can be divided into five classes: (1) Extension of the renewal term of copyright in pre-1978 works already in their renewal term; (2) extension of the renewal term of pre-1978 works still in their initial copyright term; (2) extension of the term of copyright in post-1978 works by now-dead authors from 50 to 70 years after the author's death; (4) extension of the term of copyright in post-1978 words by still-living authors from 50 to 70 years after the date of the author's death; and (5) extension of copyright in unpublished pre-1978 works to at least January 1, 2047 if they are published before January 1, 2003. This essay concentrates on the most objectionable feature of the CTEA, the extension of copyright in pre-1978 published works. The author believes, however, that some of the objections brought here against class (1) and class (2) extensions apply as well to the CTEA's extension of the term of all coprights, including future copyrights.
39. Supra, note 11.
40. Vital Statistics of the United States 1992, Volume 2-Mortality, Public Health Service, Hyattsville Maryland, 1996, Part A, Section 6, Page 7, Table 6-1.
41. Supra, Note 1.
42. A delicate book kept in one of a university library's special collections, for example, is likely to be unavailable to many, if the special collection is accessible only from 9AM to 5PM, Monday through Friday when most folk must be at work. Even someone who can gain access to the work may find that the library does not permit the work to be photocopied. The book might still be copied by hand, but this is a much more difficult and error-prone process.
43. Zechariah Chaffee, Jr., "Reflections on the Law of Copyright:II", 45 Columbia Law Review (1945), 719, 721.
44. Because the cutoff criterion is expressed as a fraction, the result is independent of the value of the annuity's annual payment.
45. Thomas Jefferson, Letter to Madison, December 20, 1787, supra note 1.
46. U.S. Const., Art. I, Sec. 8, cl. 8.
47. Pennock and Sellers v. Dialogue, supra, Note 23, at 18, emphasis added.
48. Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9952.
49. Senate Report 104-315, Copyright Term Extension Act of 1996, 104th Congress, 2nd Session, July 10, 1996 (hereafter CTEA: Sen. Rept. 104-315, 1996), p. 11. Even if the facile presupposition that so-called "intellectual property" is strictly analagous to other "form[s] of property" were accepted, this statement would still be in error. Many things which are bought, sold, and exchanged as "property" can be time-limited, such as bonds, mortgages, pensions, annuities, purchasing options, insurance policies, and livestock. A homeowner who pays off a mortgage is not said to "take" anything from the bank, nor if the government pays a bond at maturity is it said to "take" anything from the bondholder. Even less should the expiration of a government grant of monopoly be considered a "taking". Yet this view of copyright expiration as a "taking" pervades the statement of the committee majority in the report of July 10, 1996.
50. Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9951-H9952.
51. Congresswoman Bono apparently thinks "the public store-house of art" can consist entirely of copyrighted works. If her words are interpreted in this way, the internal inconsistency in her words is removed, but the inconsistency between her words and the traditions of American copyright is exacerbated. According to the American tradition, the public store-house of the arts must truly be free to the public: "the limited grant...is intended to allow the public access to the products of [authors'] genius after the limited period of exclusive control has expired." Sony v Universal City Studios, 464 U.S. 417, 429, supra note 19 (emphasis added).
52. Benjamin Franklin, Autobiography, supra note 16, at 238; Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813, supra note 17, at 334; Madison, "Monopolies", supra note 7, at 490.
53. Madison, "Monopolies", supra note 7, at 490.
54. Id.
55. Adam Smith, Wealth of Nations, Book 5, Chapter 1, Part 3, Article 1, supra note 2.
56. Neil Weinstock Netanel, "Copyright and a Democratic Civil Society", 106 Yale L.J., 283, 286-287 (1996).
57. Id., at 368.
58. White-Smith Music Publishing Co. v. Apollo Co. 209 U.S. 1., 19, (1908).
59. Supra, note 49.
60. United States Senate Committee on the Judiciary, Report 104-817. Hearing on S. 483, September 20, 1995 (hereafter Hearing on S. 483), p. 68. Passage from Arnold Schoenberg's Style and Idea submitted as part of the testimony of E. R. Schoenberg.
61. Id. at 123. Testimony of Songwriter Patrick Alger.
62. Remark by Mary Rodgers, president of the lobbying organization AMSONG, quoted in Robert Kolker, "Theaters on Alert as Congress Looks at Copyright Law," 36 Back Stage, Number 9, March 3, 1995, p. 3.
63. Remark by Marylin Bergmann, president of ACSAP, quoted in Madeline Brand, "Report on Copyright Term Extension," Morning Edition, National Public Radio, June 8, 1998.
64. 80 U.S. 608 (1871).
65. 13 U.S. 199 (1815).
66. See also Wilson v. Rousseau, 45 U.S. 646, at 702 (1846): "Congress, in ten or twelve instances, have renewed patents to the inventors. (Woodbury, J., dissenting. Emphasis added.)
66A. 45 U.S. 646 (1846)
66B. Id., at 673.
66C. Id.
67. Evans v. Eaton, 8 Fed. Cas.846, 848-849. (C.C. D. Pa., 1816). Compare and contrast the the following quote from an opinion of the Supreme Court which implies that the analogy of the grant of monopoly privilege to a contract to which the public is a party is to some extent reasonable: "...[I]n every grant of the limited [patent] monopoly two interests are involved, that of the public, who are the grantors, and that of the patentee. There are thus two parties to every application for a patent, and more, when, as in case of interfering claims or patents, other private interests compete for preference." Butterworth v. United States ex. rel. Hoe and others, 112 U.S. 50 (1884).
68. Blanchard v. Sprague, 3 Fed. Cas. 648, 650. (C.C. D. Mass., 1839).
69. Evans v. Eaton, 16 U.S. 454, 518 (1818).
70. "It is, indeed, but a poor reward, to secure to authors and inventors, for a limited period only, an exclusive title to that, which is, in the noblest sense, their own property; and to require it ever afterwards to be dedicated to the public." Joseph Story, A Familiar Exposition of the Constitution of the United States, American Book Company, New York, 1840. Story's philosophy is utterly incompatible with the views of the framers. See also L. Ray Patterson, "The Worst Intellectual Property Opinion Ever Written: Folsom v. Marsh and its Legacy, 5 J. Intellectual Prop. Law 431-452 (1998).
71. Sociedad de Autores Españoles v. Americo Marin, 4 Porto Rico Federal Reports 288 (D.P.R. Sept. 18, 1908.)
72. The term of U.S. copyright was extended in 1831 (by 14 years), 1909 (by 14 years), 1962 (by 3 years), 1965 (by 2 years), 1967 (by 1 year), 1968 (by 1 year), 1969 (by 1 year) 1970 (by 1 year), 1971 (by 1 year), 1972 (by 2 years), 1974 (by 2 years), 1976 (incorporated the extensions of 1962 through 1974 for all copyrights and added an additional 5 years, making an overall 19 year extension the result of the extensions of 1962 through 1976), and 1998 (by 20 years).
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