30 UMPSLR 363
(Cite as: 30 U. Mem. L. Rev. 363)
University of Memphis Law Review
*363 THE SONNY BONO COPYRIGHT TERM EXTENSION ACT
Christina N. Gifford [FNa1]
Copyright © 2000 University of Memphis Law Review; Christina N. Gifford
I. INTRODUCTION ........................................................ 364
II. HISTORY AND PURPOSE OF COPYRIGHT LAW IN THE UNITED STATES ........... 365
A. Brief History of the Relevant Law ............................ 365
1. The Statute of Anne ...................................... 365
2. Early United States Statutes ............................. 366
3. The Copyright Act of 1976 ................................ 369
B. The Purpose of Copyright Law ................................. 372
1. The Source of Copyright .................................. 372
2. The Framers' Intended Purpose ............................ 372
3. Natural Rights' Influence on Copyright ................... 374
III. THE CTEA AND ITS EFFECTS ............................................ 378
A. The Language of the Act ...................................... 378
B. Term Extension ............................................... 379
C. Transfer Rights .............................................. 381
D. A New Infringement Exception ................................. 383
E. Audiovisual Works ............................................ 384
IV. SUPPORT FOR THE CTEA ................................................ 385
A. Mickey Mouse Goes to Washington .............................. 385
B. Rationales for Support ....................................... 386
1. Competition in the World Market .......................... 386
2. Harmonization with the European Community Copyright Term . 387
3. Longevity as a Rationale for Extension ................... 389
4. Incentive for Creativity ................................. 390
V. OPPOSITION TO THE CTEA .............................................. 391
A. Who Opposed the Act .......................................... 391
B. The Opposition Responds to the Supporters' Rationales ........ 392
1. Competition in the World Market .......................... 392
2. Harmonization with the European Community Copyright Term . 393
3. Longevity as a Rationale for Extension ................... 394
4. Incentive for Creativity ................................. 396
C. Other Problems with the CTEA ................................. 397
1. Harm to the Public Domain ................................ 397
2. Violation of the Public Trust Doctrine ................... 398
3. Constitutional Problems with the CTEA .................... 399
VI. CONCLUSION .......................................................... 402
APPENDIX .................................................................. 403
*364 I. INTRODUCTION
On October 27, 1998, the President signed into law the Sonny Bono Copyright Term Extension Act (CTEA or the Act). [FN1] The CTEA effectively extended the term of all existing and future copyrights by a period of twenty years. [FN2] The Act was supported by large corporations and motion picture associations in the entertainment industry, including Disney and Time-Warner, and by individual song writers and artists, as well as the heirs of deceased authors such as the Gershwin Family Foundation. [FN3] Although the bill was presented to Congress as non-controversial legislation, a grass roots effort existed among academicians, educators, and historians, who tried unsuccessfully for many years to prevent, or at least delay, the passage of this bill until further research could determine the beneficial or harmful effects that may result. [FN4] Opponents of the bill also argued and continued to argue that the bill is unconstitutional as enacted because it fails to promote the purpose of copyright law, as set forth in the *365 Copyright Clause of the Constitution, and is a violation of the "limited time" language therein. [FN5]
Part I of this Note is a brief introduction to the CTEA. Part II presents a brief history of copyright law in the United States and analyzes the purpose behind the grant of power to Congress in the Constitution to enact copyright law. Particular attention will be given to the intent of the Framers in granting a monopoly for a "limited time." This section also includes a discussion of natural rights and its influence on the development of copyright law in the United States. Part III looks at the specific language of the Act and offers a summary of its effects on the intellectual property arena. Part IV discusses the justifications for extending the term of copyrights along with the influence and motivation of those who supported the Act. Part V presents arguments of both those who opposed the Act and its supporters and examines the current problems with the Act. The conclusion, Part V, offers a solution to the Act's problems.
II. HISTORY AND PURPOSE OF COPYRIGHT LAW IN THE UNITED STATES
A. Brief History of the Relevant Law
1. The Statute of Anne
From the time of the first written word until the early part of the sixteenth century, an author's rights to his work existed in perpetuity under the common law of England. [FN6] With the invention of the printing press in 1476, mass reproduction of printed material became possible for the first time in history. [FN7] In an effort to restrict distribution of religious materials, the Monarchy granted a monopoly on the publication of all printed materials to the Stationers' Company from 1534 to 1694. [FN8] When this monopoly expired, the printing *366 company tried to prolong their monopoly, but the Monarchy refused. [FN9] The Stationers then lobbied Parliament to grant a monopoly to the authors of the books, believing they could prevent competition by controlling the authors. [FN10] In response, Parliament passed the first copyright statute, the Statute of Anne, [FN11] in 1710. The Statute granted authors the exclusive right to copy their work for a period of fourteen years, and a renewal period of fourteen years was available to the author at the expiration of the original term. [FN12] At the end of the renewal term, the work became part of the public domain. [FN13]
The Statute of Anne signaled an important shift in the focus of copyright law from the rights of publishers to the rights of the authors. [FN14] The purpose of the Statute was captioned in the title, "An act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned." [FN15] The goal of promoting learning was achieved, first, by providing a monopoly as an incentive for authors to create, and second, by limiting the length of the monopoly so that the public would ultimately receive the benefit of the author's creative efforts when the work entered the public domain at the end of the necessary time period. [FN16]
2. Early United States Statutes
Copyright has always been a part of the law of the United States. Twelve of the thirteen original states adopted some form of copyright law under the Articles of Confederation. [FN17] Furthermore, the drafters of the Constitution included copyright as one of the enumerated *367 powers specifically granted to Congress. [FN18] Shortly after ratification of the Constitution, the first United States Congress passed the Copyright Act of 1790, using the Statute of Anne as a model. [FN19] The same individuals who wrote the Constitution made up this first Congress, and they understood the importance of a national copyright system. [FN20] Just like the Statute of Anne, the Copyright Act of 1790 bestowed an original term of fourteen years followed by a possible renewal term of fourteen years if the author remained alive, for a total of twenty-eight years. [FN21] The 1790 Act differed from the Statute of Anne, however, in that the author could assign away his rights in the renewal term as a contingency at any time during the initial fourteen- year period. [FN22]
Over the course of time, Congress has expanded both the length of the copyright term and the types of works protected. [FN23] Copyright law originally protected authors of maps, books, and charts, but the types of works protected by copyright law has continued to evolve as technology demands. [FN24] Copyright law adapts *368 to the demands of technology as new mediums of expression come into being. [FN25] In 1831, Congress extended the initial term of protection from a period of fourteen years to twenty-eight years, but left the renewal term at fourteen years. [FN26] The two-tiered structure of a fixed initial term followed by a term of renewal served the purpose of copyright law by benefitting both authors and the general public. [FN27] It allowed works that were no longer profitable to fall into the public domain at the end of twenty-eight years, assuming the author would not pay to renew rights in a work that was not generating income. The structure also gave authors "a second bite at the apple" if their works achieved popularity during the first term by allowing them to renew the copyright on commercially viable works and to renegotiate licensing terms and conditions of sale. [FN28]
The next change in the law occurred with the Copyright Act of 1909. [FN29] Authors had continuously complained to Congress that the term of protection was not long enough because they were outliving the term of protection, thereby wrongfully depriving them of the fruits of their labor during their lifetime. [FN30] Many authors, including Samuel Clemens, otherwise known as Mark Twain, argued that a term of life plus fifty years, which was already being used by some foreign countries, was the appropriate standard. [FN31] Congress, however, refused to abandon the current two- tiered structure and simply extended the length of the renewal term to twenty- eight years, making protection *369 possible for a total of fifty-six years. [FN32]
3. The Copyright Act of 1976
With new technologies evolving that were never envisioned by the drafters of the first copyright statute, copyright law was in dire need of revision. For example, the invention of photocopiers, computers, and video cassette recorders, in conjunction with the shortcomings of the Act of 1909, obviated the need for change. [FN33] Attempts to make significant changes from 1924 to 1974 generally failed. [FN34] While the Unites States Supreme Court recognized that they "must read the statutory language of ... years ago in the light of drastic technological change," they declined to modify copyright provisions, stating that legislation was the job of Congress. [FN35] Beginning as early as 1962, Congress enacted a series of one-year term extensions while investigating the impact of alternative provisions possibly to be included in the new law. [FN36]
Congress approached the new copyright legislation in a serious and scholarly manner, conducting numerous studies over a period of twenty years. [FN37] "'[A]uthors, publishers, and other parties with economic interests in the property rights"' defined by the statute were ordered by Congress to "sit down with one [an]other and reach mutually agreeable solutions on the substantive issues." [FN38] The result of the studies was a compromise between all involved including the *370 authors, distributors, the Copyright Office, and Congress. [FN39]
The Copyright Act of 1976 (1976 Act) [FN40] was the most sweeping change in copyright law to be enacted since ratification of the Constitution 200 years earlier, and it still serves as the basis of our existing law today. According to some scholars, the 1976 Act "represented a shift in the direction of U.S. copyright philosophy" and "fundamentally changed the [American] copyright system." [FN41] The shift was a perceived movement toward acceptance of a common law copyright theory based on the elimination of the two-tiered structure of a fixed term followed by a renewal term. [FN42] One of the most shocking changes promulgated by the Act was a change in the term of copyright to a single term of life of the author plus fifty years. [FN43] Although the life plus fifty term did not apply to pre-existing works, the renewal term for works already in existence was extended to forty-seven years for a total of seventy-five years. [FN44] Additionally, a separate category of "works made for hire" was created for corporate authors having a fixed term of seventy-five years. [FN45] The 1976 Act also eliminated the automatic reversion of rights to the author at the beginning of the renewal term, but the author could still terminate the transfer by filing notice during a five-year period between the thirty-fifth and fortieth year after transfer. [FN46]
One of the driving forces behind the adoption of the term of *371 life plus fifty years was the desire of the United States to join the Berne Convention. [FN47] The Berne Convention for the Protection of Literary and Artistic Works is the oldest international copyright agreement in existence. [FN48] The primary goal of the Berne Convention, which was established in 1909, is uniform international copyright protection. [FN49] The aim of the convention is to provide the same protection that is available to an author in his home country to the author in all member countries through a policy of reciprocity. [FN50] All signatories of the Berne Convention are required to provide a minimum term of copyright protection of life of the author plus fifty years. [FN51] Member countries may provide more protection if they wish, but may not provide less than life plus fifty years. [FN52] Obviously, the United States copyright system flourished from 1909 to 1976 without membership in the Berne Convention, and there was much debate over "changing horses in mid-stream." [FN53] The interests of international trade and "world leadership" eventually won out, and the United States joined the Berne Convention in 1988, having come into compliance with the technical requirements of membership by passage of the 1976 Act. [FN54]
*372 B. The Purpose of Copyright Law
1. The Source of Copyright
The Constitution specifically provides that "[t]he Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [FN55] This clause, commonly known as the Copyright Clause, serves both as a statement of purpose and the source of congressional power to grant copyright. [FN56] Although the Constitution explicitly grants Congress the power to govern copyright, the clause, on its face, places two important limitations on this power. First, the grant must be for a "limited time." [FN57] Therefore, a grant of copyright in perpetuity would be beyond the power of Congress. [FN58] Second, the monopoly authorized by the Constitution may only be granted "to Authors and Inventors," not to publishers, distributors, or agents. [FN59] By defining how Congress may exercise the copyright power, the Constitution attempts to ensure that Congress will not overreach the intended scope of the Copyright Clause. [FN60] The CTEA is arguably an overreaching of Congress' power to grant copyright, and thus, unconstitutional. [FN61]
2. The Framers' Intended Purpose
The Constitution states that the purpose of the Copyright Clause is to "Promote progress of Science and useful Arts ...." [FN62] This is one of the few places in the Constitution where the Framers thought it appropriate to set forth a specific purpose, and the significance *373 of this fact should not be overlooked. [FN63] Unfortunately, the drafters provided little guidance regarding how this articulated purpose was to be achieved, and all discussions on the matter were conducted in secret. [FN64] Some direction, however, may be gleaned from a report of a committee convened to "consider the most proper means of cherishing genius and useful arts through the United Stated by securing to the authors or publishers of new books their property in such works." [FN65] According to their report, the committee was "persuaded that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius." [FN66] Thus, the Framers recognized the fundamental principle that protection of a person's creative work would serve as an economic incentive for creation of such works. [FN67]
The underlying motive in such protection, however, was the benefit to the public welfare. By supporting the author's economic interests, the Framers achieved their primary purpose of advancing the "general public good" through dissemination of more literary and artistic works. [FN68] Thus, the underlying philosophy of copyright requires a balancing of two competing interests--the protection granted to authors must be broad enough to provide economic incentive, but limited enough to ultimately serve the public's interest in the widespread dissemination of creative works. [FN69]
The United States differs from many other countries because it places the public benefit of copyright as paramount to the authors' rights. France, for example, is much more author-oriented in its *374 protection. [FN70] The French Parliament has "repudiated the utilitarian concept of protecting works of authorship in order to stimulate literary and artistic activity" [FN71] and, instead, views author's rights as flowing from a bond that unites him with his creation. [FN72] In contrast, the United States views the public benefit as a greater concern than the individual author. The philosophical discord between these two rationales illuminates the difference in American copyright law as compared to the majority of foreign countries.
3. Natural Rights' Influence on Copyright
Dating back to ancient Roman times, the first person to take possession of an unclaimed object gained the "natural" ownership rights in that object. [FN73] There was a limitation on this right, however, in that certain things, such as air and water were inherently impossible to own. [FN74] One of the most well-known English proponents of natural law was John Locke. [FN75] Under the influence of philosophers such as Locke, the English natural law developed a person's property rights in the fruits of his labor. [FN76] Because of the Roman influence, however, these rights were only vested if the property was something that was inherently capable of being permanently possessed. [FN77] This view of natural rights has influenced the development of both English and American copyright law. [FN78] The obvious ambiguity with respect *375 to copyright law is whether an intangible property right is capable of permanent possession after the first publication.
In the benchmark case of Millar v. Taylor [FN79] the Court of the King's Bench recognized the natural rights of authors at common law. [FN80] In Millar, a poem purchased by the plaintiff had fallen into the public domain and had been published by the defendant. [FN81] Millar brought suit claiming that he owned the "natural" rights of the author and, even if he was no longer protected by the Statute of Anne, he still retained the common law rights in the work that existed before the enactment of the Statute. Taylor argued, however, that copyright could not be recognized as a natural right because it was intangible and was not capable of permanent possession. The Millar court found for the plaintiff, holding that copyright could be protected as a natural right. [FN82] Five years later Millar was overturned by the House of Lords in the case of Donaldson v. Beckett. [FN83] Donaldson held that copyright was not protectable as a natural right and that all common law copyrights in England were abrogated by the Statute of Anne. [FN84] Early American copyright law, however, did not adopt the rule of Donaldson. [FN85] Several of the copyright provisions adopted by the states, prior to enactment of the Constitution, referred to both economic and natural rights. [FN86] Thus, a common law copyright may have existed at the state level prior to first publication of the work. [FN87] Further mention of the natural rights influence can be seen in James Madison's Federalist Paper Number 43. [FN88] After reiterating the *376 purpose of the Copyright Clause as stated in the Constitution itself, Madison stated:
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right at common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. [FN89]
Madison's reference in the Federalist Paper to the common law copyright of England presumably was referring to the decision of Millar v. Taylor, [FN90] which was overturned by Donaldson. [FN91] In this paper, Madison stresses the benefit of the public good that will be satisfied by allowing individual benefits to authors. [FN92]
Although there may have been a common law copyright in the states prior to ratification of the Constitution, there is no federal common law copyright in the United States. [FN93] This truism was announced by the Supreme Court in the case of Wheaton v. Peters. [FN94] Wheaton involved a dispute between the Supreme Court's official reporter, Peters, and his predecessor, Wheaton. Wheaton claimed that Peters had published some "Condensed Reports" which contained several decisions reported earlier by Wheaton, thereby infringing Wheaton's statutory and common law copyright. [FN95] In a seven to two decision, the Supreme Court held that federal common law copyright did not exist in the United States and that all federal copyright protection "originated, if at all, under the acts of congress [sic]." [FN96] *377 Thus, in Wheaton, the Supreme Court made it clear that copyright law is entirely a statutory creation and that an author has no natural law right to protection of intellectual property. [FN97]
After Wheaton, other Supreme Court cases continued to balance the interests in favor of the public benefit. [FN98] The principle that "reward to the owner [is] a secondary consideration" [FN99] to the benefit received by the public has now been firmly established in American copyright law. [FN100] Justice Stewart summarized the Court's current view of the balance of copyright by stating:
The limited scope of the copyright holder's statutory *378 monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is ... the general public good. [FN101]
While the Supreme Court continuously focused on the public benefit as the ultimate goal of copyright and considered economic benefit to the author as a secondary means of achieving this goal, the CTEA clearly places the author's interests ahead of the public good.
III. THE CTEA AND ITS EFFECTS
A. The Language of the Act
The CTEA is one of the most drastic changes in copyright law since the current Copyright Act took effect in 1978. The CTEA has four basic provisions that amend various sections of the 1976 Copyright Act. [FN102] The first provision deals with term extensions, the second alters transfer rights, the third creates a new infringement exception, and the fourth, which in reality is not a true amendment, addresses division of fees. [FN103]
For legislation with such dramatic and far-reaching effects, the language of the CTEA itself appears quite mundane. The provisions of the CTEA amend the current copyright statutes by giving seemingly innocuous instructions. For example, the CTEA provides that § 302(a) of the original statute should be amended by "striking 'fifty' and inserting '70."' [FN104] If not for the title of the Act, which identifies *379 Title I as a "Copyright Term Extension," one might not comprehend the object of the Act simply by reading its plain language. [FN105] To determine the meaning of what the CTEA truly mandates, each line must be compared with the corresponding line of the previous copyright statute. This Note next examines each of the four CTEA provisions and explains the effects of the CTEA when incorporated into the context of the amended statutes.
B. Term Extension
The first major provision of the CTEA, section 102, extends the "duration of copyright" for the various categories of protected works by amending the copyright statutes. [FN106] Section 302(a) of the 1976 Act originally granted works created on or after January 1, 1978, a copyright term "of the life of the author and fifty years after the author's death." [FN107] The CTEA amended section 302(a) by replacing the word "fifty" with "70," thereby extending the term of all works created after 1977 to life of the author plus seventy years. [FN108] The same extension was made for joint works created during the time period, so that the term is now "life of the last surviving author" plus seventy years after his death. [FN109]
In the case of "Anonymous Works, Pseudonymous Works, and Works Made for Hire," the original term of protection was "seventy-five years from the year of its first publication, or a term of one hundred years from the year of its creation, whichever expires first." [FN110] Both of these alternatives were extended for twenty years by the CTEA, so that they are now protected for ninety-five years from first publication or 120 years from creation, whichever is shorter. [FN111]
Under section 303 of the 1976 Act, works created but not published or registered before January 1, 1978, were previously *380 entitled to protection until at least 2002. [FN112] Surprisingly, this term was not extended twenty years. If works falling in this category were published before the 2002 expiration, however, then they were given protection by the original statute until 2027. [FN113] The CTEA extends the term of protection upon publication to the year 2047. [FN114]
For works created before 1978 that are still in their original copyright term, section 304(a) of the 1976 Act granted protection for twenty-eight years from the date the protection was originally secured with a renewal term of forty-seven years. [FN115] Thus, authors of such works were protected for a total of seventy-five years. The CTEA replaces the "47" year renewal term with a "67" year renewal term for a total of ninety-five years of protection. [FN116] Section 304(b) of the 1976 Act gave works that were already in their renewal term on January 1, 1978, a term of protection of seventy-five years from the date the original copyright was secured. [FN117] The CTEA amended § 304(b) to state that "[a]ny copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured." [FN118]
Notably, the CTEA does not affect any works that had already fallen into the public domain at the time of its enactment. All works that were in the public domain at the end of 1997 will remain there. Any works with protection that expired in 1998 prior to the enactment of the CTEA in October are covered by the Act because, irrespective of the day of the year on which the term expires, the work does not fall into the public domain until December 31st of that year. [FN119] *381 Accordingly, works having a copyright term that expired between January 1 and October 27 of 1998, which would have fallen into the public domain on December 31, are covered by the CTEA and receive twenty years more protection.
The overall effect of section 102 of the CTEA is to extend the term of most existing copyrights, whether in the original term or the renewal term, by a period of twenty years. The next issue the Act addressed was who was to receive the benefits of the extra twenty-year period if the original author transferred his rights to someone else.
C. Transfer Rights
As noted earlier, under early United States copyright statutes, an author could assign away his renewal rights at any time during the original copyright term. [FN120] Therefore, purchasers often negotiated the purchase of the renewal rights along with the purchase of the original term. [FN121] The 1976 Act, however, allowed an author who originally assigned away his rights to terminate the transfer of rights and to reclaim the rights to his work, if he followed the necessary procedure, during the first five years of the renewal term. [FN122] This "recapture" provision of the 1976 Act allowed authors who had transferred or assigned away their rights a second chance to profit from their work if it became valuable after they made the transfer or assignment. [FN123] If the author failed to file a notice of intent to claim the renewal right during this limited time period, then he lost the rights forever, even if protection existed for many years into the future. [FN124]
With the twenty-year extension provided by the CTEA, the question arose as to whether the original author or the transferee *382 should receive the benefit of the extended time period. [FN125] The authors argued that they were entitled to a reversion of rights for the twenty-year period. [FN126] Further, many argued that the authors received payment only in consideration of the original term, and if they were not given the rights to the extended period, the transferee or assignee would essentially get a windfall. [FN127]
Congress agreed with the authors and granted them the authority to recapture their rights during the twenty-year extension period provided by the CTEA. [FN128] Section 103 of the CTEA is entitled "Termination of Transfers and Licenses Covering Extended Renewal Term." [FN129] This section makes two changes to the previous statute: one effects the termination of transfers, and the other expands the types of persons who may execute these termination rights. [FN130] Under § 304(c)(2) of the previous statute, the author could exercise his termination rights between the thirty-fifth and fortieth year of protection. [FN131] The author retains this option under the CTEA, but also receives the benefit of the extended twenty-year period if he exercises this option at the appropriate time. [FN132] If the five-year time frame for execution of the author's termination rights already passed at the time the CTEA was enacted, the author will still have the rights to the last twenty years of protection. [FN133] The author merely has to exercise this right so that it becomes effective within the first five years of the twenty-year extension period. [FN134]
*383 The second provision of section 103 of the CTEA enlarges the group of persons who may exercise termination rights. [FN135] Under § 304(c) of the original statute, termination rights could be exercised by the author if still living, or, if the author was deceased, by the widow, children, or grandchildren of the author. [FN136] The original statute made no mention of any alternative persons who could exercise termination rights if all of the persons specifically authorized were also deceased at the time renewal became available. The CTEA remedies this problem by recognizing that "[i]n the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest." [FN137]
D. A New Infringement Exception
Due to the enactment of the CTEA, no new works will fall into the public domain until the year 2018. This fact is of great concern to many institutions such as libraries and archives that depend on works in the public domain for a large part of their collections. Reproduction of works by libraries and archives is governed under § 108 of the copyright statutes. [FN138] A provision in section 104 of the CTEA makes a concession to libraries and archives that is effective for the duration of the twenty-year extension period attributable to the CTEA. [FN139]
The CTEA amends § 108(h) of the copyright act by providing that "during the last 20 years of any [copyright] ... a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, *384 for purposes of preservation, scholarship, or research," provided that the qualifying institution can prove that certain circumstances do not exist. [FN140] This section essentially provides a new exception to infringement of the owner's copyright. [FN141] This new exception will not apply if an owner of the copyright can show that any of the following conditions apply to the work:
(A) the work is subject to normal commercial exploitation
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. [FN142]
Interim rules were issued by the Copyright Office on December 30, 1998, setting forth the procedure that copyright owners should follow in order to provide notice to institutions that a work is not covered by the new infringement exception created by the CTEA. [FN143]
E. Audiovisual Works
The last major provision of the CTEA addressed herein deals with audiovisual works that are made by a conglomerate of persons, such as television productions and movies to which actors, directors, editors, and producers all contribute. Section 105 of the CTEA is not an amendment to the current statute, but rather a "suggestion" for those who own audiovisual works on how to divide the royalties they will receive as a result of the twenty-year extension period. [FN144] Section 105 of the CTEA states:
It is the sense of the Congress that copyright owners of audiovisual works for which the term of copyright protection *385 is extended by the amendments made by this title, and the screenwriters, directors, and performers of those audiovisual works, should negotiate in good faith in an effort to reach a voluntary agreement or voluntary agreements with respect to the establishment of a fund or other mechanism for the amount of remuneration to be divided among the parties for the exploitation of those audiovisual works. [FN145]
This provision is unique to our copyright law because it merely pronounces the "sense of Congress." [FN146] What exactly Congress will require to meet the "good faith" requirement of negotiations remains to be seen.
IV. SUPPORT FOR THE CTEA
A. Mickey Mouse Goes to Washington
With the economic benefits the CTEA will bring to individual songwriters and artists over the next twenty years, it is easy to see why such individuals support the passage of the Act. Individual artists, however, were not the only ones with a great deal to gain from passage of the Act. Several large conglomerates in the entertainment industry, including Disney, heavily lobbied Congress for passage of the CTEA. [FN147] Disney's copyrights on Mickey Mouse, Goofy, Pluto, and Donald Duck, as well as copyrights on hundreds of cartoons, were scheduled to expire as early as 2003, [FN148] and in Washington, money talks. Disney Chairperson, Michael Eisner, personally went to Washington to lobby for the Act, and when asked about their actions, a Disney spokesperson admitted, "We strongly indicated our support for the measure." [FN149] In fact, ten of the thirteen sponsors of the *386 bill in the House received contributions from Disney, and eight of the twelve sponsors in the Senate were given money by Disney's political action committee. [FN150] Disney also made a $20,000 donation to the National Republican Senatorial Committee two weeks after Senate Majority Leader Trent Lott signed the bill. [FN151] Other notable lobbyists included the Gershwin family, whose copyright on George Gershwin's "Rhapsody in Blue" was due to expire in 1999, [FN152] and other acclaimed artists like Bob Dylan and Quincy Jones. [FN153]
Proponents of the Act generally proffer four justifications in support of the Act. First, the extension is necessary for the United States to remain competitive in the global intellectual property market. [FN154] Second, proponents of the Act cite the need for harmonization with the life plus seventy year term adopted by the European Community. [FN155] Third, authors are living longer today and need longer terms of protection to support themselves and two generations of their descendants. [FN156] Finally, proponents contend that a longer term of protection will be a greater stimulus for creation of works. [FN157] This Note will examine each of the rationales promulgated by the Act's supporters, and in the next Part will present a rebuttal to each argument from those opposed to the Act.
B. Rationales for Support
1. Competition in the World Market
Intellectual property plays a important part in the United States export economy. [FN158] Interestingly, the United States "exports more copyrighted intellectual property than any country in the *387 world." [FN159] In 1996, intellectual property exports exceeded every other category of exports "including automotive, agriculture, and aircraft," and that same year, intellectual property accounted for "5.7 percent of the total gross domestic product." [FN160] Supporters of the Act contend that longer term extension is needed in order for the United States to protect its favorable trade balance of intellectual property. [FN161]
Senator Orrin Hatch, a staunch supporter of the CTEA, noted that "at a time when we face trade deficits in many other areas, we cannot afford to abandon twenty years' worth of valuable overseas protection now available to our creators and copyright owners." [FN162] Senator Hatch observed that "[A] merica stands to lose a significant part of its international trading advantage if our copyright laws do not keep pace with emerging international standards." [FN163]
This assertion flows from the perception that, because a large percentage of our intellectual property exports are to European nations, we must conform to the copyright term adopted by the European Community in order to maintain our chief position in the global intellectual property arena. [FN164] In Senator Hatch's view, "[t]he need to conform the duration of U.S. copyright ... is increasingly pressing in order to provide certainty and simplicity in international business dealings. Even more important, a change in the basis of our copyright term would place the United States in the forefront of the international copyright community." [FN165]
2. Harmonization with the European Community Copyright Term
The copyright term of all countries in the European Union is now life of the author plus seventy years. [FN166] In 1993, the European Council issued an order (EC directive) to its member countries requiring them to adopt the life plus seventy year term by July 1, *388 1995, and all have complied. [FN167] A provision in the EC directive requires member countries to measure copyrights of foreign works by "the rule of the shorter term." [FN168] Under this provision, members of the EC must give copyright protection to foreign works (defined to be works of a third party by the Berne Convention) for the shorter of the following: 1) the term of protection granted in the home country or 2) the term of protection granted by the EC. [FN169] In other words, works created in countries that have copyright terms shorter than that of the EC will only be protected in the EC for the time that they are protected in their country of origin.
Therefore, United States copyright owners supported passage of the CTEA, so that the United States copyright term would match that of the European Community. Songwriter Don Henley testified before the House that the discrepancy in copyright terms would give Europeans "essentially a twenty-year free ride ... they [could] use and abuse our works for free, while we have to pay for the use of theirs." [FN170] Proponents of the Act argued that without passage of the CTEA, American authors would be discriminated against in European countries because our "creators [would] have twenty years less protection than their European counterparts." [FN171] Copyright owners argue that without the CTEA, the "rule of the shorter term" in Europe where American works are extremely popular would cause them to lose vast amounts of revenue dollars. [FN172]
*389 3. Longevity as a Rationale for Extension
Longevity provides a rationale for term extension in two respects. First, authors are living longer and thus feel that they need a longer term of protection. Second, as a result of recent technological advances, the commercial longevity of works is much longer than it was in previous decades.
The first argument based on longevity in favor of term extension is that the life plus fifty term was not sufficiently long enough to protect the author and two succeeding generations of his heirs. [FN173] Many authors and artists consider their works to be a "valuable resource to be passed on to their children and through them into the succeeding generation." [FN174] Furthermore, copyright owners assert that the ability to leave a legacy behind for their children and grandchildren is as strong an incentive for creation as is any short term economic benefit to themselves. [FN175] A converse to this theory is that if copyright provides insufficient protection to allow authors to support their families, then there would be less incentive to choose an occupation in a creative field. [FN176] Supporters of the CTEA also argue that a longer term of protection is needed because people are living longer and choosing to have children later in life than in the past. [FN177]
The second longevity argument is that technological innovations have made older works commercially viable again and have extended the amount of time that new works may be exploited. [FN178] As a result of technological advances such as videocassettes, cable television, the Internet, and digital imaging capability, authors desire a longer term of protection so that they may enjoy the full financial benefits given to them as part of the "bargain" in the Copyright Clause. [FN179] Marybeth Peters, the Register of Copyrights, noted in testimony to the Senate Judiciary Committee, *390 "[T]echnological developments clearly have extended the commercial life of copyrighted works .... The question is who should benefit from these increased commercial uses?" [FN180] Authors argued that depriving them of the benefits of their labor by allowing these commercially viable works to fall into the public domain would cause "great hardship" to themselves and to their families. [FN181]
4. Incentive for Creativity
The final rationale cited by supporters of the CTEA is that a longer term of protection would serve as a greater incentive for creation of artistic and literary works. [FN182] They contend that the common thread among all of the previously stated rationales is the resultant increase in incentive provided to authors. [FN183] Proponents of the CTEA reason that if the grant of copyright monopoly is an incentive to create, then expansion of the monopoly for a longer period of time would inherently make creation more appealing, and thereby marginally increase creativity. [FN184] Some authorities go so far as to propose that "copyright protection should be expanded unless the extent of such protection would hamper creativity or the wide dissemination of works." [FN185]
*391 V. OPPOSITION TO THE CTEA
A. Who Opposed the Act
A movement in opposition to passage of the CTEA was led by Professor Dennis Karjala of Arizona State University, who was joined by many academicians, educators, and historians. [FN186] Previous bills having the same effect as that of the CTEA were defeated; however, the efforts of the opposition in this instance were to no avail. [FN187]
Those opposed to the Act identified flaws in the arguments presented by the Act's supporters and additionally questioned the constitutionality of the Act on several grounds. [FN188] According to some, the Act fails to serve the purpose set forth in the specific language of the Copyright Clause and is arguably a violation of the "limited time" provision therein. [FN189] The opposition's main concern is the damage that the copyright term extension will cause to the public domain. [FN190] A case, Eldred v. Reno, [FN191] has already been filed in district court challenging the constitutionality of the Act as it currently reads. [FN192] In the "first round" of this battle, the United States District Court for the District of Columbia granted summary judgment to the government finding the CTEA to be within the discretion of Congress and, therefore, constitutional. [FN193] This initial ruling, however, is currently on appeal. Because recent Supreme Court cases have recognized the public welfare as the primary purpose of copyright, it is conceivable, *392 at least to this Author, that on appeal the Court may side with the opposition and declare the Act unconstitutional, or at least require some revisions.
B. The Opposition Responds to the Supporters' Rationales
1. Competition in the World Market
The proponent's first justification for support of the Act is that term extension is needed to maintain our positive trade balance. [FN194] In response to this rationale, the opposition argues that it is the continued demand for United States works (i.e., the number of exports compared with the number of imports) that will determine our trade balance and that, in reality, term extension has no effect on the demand for United States works. [FN195] For example, "[i]f French films are under copyright for ninety-five years in the U.S., and American films for ninety-five years in France, the balance of trade due to copyright still depends on the relative demand in each country, during the ninety-five year term, for the other country's films." [FN196] While it is more probable that United States' films will be in demand in France longer than French films will be in demand in America, this is merely conjecture and does not justify a twenty-year term extension. [FN197] Assuming that an American film would maintain popularity for a term longer than the seventy-five years granted by the 1976 Act, the place of popularity would most likely be the United States rather than a foreign country, so this extra twenty years of protection would doubtfully effect the export of American films ninety-five years in the future. [FN198]
*393 2. Harmonization with the European Community Copyright Term
Supporters also argue that term extension will "harmonize" the United States copyright term with the European term. [FN199] This justification, however, is true only for the life plus seventy term given to works created after January 1, 1978, [FN200] and there would still be "a multitude of differences in other areas of United States and European copyright law that would not be reconciled." [FN201] In fact, many opponents aver that true harmonization with Europe is an impossible goal. [FN202] Some notable differences would remain in the terms granted to anonymous and pseudonymous works [FN203] and to works made for hire. [FN204]
Another major difference lies in the two powers' copyright philosophy; Europe follows the moral ("natural") rights theory while the United States does not. "In Europe an author's rights to create and to publish, or not, in any form desired; to paternity; to modify and to prevent deformation; to prohibit excessive criticism; and to prohibit any other attacks on the personality of the creator, are almost universally recognized and may exist in perpetuity." [FN205] The United States, while required to recognize a limited concept of moral rights *394 in order to join the Berne Convention, [FN206] holds that an author has no natural rights in his work after first publication. [FN207]
A final significant difference in American and European copyright is that Europe does not recognize the "fair use" doctrine that exists in America. [FN208] In reality, term extension does little to truly "harmonize" United States and European copyright law, and this rationale, therefore, does not support term extension.
3. Longevity as a Rationale for Extension
Proponents of the CTEA claim that term extension is necessary for authors to support themselves and two generations of their heirs. [FN209] There has never been, however, any past or current expressed intention in the copyright law of the United States to support two generations of authors' descendants. [FN210] Professor Karjala makes the valid point that, "[w]hile one can understand the desire of authors to provide a substantial estate to their immediate offspring, one must question the economic efficiency of a system that ... seeks to grant an easy flow of income to a group of people ... the actual *395 author may never have known." [FN211] The professor goes on to say that "[t]he descendants themselves would probably be better off, and certainly the general public would be better off, if [these distant heirs] were to engage in some productive activity." [FN212] Proponents also make the argument that longer term extensions are needed because people are living longer and having children later in life. [FN213] The copyright term already contains built-in compensation for longer life expectancies by providing protection for the life of the author plus a number of years. [FN214] Common sense tells us that regardless of how long the author lives, the work will still receive protection for fixed number of years, currently seventy under the CTEA, which will not begin to run until the author's death. Whether the author dies at the age of seventy-five or lives another twenty-five years past the normal life expectancy, the copyright term is automatically extended by the author's longer lifetime. [FN215] Thus, life expectancy is not a legitimate reason for term extension in light of the fact that there is no right to support two generations of heirs. [FN216]
In response to the argument that term extension is needed because new technology has made works commercially viable for a longer period of time, [FN217] opponents point out that copyright protection is a bargained agreement between the government and the creators. [FN218] Copyright protection is not an inherent right, but a statutory creation of the government. [FN219] The authors of works now in existence created their works with the understanding that the pieces would not be protected indefinitely, and the authors constructively agreed to this bargain by continuing to produce protected works under the former statutes. [FN220] Professor Karjala explains, "It is not 'unfair' that a work *396 enter the public domain 50 years after the death of its author. Rather, that is an integral part of the social bargain on which our highly successful system has always been based." [FN221]
4. Incentive for Creativity
The proponents final rationale is that term extension will serve as a greater incentive for authors to create works. [FN222] First, with respect to works already in existence, the twenty-year term extension obviously cannot serve as an incentive to create something that has already been created. [FN223] The retroactive application of the term extension to works already in existence also raises a constitutional issue, which will be discussed later in this Note. [FN224] Second, with respect to creation of future works, it is questionable whether a term extension will truly encourage authors to produce something that they would not have produced without the twenty-year CTEA extension. [FN225] Common sense once again dictates that "a longer term does not automatically drive creative authors to work harder or longer to produce works." [FN226] As Macaulay observed long ago, "[A]n advantage that is to be enjoyed more than half a century after we are all dead, by somebody, we know not by whom, perhaps somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action." [FN227] Assuming, however, for the sake of argument, that the twenty-year extension does provide an incentive to authors, that benefit must be weighed against the harm to the public by the term extension. [FN228] Overall, the benefit of term extension, if any, in the form of increased incentive, is greatly outweighed by the harm to the *397 public "in the form of higher royalties and an impoverished public domain." [FN229]
C. Other Problems with the CTEA
1. Harm to the Public Domain
Once copyright protection expires on a work, the work becomes part of the public domain. Works in the public domain may be used by all without payment of royalties or restrictions on use. The public domain serves as a wealth of creative material that may be reproduced, sampled, altered, or incorporated into other works by artists, resulting in the creation of new and innovative works. [FN230] Decreasing the amount of material in the public domain shrinks the amount of material on which new artists and writers have to build, thus causing a decrease in the amount of new work that will ultimately be produced. [FN231]
Opponents argue that copyright term extension is contradictory to "the public interest in maintaining a rich public domain." [FN232] Not only do copyrighted works cost more to reproduce than those in the public domain, copyrighted works are generally less available to the public at large as a result of the copyright owner's monopoly. [FN233] Consumers, however, are not the only ones who will pay the price for a decrease in the public domain, so will "record companies who include public domain songs in budget albums to avoid mechanical royalty payments," companies who use public domain music in "television film scores and advertising jingles," and "music publishers who use public domain songs in many folios and instruction series." [FN234] Also, church hymnals rely on songs that are *398 part of the public domain. [FN235] Small groups, such as high school bands and local orchestras, perform public domain music because they cannot afford the high costs of performing works still protected by copyright. [FN236] Another cost of term extension, seldom recognized by proponents, is the unknown number of works that are never produced because of the cost for a new artist to negotiate a license. [FN237] Due to passage of the CTEA, works created after 1922 will not fall into the public domain for another twenty years, which means that the public domain will stay at its current size until 2018. [FN238] If history repeats itself, the owners of these copyrights will lobby Congress for a third term extension in 2018, just as they did for the first time in the 1970s and again in the 1990s. [FN239] In addition to the damage caused to the public domain, there are other problems with the CTEA as enacted.
2. Violation of the Public Trust Doctrine
Among its other assertions, the complaint filed in federal court seeking to have the CTEA declared unconstitutional alleges that the Act is a violation of the public trust doctrine. [FN240] This doctrine essentially holds that "the government may not transfer the public property of a commons into private hands in the absence of any public benefit." [FN241] The public trust doctrine traditionally applied to real property, prohibiting the government from conveying rights in commonly owned attributes such as air and bodies of water, like the *399 Mississippi River. [FN242] In other words "the government holds 'inherently public property' in trust and has only limited abilities to divest the public of its trust rights." [FN243] For example, the government may grant licenses conveying fishing rights or limited ownership rights for the use of the Mississippi River, but it cannot sell the entire river outright, because to do so would be a violation of the public trust doctrine. [FN244]
Opponents of the CTEA argue that the retroactive grant of a term extension to copyrights already in existence is a violation of the public trust doctrine. [FN245] They argue the public has an interest in works that are coming into the public domain and that extending the copyright term is a taking of common property without any benefit to the public. This taking, they argue, is in violation of the public trust doctrine. [FN246] Secondly, opponents argue that cyberspace is "inherently public property" and the government violated the public trust by taking from the public and returning to private individuals those materials which would have entered the public domain, and thus would have been available via the internet, if not for the CTEA. [FN247] Concerns over public trust, however, pale in comparison to constitutional concerns raised by the Act as currently in force.
3. Constitutional Problems with the CTEA
The opponents of the CTEA raise two constitutional issues. First, some argue that the Act does not promote the purpose set forth in the Copyright Clause of the Constitution. Second, the Act arguably violates the "limited time" language of the clause.
The Constitution, as previously discussed, clearly states that *400 the purpose of copyright is to "promote the Progress of the Science and the useful Arts." [FN248] Opponents argue that the Act as written fails to meet this stated purpose when extending the term of works already in existence. [FN249] Copyright law in the United States was meant to balance the economic interest of the individual creator with the public benefit gained by the work falling into the public domain. [FN250] Because there can be no added incentive to create works that already exist, retroactive copyright extension fails to serve as an incentive to creation and thus cannot meet the purpose of the Copyright Clause. [FN251] Such a "wholesale and uncompensated extension of copyrights on works already created ... exceeds Congress's power under the Copyright Clause" and the retroactive portion of the Act at a minimum should therefore be declared unconstitutional. [FN252] Although there is no case law on point regarding Congress's copyright power, the Supreme Court's view of Congress's patent power, which is derived from the same constitutional clause, can be applied by analogy. [FN253] In the case of Graham v. John Deere Co., [FN254] the Supreme Court stated:
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 ... 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. [FN255]
*401 Analogizing this philosophy to the public domain of copyright, it is conceivable that the Supreme Court could find the CTEA unconstitutional as an overreaching of Congressional power.
The second constitutional issue involves the grant of a monopoly for a "limited time." While there is no doubt that the life of the author plus seventy years is a finite number, and therefore, technically a "limited time," opponents of the Act argue that the limited time language must be read with the Framers' intent in mind. [FN256] The Framers' intent was to give authors the amount of copyright needed to serve as an incentive for creation and no longer. [FN257] Therefore, the issue is how long is a "limited time?" A grant of protection in perpetuity would be a violation of the clause, but would any finite term? For example, would a grant of a million years satisfy the limited time language? [FN258] There is little case law interpreting the limited time provision, but dicta in United Christian Scientists v. Christian Scientists Board of Directors [FN259] addressed a copyright of approximately 150 years. [FN260] The court stated that this copyright term, "[e]ven if not construed as a copyright in perpetuity,  purports to confer rights of unprecedented duration." [FN261] This case, however, was resolved on other grounds, and the copyright issue was not determinative. [FN262]
Opponents of the Act argue that the copyright terms now in existence violate the "limited time" clause as it was intended by the Founding Fathers when they wrote the Constitution. [FN263] The Framers originally intended copyright protection to last for only fourteen years, with a possible fourteen year renewal term. [FN264] Although technically meeting the limited time requirement, the terms created by the CTEA are "a far cry from the limitations once envisioned by *402 the authors of the Constitution." [FN265]
There are many problems with the CTEA, including some constitutional issues. At the very least, Congress must eliminate the retroactive application of the Act for it to be constitutional. Even then, the CTEA still fails to achieve the purpose stated in the Copyright Clause. The Supreme Court may have a chance to rule on the constitutionality of the Act in Eldred, and if so, they should provide some guidance on how long a "limited time" is for copyright protection. In order to avoid future debates over term extension, Congress should include a "rule of the shorter term" provision in the CTEA. Protection would thereby be truly reciprocal under the Berne Convention, and foreign works would not receive longer protection than domestic works. Obviously, the Supreme Court must intervene to ensure the proper parameters of copyright protection because special interest groups and large conglomerates in the entertainment industry have persuaded Congress to ignore the Framers intended purpose of copyright protection in the United States.
Our copyright philosophy should not be altered to favor the moral rights approach of other countries. As professor Peter Jaszi explained:
[I]t is the uniqueness of American copyright law, our retention of the work-for-hire doctrine, our rejection of broadly applicable moral rights, and our special devotion over time to the maintenance of the public domain that helps to account for the extraordinary competitive success for American works in the international marketplace. [FN266]
The intrusion on the public domain caused by the CTEA is not justified by the benefits that will be received by individual authors and large corporations. [FN267]
[FNa1]. J.D., The University of Memphis, Cecil C. Humphreys School of Law; B.S., Chemistry, Tennessee Technological University. Admitted to Practice in Tennessee and before the United States Patent and Trademark Office.
[FN1]. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (to be codified at 17 U.S.C. § § 108, 203, 301-304).
[FN2]. See infra Part III.B.
[FN3]. See John Horn, Real World: Mickey Mouse's First Cartoon Could Soon Enter Public Domain, ASSOCIATED PRESS, Feb. 4, 1998, available in 1998 WL 6640342.
[FN4]. See Golden Eggs, WASH. POST, Apr. 27, 1998, at A16.
[FN5]. See infra Part V.C.3.
[FN6]. See Berkman Center for Internet and Society, Constitutional Framers' Intent (last modified Apr. 11, 1999)