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Summary:

In 1998, Congress agreed to grant another 20 years of copyright protection to every film, book and song in the land. Now, the laws are under review once again — and legal scholars are starting a pool on whether there another extension will take place.

Congress is conducting a review of America’s copyright laws, a process that could shape culture and creativity for a generation or more. While the process has so far focused on how to stop piracy, some are asking if Hollywood will try to extend copyright terms once again in order to prevent works like Mickey Mouse from falling into the public domain.

The question came up on the Volokh Conspiracy, a blog popular with legal types, where a law prof proposed starting a pool on whether Congress would extend copyright terms by another 20 years.

While the larger debate has been relatively quiet so far, it could flare up again as it did in the late 1990s when the last 20-year extension led to a bitter legal fight between scholars and librarians on one hand, and Hollywood and the music industry on the other. The entertainment industry ultimately prevailed at the U.S. Supreme Court, which ruled 7-2 that copyright laws stretching more than a century were not unconstitutional.

This time around, it’s unclear whether Disney and others will push for another law similar to the 1998 one that critics derided as “The Mickey Mouse Protection Act.” But the same issue — the impending arrival of Mickey’s Steamboat Willie movie into the public domain — still remains, leading cynics to predict that Hollywood will lobby for another extension.

“Copyright will be extended indefinitely, at least in the U.S., so long as there is large corporate money involved,” wrote one commenter on the Volokh blog. Skeptics have also pointed to the Supreme Court’s recent decision to let Congress remove works like “Peter and the Wolf” from the public domain as evidence that copyright has no limits.

Others aren’t so sure. That’s because, in the current copyright debate, the ground has shifted from where it was in 1998. Specifically:

  • Tech companies like Google, which are typically in favor of an expanded public domain, have increased their lobbying clout in Washington
  • The moral and economic case for longer copyright terms is being undercut by evidence that longer terms do not lead to more book sales — but instead, as this Atlantic piece shows, causes books to simply become unavailable.
  • The growth of institutions like the Internet Archive, Google Books and the Digital Public Library of America has led to a new public awareness of the importance of public domain works
  • Conservatives — who historically have supported any copyright expansion in the name of property rights — are becoming more skeptical of expansive intellectual property rights as a form of market distortion and a sop to the Democratic Party’s supporters in the entertainment industry

So what will happen? It’s too soon to say. Disney and others may fight tooth-and-nail to keep properties like Mickey Mouse under copyright (note that such characters will be covered, in any event, by trademark laws), but they may also decide to keep their powder dry in order to advocate instead for tougher enforcement of existing copyright. So far, that this is the tack they appear to be taking; most of the discussion before Congress has centered on piracy and sites that profit from unauthorized file-sharing.

My own take is that a sensible copyright policy could arise if, on one hand, corporate copyright holders agreed to shorten copyright terms while, on the other, piracy apologists agreed that some measures of enforcement are justified.

Finally, here’s a site that shows the works — including Lady & the Tramp and Why Johnny Can’t Read — that would be in the public domain were it not for repeated copyright extensions. Here’s what actually came into public domain in 2013.

  1. There is a very simple solution to this. First 20 years automatic and free. Then each additional 20 years costs an escalating fee. And that fee should be very high for entities seeking an extension out to 100+ years. Of course if an entity is seeking that kind of extension then they can surely afford the fee.

    Now everyone wins. Disney can keep Mickey, but they pay a lot for the privilege. No more orphan works since they won’t get the extension fee paid. The music industry and photographers can pay moderate fees to keep music 40 or 60 years.

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    1. That’s a very smart proposal, jonsmirl. I’m familiar with calls for a registration requirement to solve the orphan works, but escalating fees for longer terms if a very good idea.

      Under such a scheme, would the fees be the same for any owner — ie would they be the same for individuals as corporate authors? And would there be any sort of transfer tax – ie if HBO wanted to take over the copyright of Mickey Mouse, should their hypothetical extension fee be more than Disney’s?

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      1. The fees could be anything that can be agreed to by Congress. They could probably use them as a way to get more government revenue. The increases should be very steep. Something like $1,000 for the first renewal, $10,000 for the second, $100,000 for the third. $1,000,000 for the forth. Then maybe $5M each from then on. Plus an inflation adjustment clause.

        Note that Disney is going to have to do this over multiple movies, books, etc. These renewals are for 20 year terms so $1,000 is only $50/yr. Long term the idea is to put Disney in a place of needing to pay $100M/year or so to hang onto their characters. That’s their penalty for keeping them out of the public domain.

        Congress probably wouldn’t agree, but I’d give the fees to the Library of Congress to be used for preservation efforts.

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  2. Patrick Daniel O'Neill Thursday, August 22, 2013

    There’s another issue here as well…the US is now a signatory to the Berne copyright treaty and cannot make any changes to copyright law that violate the terms of that agreement.

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  3. Judith Dornstein Friday, August 23, 2013

    Copyright was never meant to protect a work into infinity – which is what the above renewal fee proposal is really proposing. And it probably violates the Berne Convention anyway.

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  4. As part of a solution for copyright enforcement in a digital world that is rapidly devouring right’s holder compensation, clearly we need an overhaul of the current laws both from a perspective of copyright regulation and corporate adherence to the rules.

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  5. The last copyright extension yet again evidences how Special Interest Groups (in this example publishers) are able to buy support in Congress. The well of money coming out of Disney and other media conglomerates was just too irresistible to those who represent us in Washington. I am left to wonder if Disney searched down the heirs public domain works such as “Cinderalla”, “Beauty and The Beast”, “Snow White”, etc….. from whom they profited handsomely. Surely, The Brothers Grimm’s attorney can be tracked down in some medieval town in Germany. When the Copyright Term Extension Act was passed by Congress, it was hardly published in the media. Certainly ABC didn’t produce a John Stoessel investigative report, but oops – I forgot Disney owns ABC. Right about now, the pigs are gathering at the trough for election contributions, and securing promises of job, board memberships and speaking engagement fees. But just to prove our politicos are sharper than you might think at first glance, the next Extension Act will just be for 2 years. That way they can keep sharing the wealth and milk Mickey and Donald every election cycle. What say you?

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