Supreme Court to rule on 20-year copyright extension

In a case initiated by an internet publisher, the U.S. Supreme Court agreed Feb. 19 to review whether Congress has exercised too much authority in extending copyright protection for two additional decades. The outcome could have significant implications for schools and libraries. At stake is the online availability of hundreds of thousands of books, songs, and movies.

The nonprofit publisher and other plaintiffs argue that Congress sided too heavily with writers and other creators when it passed a law in 1998 retroactively extending copyright terms by 20 years. If the extension stands, older Disney movies and other works that might have entered the public domain soon—and thus been freely and legally available over the internet or in digital libraries—will continue to receive copyright protections for at least two more decades.

Though the case isn’t limited to the online world, it could determine “if the internet really transforms the ways in which information gets to people and the things they can do with it once they have it,” said Jonathan Zittrain, a Harvard Law School professor representing the plaintiffs.

For educators, the high court’s ruling could affect the availability of resources for classroom use.

“The longer it takes for works to go into the public domain, the longer it takes for [them] to be available for public use,” including education, said Miriam Nisbet, legislative counsel for the American Library Association, which filed a brief urging the Supreme Court to consider the case.

The Constitution authorizes Congress to give authors and inventors the exclusive right to their works for a “limited” time, but the length of the exclusive period has gotten lengthier as time has past.

In 1790, copyrights lasted 14 years. With the 1998 extension, the period is now 70 years after the death of the creator, if the person is known. Works owned by corporations are protected for 95 years.

The 1998 copyright changes, known as the Sonny Bono Copyright Term Extension Act, bring U.S. rules in line with those in the European Union.

Paul Aiken, executive director of the Authors Guild, which represents published book authors, said writers need to be compensated or “they will be forced to turn to other lines of work.”

But critics of the extension say the copyright clause was written into the Constitution not only to reward creators, but also to make the works available for the public to exchange and develop into new works. Repeated extensions, they say, mean copyrights aren’t truly limited.

Congress extended the term of copyright 11 times in the past century, said law professor Mark Lemley, who represents the nonprofit Internet Archive, which is trying to build a digital library.

Lemley said copies of old books, movies, and sound recordings are being lost before they can be archived electronically. He said 10,027 books were published in 1930—but as of last year, all but 174 of them were out of print.

If it weren’t for the extension, “digital archives could inexpensively make the other 9,853 books published in 1930 available to the reading public starting in 2005,” Lemley wrote. But if the law still stands, “we must continue to wait, perhaps eternally, while works disappear and opportunities vanish.”

Siva Vaidhyanathan, professor of information studies at the University of Wisconsin at Madison, said online publishers would love to make out-of-print works they don’t own available over the internet.

But they can’t legally do so as long as Congress keeps extending copyrights.

The lead plaintiff in the case is Eric Eldred, who runs an organization called Eldritch Press that places public-domain materials online.

Other plaintiffs include a company that reprints books that have entered the public domain and a choir director who buys inexpensive sheet music in the public domain.

Lower courts ruled against them. The Bush administration, in its role as defendant of federal law, had urged the court to reject the groups’ appeal.

Jack Valenti, president of the Motion Picture Association of America, cited a need for parity with the European Union and expressed confidence the high court will affirm “the wisdom of the Congress.”

The case is Eldred v. Ashcroft, 01-618. A decision is expected sometime this spring.


Plaintiffs’ site with court documents

American Library Association

Motion Picture Association of America

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