High court weighs best copyright length

Back when the US Constitution was still a work in progress, the framers of that document recognized the importance of encouraging innovative thought.

So they gave Congress the power to enact a copyright law to protect the rights of authors long enough for them to profit from their creativity and effort.

But by specifying in the Constitution itself that copyright protection must apply only for "limited times," the Founding Fathers sought to strike a balance between private profit and the promotion of a vibrant public domain of ideas and creative works.

Wednesday, in a potential landmark case, the US Supreme Court begins examining what the Framers must have meant by the term "limited times," and whether Congress violated that constitutional mandate in 1998 when all existing copyrights were extended by 20 years.

There is much more at stake in the case than simply how long Disney can retain exclusive use of Mickey Mouse and Donald Duck, or the number of years the heirs of Dr. Seuss can keep his famous Cat in the Hat off mass-produced T-shirts promoting dubious causes.

In broad terms, what is at issue in Eldred v. Ashcroft is the extent to which the government may grant authors monopolistic power to control the future uses of their music, film, art, literature, and other creations.

On the other side of the issue are those, like Internet archivist and publisher Eric Eldred, who wish to gain free access to this body of work to facilitate their own creative and commercial exploitation. They say that when the Founding Fathers created the copyright monopoly the privilege came with a price attached – that the creative works would soon flow into the public domain and be available to everyone.

"There is no mystery about what the Framers had in mind for the duration of copyright – they expected it would be short," writes Lawrence Lessig, a professor at Stanford Law School, in his brief to the court challenging Congress's 1998 extension.

Arguing for the copyright laws, Solicitor General Theodore Olson says in his brief that Congress decided to grant the extension to copyright holders rather than "allow indiscriminate exploitation by public domain copyists."

Mr. Olson adds, "The Constitution assigns such policy choices to Congress, not the courts."

The constitutional provision at issue grants Congress 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 respective writings and discoveries."

In 1790, "limited times" meant no more than 28 years. By 1976, Congress had increased copyright coverage to extend over the lifetime of the author plus an extra 50 years. And then in 1998, Congress extended copyright coverage again by 20 more years.

Does this retroactive extension comply with the constitutional mandate that copyright protection be for only "limited times?"

"As is the case with so many other issues that have arisen under a living and growing Constitution, there is no way the framers could have contemplated electronic media, television, or motion pictures," says Karl ZoBell, a copyright lawyer in San Diego who filed a friend-of-the-court brief in the case supporting copyright holders.

In the 18th century, the publishing life of literary works may have been no more than 15 years, Mr. ZoBell says. Under current technology, creative works can not only be preserved for longer periods but they can be spun off by the original author into other new creative endeavors.

Mr. ZoBell represents the heirs of three authors of classic children's books, E.B. White, author of "Stuart Little" and "Charlotte's Web;" Dr. Seuss (aka Ted Geisel), author of the "Cat in the Hat" books; and Ludwig Bemelmans, writer of the "Madeline" books. "The owners have spent a lot of time, effort, and money protecting the quality of the images," he says. "They don't allow the printing of T-shirts showing the Cat in the Hat smoking marijuana or Madeline behaving improperly. And they have been tried," ZoBell says.

"If you want to buy those books for your children, they are available. There is nothing the public can't have, although there is some price to be paid," ZoBell says. "Mr. Eldred would like you to get them through him instead of through Random House or some other publisher."

Mr. Lessig and other critics say Congress has lost sight of the framers' intent of balancing a vibrant public domain against the importance of rewarding and encouraging creative expression by individual authors.

By extending the terms of all existing copyrights retroactively in 1998 – rather than simply applying it to new works – Congress has violated both the copyright clause of the Constitution and the free-speech mandate of the First Amendment, they say.

"Whatever 'limited time' means, it wasn't the framers' intention to extend and extend and extend the copyright term," says Jennifer Urban of the Samuelson Law, Technology and Public Policy Clinic at Boalt Hall School of Law in Berkeley, Calif. "For practical purposes the public never gets the benefit of the bargain."