The Coming of Copyright Perpetuity
January 16, 2003
In 1998 Congress was the scene of a battle over public
domain, the public right of common, free and unrestricted
use of artistic works whose copyright has expired.
Corporations like Disney, organizations like the Motion
Picture Association of America, and dead artists' families
wanted to extend copyright. Advocates of public domain
wanted to leave copyright protection as it was, which would
have allowed many early 20th-century works, including
corporate creations like Mickey Mouse, to slip into the
public domain. The copyright owners won, and yesterday they
won again when the Supreme Court, by a vote of 7 to 2,
decided that Congress was within its constitutional rights
when it extended copyright. The court's decision may make
constitutional sense, but it does not serve the public
Under that 1998 act, copyright now extends for the life of
an artist plus 70 years. Copyrights owned by corporations
run for 95 years. Since the Constitution grants Congress
the right to authorize copyright for "limited times," even
the opponents of an extended term were not hopeful that the
Supreme Court would rule otherwise. This decision almost
certainly prepares the way for more bad copyright extension
laws in the future. Congress has lengthened copyright 11
times in the past 40 years.
Artists naturally deserve to hold a property interest in
their work, and so do the corporate owners of copyright.
But the public has an equally strong interest in seeing
copyright lapse after a time, returning works to the public
domain - the great democratic seedbed of artistic creation
- where they can be used without paying royalties.
In effect, the Supreme Court's decision makes it likely
that we are seeing the beginning of the end of public
domain and the birth of copyright perpetuity. Public domain
has been a grand experiment, one that should not be allowed
to die. The ability to draw freely on the entire creative
output of humanity is one of the reasons we live in a time
of such fruitful creative ferment.