Protecting Mickey Mouse at Art's Expense
NYT Op-Ed January 18, 2003


The Supreme Court decided this week that the Constitution
grants Congress an essentially unreviewable discretion to
set the lengths of copyright protections however long it
wants, and even to extend them.

While the court was skeptical about the wisdom of the
extension, seven justices believed it was not their role to
second-guess "the First Branch," as Justice Ruth Bader
Ginsburg put it. As I argued the opposite before the court
for my clients, a group of creators and publishers who
depend on public domain works, I won't say I agree. But
there is something admirable in the court acknowledging and
respecting limits on its own power.

Still, missing from the opinion was any justification for
perhaps the most damaging part of Congress's decision to
extend existing copyrights for 20 years: the extension
unnecessarily stifles freedom of expression by preventing
the artistic and educational use even of content that no
longer has any commercial value. As one dissenter, Justice
Steven G. Breyer, estimated, only 2 percent of the work
copyrighted between 1923 and 1942 continues to be
commercially exploited (for example, the early Mickey Mouse
movies, whose eminent entry into the public domain prompted
Congress to act in the first place).

But to protect that tiny proportion, the remaining
copyrighted works will stay locked up for another
generation. Thus a museum that wants to produce an Internet
exhibition about the New Deal will still need to find the
copyright holders of any pictures or sound it wants to
include. Or archives that want to release out-of-print
books will still need to track down copyright holders of
works that are almost a century old.

This is a problem that the First Branch could fix without
compromising any of the legitimate rights protected by the
copyright extension act. The trick is a technique to move
content that is no longer commercially exploited into the
public domain, while protecting work that has continuing
commercial value. The answer is suggested from the law
governing patents.

Patent holders have to pay a fee every few years to
maintain their patents. The same principle could be applied
to copyright. Imagine requiring copyright holders to pay a
tax 50 years after a work was published. The tax should be
very small, maybe $50 a work. And when the tax was paid,
the government would record that fact, including the name
of the copyright holder paying the tax. That way artists
and others who want to use a work would continue to have an
easy way to identify the current copyright owner. But if a
copyright owner fails to pay the tax for three years in a
row, then the work will enter the public domain. Anyone
would then be free to build upon and cultivate that part of
our culture as he sees fit.

None of the supporters of the copyright extension act
should have any complaint about such a provision. All of
them argued that they needed the term increased so they
could continue to get revenue from their works that
supported their other artistic endeavors. But if a work is
not earning any commercial return, then the extension is
pointless. Of course, there may be people who want to keep
their work from passing into the public domain, even if it
is not commercially exploited. That's why the tax should be
low, and should apply only to work that was published. The
privacy and control that copyright law gives authors would
thus be assured for as long as Congress deems proper.

This compromise, of course, puts much less work into the
public domain than my clients believed that the framers of
the Constitution envisioned. But it would nonetheless make
available an extraordinary amount of material. If Congress
is listening to the frustration that the court's decision
has created, this would be a simple and effective way for
the First Branch to respond.

Lawrence Lessig is a professor at Stanford Law