Law extending copyright constitutional, says US Supreme Court

The Sonny Bono Copyright Term Extension Act was passed in 1998. Named after the late singer-Congressman, the law extended the term of copyright protection by 20 years. Works by corporations were given protection for 95 years from the date of creation.

The legislation soon became known as the Mickey Mouse Act because Disney had pushed to have it passed before the expiry of its copyright in Mickey Mouse expired in 2003. As the law currently stands, Mickey Mouse is protected until 2023.

The law brought the US position largely into line with that in the EU. By a Directive of 1993, copyright protection became, for most works, 70 years from the date of death of the author and, for corporations, 70 years from the start of the year in which the work was created.

The case against the law was brought by Eric Eldred, a non-profit publisher, who wanted to offer the text of out-of-print books on his web site. The lawsuit, against the US Attorney General, was supported by a number of internet publishers, consumer bodies and academics.

It asserted that Congress overstepped its authority and violated the Constitution's principle of free speech by extending the protection of copyright.

The US Constitution, the lawsuit claimed, gives Congress the power to grant copyright protection for "limited times", but Congress extended copyrights 11 times in the past 40 years. This, it was argued, "rendered meaningless" the Constitution's "plain and express intent to restrict the duration of monopolies over speech."

It was argued that the law effectively made copyrights perpetual, inhibiting intellectual and artistic productivity.

Those opposing the law also argued that the Congress passed it after lobbying from media companies whose copyrights were about to expire.

Before yesterday's decision, a federal district court and the Federal Appeals Court in Washington, DC, both ruled that the law was constitutional.

Yesterday, the US Supreme Court upheld those decisions. In a 7-2 ruling, the court ruled that the law was neither an overstepping of the Congress's power, nor a violation of free speech.

In their decision, the majority judges found that the copyright extension in dispute was a reasonable use of congressional power, which partially brought US copyright law in line with EU legislation.

They said that the Constitution "gives Congress wide leeway to prescribe 'limited times' for copyright protection and allows Congress to secure the same level and duration of protection for all copyright holders, present and future."

They added: "The First Amendment securely protects the freedom to make – or decline to make – one's own speech... It bears less heavily when speakers assert the right to make other people's speeches."

In their dissenting opinion, the two minority judges claimed that the court had misinterpreted the central purpose of copyright and patent law, which is, according to their opinion, to protect the public interest in free access to "products of inventive and artistic genius."

They also claimed that the decision granted Congress the right to authorise "virtually perpetual copyrights."

The decision has already been subject to criticism by on-line publishers, who hoped to release more material into the public domain.

The US Supreme Court's decision can be found at:
cyberlaw.stanford.edu/lessig/blog/archives/01-618o.pdf