The Sonny Bonny Copyright Term Extension Act was passed in 1998. Named after the late actor, singer and Congressman, it extended the term of copyright protection by 20 years for most works, broadly in line with the position in the EU.
However, the Act was questioned by an non-profit publisher, Eric Eldred, who makes old books available on-line. The effect of the Act was to add 20 years to his waiting time for releasing certain books, even though most of them were long out of print.
Eldred was joined in his action against the US Attorney General by, among others, a company that reprints books that have fallen into the public domain and a choir director who buys inexpensive sheet music in the public domain.
Under the US Constitution, authors and inventors can be given an exclusive right to their works – but this can only be for a “limited” time, the limitation recognising the desire for eventual public access. Eldred and his supporters point out that this limit has been extended eleven times in the past forty years and this, they say, “has rendered meaningless” the Constitution’s “plain and express intent to restrict the duration of monopolies over speech.”
Pre-1998, works by individuals were protected for 50 years from the date of the author’s death. Works by companies were protected for 75 years from the date of creation. The Sonny Bono law increased these terms to 70 years and 95 years respectively.
If the 1998 extension were deemed unconstitutional, early drawings of Mickey Mouse would, as of next year, no longer belong to Disney, the first sketches having been copyrighted in 1928. That said, the company would still have trade marks to protect it against anyone wanting to set up rival theme parks.
The song “Happy Birthday to You” is another example of a work that will be affected. It was first copyrighted in 1935 and the rights were eventually sold to Warner Communications. The company is currently entitled to royalties whenever Happy Birthday is sung or played for commercial purposes. In this way, it makes an estimated $2 million per year, according to Warner Chappell and Forbes Magazine. As things stand, the company will continue to enjoy this income until 2031, unless the law changes, in which case it will immediately stop receiving royalties.
In the EU, most works are protected for 70 years from the date of the author’s death or, for works by companies, 70 years from the start of the year in which the work was created. While the US action could result in disparity between the US and EU protections, there is no reason to suppose that the EU would reduce its term of protection. However, the US case does raise interesting questions on the balance between the law’s interest in promoting creativity on the one hand and promoting public access to creative works on the other.