4.2.3.1 The history of U.S. copyright law
Recognition of the importance of intellectual property in the United States dates back to the founding of the nation. The United States Constitution (Article I, Section 8, Clause 8) states that the Congress shall have the power of “…securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
This power was exercised by the first Congress of the United States, which passed the Copyright Act of 1790. The Act was based on an English law known as the Statute of Anne. The Statute of Anne, enacted by the English Parliament in 1710, abolished the notion of ownership of a literary work as a perpetual right, and established the modern principle of copyright for a limited term. Both the English Statute of Anne and the U.S. Copyright Act of 1790 granted protection to a work for a period of 14 years, with the option to renew the copyright for an additional 14 years if the author was alive upon expiration of the original term. By limiting copyright to fixed terms, these laws established a “public domain” for works whose copyrights had expired.
In the three centuries since the passage of the Statue of Anne, copyright laws have been modified numerous times – to broaden the scope of copyright, to extend the terms of protection, and to address new technologies. In 1831 the term was extended from 14 to 28 years, with an option to extend for 14 more. The Copyright Act of 1909 kept the primary term at 28 years, but increased the extension to 28 years. The 1909 Act also extended protection beyond the written word, to other works of authorship, such as music and movies.
The Copyright Act of 1976 was a major overhaul of U.S. copyright law, increasing the term of protection to life of the author plus 50 years, and bringing U.S. copyright laws into conformance with those in effect in most European countries. The 1976 Act applied the new copyright term extension retroactively to all works that were currently under copyright. The 1976 Act also established a separate copyright term for works that were created “for hire”. A work for hire is a copyrightable work, such as a book, movie, or computer program, which is created by individuals working as employees or contractors for a corporation or other entity. In such cases, the copyright is owned not by the people who created the work, but by the entity that hired them to do so. Works for hire, including most movies and music, were given a 75 year copyright term.
In 1998 the Sonny Bono Copyright Term Extension Act (CTEA) extended copyright terms once more. The revised terms, which were applied retroactively to currently copyrighted works, are life of the author plus 70 years for works authored by a “natural person” and 95 years for “works for hire”.
Some people believe that the repeated increases in the length of copyright, from 28 years at the beginning of the 20th century to life of the author plus 70 years at the beginning of the 21st century, have defeated the primary purpose of copyright term limitations, which was to see that creative works were not owned in perpetuity, but were instead transferred to the public domain after a limited period of time. They worry that if current trends continue, the entertainment industry will pressure congress to continually extend the terms of copyright protection – forever preventing works produced since 1922 (including most movies and audio recordings) from ever entering the public domain.
Supporters of this view challenged the Constitutionality of the1998 Copyright Term Extension Act. However, the U.S. Supreme Court did not find their arguments persuasive and affirmed CTEA to be Constitutional by a 7-2 ruling in January 2003.
Now that the Constitutionality of CTEA has been established, supporters of an expanded public domain have turned to other means to accomplish their goals. One novel approach which seeks to balance the public’s interest in an ever-expanding public domain and the entertainment industry’s interest in protecting commercially viable films, books, and other creative works, is the “Public Domain Enhancement Act of 2003” (also known as the “Eldred Act”). This act, which is beginning to attract significant public support, would levy a small tax on copyrighted works. This tax would be due 50 years after initial publication of a work. If the tax were paid, the work would remain under copyright for the full term congress has set. If the tax were not paid, the work would enter the public domain.
Supporters of the Eldred Act claim that such a law would have the effect of moving a large number of works that are no longer of commercial value into the public domain. Placing these works into the public domain would allow libraries and other institutions to preserve and distribute them. By digitizing this material, many of these works could potentially find new life on the Internet, where they could be easily and cheaply disseminated to a wide audience.