The Republicans are dismayingly insane. Moving right along, I’m wondering whether, when copyright gets extended – as it did with Bono – works get taken out of the public domain and made private IP. That is, when copyright went from life + 50 to life + 70 some public domain works that had passed the 50 mark, but not the 70 mark, ceased to be public domain? Has this created legal trouble or controversy? Suppose I made (and copyrighted) an edition of a recently liberated public domain work that, when the hammer of copyright extension fell, ceased to be such. Would my edition, legally produced during a window of opportunity, cease to be legal? Never mind whether I am a retroactive pirate – a time bandit, if you will. Can I continue to publish my work because I produced and copyrighted it during a window of opportunity?
In short, does Congress have the right not just to extend copyright but to re-enclose the public domain? And if Congress has the right to re-enclose the public domain, is there any limit to that power (apart from the fact that it could only reassign rights to the distant descendents of authors and creators – you know, so as to foster science and the useful arts.)
UPDATE: Oh, the wikipedia tells me that no expired copyrights were reinstated. This does imply that the life + 70 term is not strictly definitive. There are works that fail that test that are actually public domain? So the date of Bono – 1998 (?) – becomes quite crucial for calculating whether a given work is public domain?
2nd UPDATE: This recent decision (June 19, 2004), “Luck’s Music Library, Inc. v. Ashcroft” (PDF) (via this page), seems to establish Congress’s power to remove works from public domain retroactively. Although I guess Bono did not actually do anything of the sort. Interesting.
{ 13 comments }
David 09.02.04 at 3:45 pm
I suspect this has to do with the US Constitution’s prohibition on ex post facto laws. It isn’t constitutional in the US to criminalize behavior retroactively.
jholbo 09.02.04 at 3:53 pm
Well, it wouldn’t necessarily have to be ex post facto criminalization. (That would be the most dramatic option and you are right to question its constitutionality.) You could just forbid future sales. But it would put a crimp of uncertainty in plans to market public domain works if there were significant fear that they might cease to be. But such it seems is not the case, as per my update.
Rob 09.02.04 at 3:55 pm
I believe one needs to protect a given copyright to keep in from falling into public domain early. Its the reason why video game publishers fight to stop emulators. No one is going to make money selling video games from the late 1980s, but if the copyright isn’t protected, poublishers may lose their claims on characters contained in those games.
SomeCallMeTim 09.02.04 at 4:10 pm
My recollection is that there are other enabling acts that extend the term of the copyrights that attach to some of the works that would otherwise fall into the public domain. That is, work X would go public domain in 1996, but in 1995 (after being lobbied by Disney, et. al.), Congress extends the copyright term for a certain date-class of works for, say, 10 years. Then, when Bono passes, all of those works remain protected by copyright.
This is all pretty vaguely recalled.
Swisslawyer 09.02.04 at 4:36 pm
I do not know about the legal situation in the US, but the Swiss Supreme Court had to decide the exact same issue when Switzerland extended the term of protection retroactively from 50 years post mortem auctoris to 70 years p.m.a. in 1993. The Supreme Court held that the extension was not applicable to works already in the public domain at the time the new law came into force. The decision (in German) can be found here http://clir.bger.ch/cgi-bin//MapProcessorCGI?mapfile=navigate/ConvertDocFrameCGI.map&ds=navigate&doctype=doc&lang=de&pa=1&d=doc_de_1998_BGE_124_III_266 .
ken 09.02.04 at 4:41 pm
Check out our “Philosophy Talk” episode on “Who owns ideas?” with Larry Lessig. He is really good on what’s wrong with current copyright law. You can hear the episode at the following url:
http://www.philosophytalk.org/pastShows/WhoOwnsIdeas.htm
Joe Liu 09.02.04 at 5:14 pm
John,
The Bono term extension act extended the term for works that were still protected as of the effective date of the Act, so it did not remove works from the public domain.
However, in a separate bit of legislation, Congress did re-instate copyright for certain foreign works that had passed into the public domain because of our old formality requirements. This was extremely controversial, and I believe is being challenged on constitutional grounds.
In general, it’s actually a non-trivial task to find out if something is still copyrighted. This is because many older works were governed by prior copyright statutes that calculated the copyright term in different ways. Here’s a useful chart summarizing the different rules:
http://www.lib.rochester.edu/copyright/durcopy.htm
Joe.
Giles 09.02.04 at 5:28 pm
whats this got to do with republicans?
john b 09.02.04 at 9:03 pm
Giles. Nothing whatsoever. Sonny Bono was, famously, an independent socialist congressman.
john b 09.02.04 at 9:04 pm
Giles: nothing whatsoever. Sonny Bono was, famously, an independent socialist congressman.
Justin 09.02.04 at 10:05 pm
At least in Ireland, yes, works are “reclaimed” from the public domain. That’s what happened to Joyce’s _Ulysses_ in the 1990s (iirc).
Pete 09.02.04 at 11:09 pm
Rob:
I believe one needs to protect a given copyright to keep in from falling into public domain early.
No, that’s trademark. Trademarks in e.g. video game characters last forever – as long as you’re still using them and they’ve not become a generic term like Hoover or aspirin.
Copyrights persist even in works that are not being published, in situations where it is no longer clear who owns the rights, and regardless of whether or how selectively they are enforced.
Ray Davis 09.03.04 at 6:30 pm
Unfortunately, some Democrats have played leading roles in the corporate dismantling of intellectual freedom and the public domain, notably California’s own (and Hollywood’s owned) Dianne Feinstein.
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