This link has been bookmarked by 29 people . It was first bookmarked on 02 Jul 2007, by Greg Parmer.
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12 Feb 15
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The CTEA extended the term of protection by 20 years for works copyrighted after January 1, 1923.
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Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50". Works made by or for corporations (referred to as "works made for hire") got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
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Eldred argues that the CTEA is unconstitutional on two grounds:
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first, because the statute exceeds Congress's power under the Copyright Clause;
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second, because the statute runs afoul of the First Amendment by substantially burdening speech without advancing any important governmental interest.
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First, it empowers Congress to "promote the Progress of Science and useful Arts." Second, the text of the Copyright Clause limits the means that Congress may adopt in exercising the enumerated power.
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Seen in this light, the CTEA cannot survive. Because already existing works cannot be created anew, extension of subsisting copyrights does not "promote progress."
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Congress is not empowered merely to provide copyright holders with an additional boon - that is not "progress", but corporate welfare.
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The argument is that Congress's repeated extensions (the CTEA is but the latest of 11 acts that have stretched the copyright term from 14 years to beyond 100 years) have rendered meaningless the stricture that exclusive rights may be granted only for "limited times."
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both subsisting and future copyright extension, Eldred argues, substantially burden speech by foreclosing use of expression that would otherwise be available in the public domain, while advancing no important government interest.
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immanent in the phrase is the notion that a work is debased when no longer copyrighted.
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disparagement of the public domain is out of step with our constitutional history, with the economics of information markets, and with the real way in which art, literature, and music are produced in our culture.
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the creation of exclusive rights involves a difficult trade-off between creation and dissemination.
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At the margin between life plus 50 and life plus 70 - which is the margin in which the CTEA operates - the proponent of a longer term should be prepared to show that the social value of the additional incentive outweighs the harm caused by another two decades of supra-competitive pricing and consequent reduced dissemination of valuable copyrighted work.
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18 Mar 13
koroghcm usA good summary of what led to the Copyright Term Extension Act aka the Sonny Bono Copyright Term Extension Act. This was written in 2002 and doesn't include and of the updates since so it is limited in utility for classes.
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27 Sep 11
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10 Feb 11
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29 Jul 10
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26 Apr 09
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22 Mar 09
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Unless you earn your living as an intellectual property lawyer, you probably don't know that the Supreme Court has granted certiorari in Eldred v. Ashcroft, a case that will test the limits of Congress's power to extend the term of copyrights.
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the issues at stake in Eldred are vitally important to anyone who watches movies, listens to music, or reads books.
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Back in 1998, representatives of the Walt Disney Company came to Washington looking for help. Disney's copyright on Mickey Mouse, who made his screen debut in the 1928 cartoon short "Steamboat Willie," was due to expire in 2003
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Pluto, Goofy and Donald Duck were to expire a few years later
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Rather than allow Mickey and friends to enter the public domain, Disney and its friends - a group of Hollywood studios, music labels, and PACs representing content owners - told Congress that they wanted an extension bill passed.
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Congress passed and President Clinton signed the Sonny Bono Copyright Term Extension Act.
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The CTEA extended the term of protection by 20 years for works copyrighted after January 1, 1923.
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Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50".
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Works made by or for corporations (referred to as "works made for hire") got 95 years.
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Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
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In all, tens of thousands of works that had been poised to enter the public domain were maintained under private ownership until at least 2019.
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n 1999, a group of plaintiffs led by Eric Eldred, whose Eldritch Press offers free on-line access to public domain works, filed a challenge to the statute.
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Eldred argues that the CTEA is unconstitutional on two grounds: first, because the statute exceeds Congress's power under the Copyright Clause; and, second, because the statute runs afoul of the First Amendment by substantially burdening speech without advancing any important governmental interest.
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However, there is good reason to believe that he may yet prevail in the Supreme Court.
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Eldred lost before the district court and the D.C. Circuit.
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The Copyright Clause does two things. First, it empowers Congress to "promote the Progress of Science and useful Arts." Second, the text of the Copyright Clause limits the means that Congress may adopt in exercising the enumerated power. Congress is limited to granting rights to authors for "limited Times" - there can be no perpetual ownership of intellectual property.
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a fact the Supreme Court recognized in Graham v. John Deere Co., where it held that the "qualified authority" that the Copyright Clause grants "is limited to the promotion of advances in [science and] the 'useful arts'."
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Seen in this light, the CTEA cannot survive. Because already existing works cannot be created anew, extension of subsisting copyrights does not "promote progress."
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But if Congress really wanted to encourage preservation, it could simply have offered the quid of an extended copyright in exchange for the quo of the copyright holder taking steps to preserve the copyrighted work - for example, by digitizing it and depositing it in an electronic archive (such as the non-profit Internet Archive. There is no such quid pro quo in the CTEA; rather, the statute is a giveaway to content owners, a quid pro nihilo.
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When copyright expires, works are said to "fall into" the public domain, where they are usable without charge or need of authorization.
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The linguistic convention by which works "fall" when they enter the public domain is revealing: immanent in the phrase is the notion that a work is debased when no longer copyrighted. Perhaps it is this view that allows statutes that shrink the public domain to gain widespread support.
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The Framers, Viewing Intellectual Property As Monopoly, Sought To Constrain It
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The Framers of our Constitution viewed inventions and expression not as "property", but as public goods to which exclusive rights may be granted purely as a means of incenting production.
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Correspondence between Jefferson and Madison regarding the drafting of the Copyright Clause evidences the same concern: both men classify copyrights and patents as "monopolies" sufferable only for limited periods, and only for the purpose of incenting invention.
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First, the creation of exclusive rights involves a difficult trade-off between creation and dissemination. To the extent that a piece of expression enjoys a market value, its price is likely to be higher if it is subject to copyright, as the copyright owner will be entitled to limit or eliminate competition in the provision of that expression to others.
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Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists. Shakespeare's Romeo and Juliet (1591) was taken from Arthur Brooke's poem Romeus and Juliet (1562), and most of Shakespeare's historical plays would have infringed Holingshead's Chronicles of England (1573). For the third movement of the overture to Theodora, Handel drew on a harpsichord piece by Gottlieb Muffat (1690-1770). Passages of both works are compared at this very interesting web site.
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Cultural giants borrow, and so do corporate giants. Ironically, many of Disney's animated films are based on Nineteenth Century public domain works, including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released exactly one year after Kipling's copyrights expired).
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Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary to the romantic notion that true genius inheres in creating something completely new, genius is often better described as opening up new meanings on well-trodden themes. Leonard Bernstein's reworking in West Side Story of Romeo and Juliet is a good example.
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Chris Sprigman is Counsel to the Antitrust Group in the Washington, D.C. office of King & Spalding.
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05 Jun 08
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26 Mar 08
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09 Feb 08
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23 Jul 07
mark oehlertIf nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, i
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