The duration for which a copyright is afforded protection has changed tremendously throughout the years. As the law currently stands, for any copyrighted work created after January 1, 1978, protection lasts for the remainder of the author’s life, plus an additional 70 years. When compared to patents, which generally provide protection for 20 years, this “life +70” term may seem, for all intents and purposes, to provide never-ending protection to the owner of a copyright. But this has not always been the case, and it is questionable whether this extended copyright protection is what the Framers of the Constitution had in mind.
The roots of copyright law extend as far back as the inception of the United States, its authority lying in arguably the most foundational document in American history: the Constitution. Article I, section 8 grants Congress the power to secure exclusive works, “for limited times,” to a work’s author, but what constitutes such “limited times” has become a topic of contention and debate for decades. Under various congressional Acts, copyright terms have been extended from as few as 14 years, to 28, to the duration of the author’s life plus an additional 50 years, and finally to “life +70,” with the passage of the Sonny Bono Copyright Term Extension Act (“CTEA”) in 1998. The CTEA applied retroactively to any works published as far back as 1923. As a result of these constant changes to the law regarding the term of a copyrighted work, no registered work has entered the public domain from 1998 to now, but that will soon change.
January 1, 2019 marks the first time in two decades that copyrighted works will at long last begin to re-enter the public domain. Notable works that will be released to the public in 2019 include the Felix the Cat cartoon, Bambi by Felix Salten, later adapted into the well-known Disney film, The Ego and the Id by Sigmund Freud, and The Murder of Roger Ackroyd, just to name a few. And in 2024, only a few years after these works begin entering the public domain, the very first Mickey Mouse cartoon, Steamboat Willie, will also lose its copyright protection and pass into the hands of the consuming public.
While this may seem alarming to those hoping to acquire copyright protection in the future, and upsetting to those authors, and their beneficiaries, who have benefited greatly from the successes of these works and many more, it is important to remember the intent of the Framers in establishing the purpose of intellectual property law, which is to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright law should be a way to incentivize creation and creativity, rather than provide a means to lock up valuable works for authors and companies to monopolize and exploit. Releasing copyrighted works to the public after a limited period of protection not only allows the consuming public to be the true beneficiary of creative works, but it also further incentivizes creation by encouraging authors to continue to adapt and create new works.
Justice Breyer, in Eldred v. Ashcroft, a seminal copyright case, dissented from the majority, noting that the continued extension of copyright terms effectively made it “not limited, but virtually perpetual. . . [making] its practical effect [ ] not to promote, but to inhibit, the progress of ‘science’– by which word the Framers meant learning or knowledge.” Although Congress could plausibly pass another act extending copyright terms, as it has done many times in the past, it should refrain from doing so. And although we, as creative beings, may selfishly hope that the term is in fact extended again, so that if ever we do choose to copyright our own work, it will be granted as lengthy a term as possible, we should instead weigh the pros and cons carefully and consider how another extension could stifle the creative progress of the useful arts and science.