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Copyright – the Tale of the Dragon?
In the Smoky Mountains of North Carolina lies the Tail of the Dragon, a world famous stretch of road with 318 curves over 11 miles. Below is the Tale of the Copyright Dragon, a creature with at least as many twists and curves as the Smoky Mountain Dragon.
The Tale of the Copyright Dragon started on March 4, 1789, the first official governance day of the United States Constitution. Article One, Section Eight of that august document empowered Congress 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.” In 1790, that “limited time” was 14 years, with a possible one-time renewal of another 14 years, for a total of 28 years.
In 1909, the Dragon twisted and the maximum copyright term was extended to 56 years. In 1976, it curled around a new term, life of the author plus 50 years.
But in 1998, the Copyright Dragon mightily heaved itself forward into the distant future through the passage of the Sonny Bono Copyright Term Extension Act. In addition to addressing other copyright issues, this Act retroactively extended copyrights which otherwise would have expired fairly soon.
As the Copyright Office tells the tale, if a work had been originally copyrighted on July 29, 1950 and copyright was renewed on September 1, 1977, the copyright protection will now automatically extend to the year 2045, a term of 95 years. Many copyright experts believe that Congress will again be heavily lobbied to extend such retroactive protection far into the future as the new deadline approaches – an interesting intellectual property twist on the old department store “installment plan.”
Why do we care? There are three legitimate ways to use copyrighted material: through licensing, through a claim of fair use, and through expiration of copyright. When copyright protection expires, a work enters the public domain and is freely available to all to use in creation of new works, without fear of the fair use appellate ruling du jour or payment of licensing fees which could be exorbitant to the “little guy” writer. Such public domain access is a critical component of our culture. The Founding Fathers envisioned a balancing act between the rights of the original author and the rights of subsequent creatives who wish to build on the work of earlier generations. To protect works that have just been created, for the life of that creative and beyond, indeed “promotes the Progress of Science and useful Arts.” To protect copyrighted works retroactively for a term far into the future is a violation of the rights of creatives everywhere.
Nothing contained on this page should be construed as providing legal advice or creating an attorney-client relationship. All information herein is intended as educational only. For advice specific to your situation, please contact an attorney of your choice.