American Corporate Copyright: A Brilliant, Uncoordinated Plan

Journal of Intellectual Property Law Volume 12 | Issue 2 Article 4 April 2005 American Corporate Copyright: A Brilliant, Uncoordinated Plan Paul J. Heald University of Georgia Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Paul J. Heald, American Corporate Copyright: A Brilliant, Uncoordinated Plan, 12 J. Intell. Prop. L. 489 (2005). Available at: https://digitalcommons.law.uga.edu/jipl/vol12/iss2/4 This Essay is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Heald: American Corporate Copyright: A Brilliant, Uncoordinated Plan ESSAYS AMERICAN CORPORATE COPYRIGHT: A BRILLIANT, UNCOORDINATED PLAN Pau/J.Heald* At first glance, American copyright law and policy seem to be dictated entirely by a monolithic block of corporate rightsholders. Over the last twenty years, powerful interests including Disney, the American Society of Composers, Authors, and Publishers (ASCAP), Microsoft, and the American Motion Picture Association (AMPA), have successfully lobbied Congress for copyright term extensions, copyright restoration, software anticircumvention legislation, protection against audio bootlegging, and a series of bilateral and international agreements designed to increase protection for American copyright owners overseas) Even the failure to protect databases in America, widely touted as a victory for the public interest, has been driven by opposition from large corporate database gatherers. Serious public debate over issues raised by corporate influence on copyright policy is limited to academic conferences, Internet bloggers, and the occasional letter to the editor. The Sonny Bono Copyright Term Extension Act (CTEA), a piece of legislation that will cost consumers so little opposition that untold billions over the next twenty years, encountered 2 vote. voice a with Congress by it was passed Indeed, the U.S. Supreme Court's endorsement of CTEA in Eldred v.Ashcrof? suggests a nearly complete capitulation to copyright lobbyists, resulting in a Copyright Act that resembles the Internal Revenue Code. Like American tax law, copyright law might now be accurately characterized as a series of statutes with no coherent underlying theory, a code that merely reflects which factions have sufficient political power to obtain an exception or a subsidy. The absence of internal coherence, however, does not render the American situation unworthy of study. Important lessons, especially for non-industrialized "pirate" jurisdic- * Allen Post Professor of Law, University of Georgia. See 17 U.S.C. §§ 302-304, 104A, 1101, 1201 (2000). See Copyright Term Extension Act, Pub. L. No. 105-298, § 102(b), (d), 112 Stat. 2827, 2828 (1998) (codified at 17 U.S.C. §§ 302, 304 (2000)). 3 537 U.S. 186, 65 U.S.P.Q.2d (BNA) 1255 (2003). 2 Published by Digital Commons @ Georgia Law, 2005 1 Journal of Intellectual Property Law, Vol. 12, Iss. 2 [2005], Art. 4 J. INTELL PROP.Eo2 [Vol. 12:489 tions, can be uncovered with a little work. A quick look at Eldred reveals the starkest example of corporate control over copyright policy.4 Yet one can also find within the United States a hodge-podge of regulations, legislation, and judgemade rules that relieve /ocalconsumersfrom the most onerous costs of the overprotection of copyrights.' An examination of the entire situation in the United States reveals a brilliant, but casually coordinated, dual treatment of copyright: One set of rules for U.S. consumers, and a different set intended for the rest of the world. The present strategy allows rightsholders to capture rents from abroad while minimizing costs at home, but it also suggests counter-strategies for the developing world. The Supreme Court's treatment of CTEA in Eldred v.Ashcroftis a good place to begin the story. In 1998, Congress unconditionally extended the term of copyright protection for existing works for twenty additional years.6 Without the extension, over the subsequent twenty years, every book, film, and musical composition published between 1928 to 1948 would have fallen into the public domain in the United States. In return for retaining this vast, twenty-year income stream, copyright owners were asked to part with nothing; the grant was entirely unconditional. A group of small publishers and a choir director (my wife) brought suit, arguing that an unconditional extension of rights in existing works 7 was unconstitutionalThe most convincing argument that Congress lacked the power to grant such an extension was based on the language of the intellectual property clause of the Constitution, which reads: "The Congress shall have Power... 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."' Prior to Eldred, the Court had consistently viewed this language as authorizing Congress to strike an economic bargain with authors on the public's behalf. For example, it had stated, "[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' "' Continental lawyers will recognize here the utilitarian rationale for copyright protection that has long coexisted uneasily with moral rights theories and that has See id. See infra notes 16-46 and accompanying text. 6 Copyright Term Extension Act, supra note 2, § 102. ' See Eldred,537 U.S. 186. 8 U.S. CONST. art. I, § 8, cl. 8. 9 Mazer v. Stein, 347 U.S. 201, 219, 100 U.S.P.Q. (BNA) 325, 333 (1954). https://digitalcommons.law.uga.edu/jipl/vol12/iss2/4 2 Heald: American Corporate Copyright: A Brilliant, Uncoordinated Plan 2005] AMERICAN CORPORATE COPYRIGHT helped0 justify the exclusion of such rights in Article 9(1) of the TRIPS Agree1 ment; A utilitarian quid pro quo theory of copyright, where the state is authorized to provide incentives for authors, rather than to make gifts to publishers, cannot justify an unconditional extension of the copyright term in an existing work. One cannot provide an incentive to create a work that already exists. However, if CTEA were struck down, Mickey Mouse would now be in the public domain, so the Court engaged in an astounding about face: "[Wle reject the proposition that a quidpro quo requirement stops Congress from expanding copyright's term in a manner that puts existing and future copyrights in parity."" The gift given by Congress to Disney, and a host of other corporate owners, was affirmed by a 7-2 vote of the Court, sounding th (...truncated)