COMMENTARY

THE FROZEN PUBLIC DOMAIN

By Marjorie Heins

On January 15, 2003, the Supreme Court decided Eldred v. Ashcroft. By a vote of 7-2, the Court upheld the 1998 "Sonny Bono Copyright Term Extension Act," which extended the term of copyright across the board for 20 years – for a total of 95 years for corporations, and life plus 70 years for individuals and their heirs. The law means that creative works dating back to the 1920s and '30s – songs by Cole Porter, books by F. Scott Fitzgerald, and, of most concern to the entertainment industry, cartoon characters by Walt Disney – will not enter the public domain for another 20 years.

Justice Ruth Bader Ginsburg wrote a dry, legalistic opinion for the seven justices who joined in the majority opinion. She made no mention of the myriad ways that a stagnant public domain impoverishes art and culture, even though dozens of organizations such as the College Art Association had submitted friend-of-the-court briefs describing how important it is for older works to enter the public domain. Once freed of copyright controls, these old movies, songs, books, and historical documents become available to everyone from archivists to jazz fans, to access, reproduce, distribute, and enjoy.

Instead, Ginsburg's majority opinion condemned Justice Stephen Breyer, one of the two dissenters, for making "policy arguments" instead of sticking to legal precedent. Breyer's impassioned dissent did indeed rely on those friend-of-the-court briefs which documented the dangers of locking up culture under the monopoly control of media corporations, or else (for works that are no longer commercially profitable) in a legal limbo where permission to reproduce copyrighted works is hard to come by because their owners cannot even be found. Breyer noted, for example, that about 350,000 films, songs, and other works with little or no commercial value are still frozen in "a kind of intellectual purgatory" because of the Sonny Bono law.

According to Justice Ginsburg's opinion, Congress has near-total discretion to decide what is an appropriate copyright term. The decision leaves Congress free to extend yet again the "limited time" that the Constitution's Copyright Clause specifies should be allowed for monopoly control of creative works. As Justice John Paul Stevens, the Court's other dissenter, pointed out, only one year's worth of books, musical compositions, movies, or other works of visual art have entered the public domain in the past 80 years. By allowing Congress to extend existing copyrights ad infinitum, Stevens said, the majority ignored "the central purpose" of the Copyright Clause.

Justice Ginsburg was certainly right that copyright term extension is an issue of policy. Of course, this doesn't disqualify the courts from weighing in; they often consider policy arguments, especially in constitutional cases. The Rehnquist Court in particular has engaged in elaborate policy debates and invalidated laws that it found inconsistent with its political agenda. And in this case, as Justice Breyer pointed out, judicial oversight was necessary in order to "avoid the monopolies and consequent restrictions of expression" that the Copyright Clause and the First Amendment were both intended to guard against.

Despite the disappointingly wooden Supreme Court decision in Eldred, the case actually had a salutary effect. It took the disappearing public domain out of the legislative shadows and into the bright light of policy debate. A remarkable coalition of scholars, libraries, writers, archivists, and cyber-activists joined in fighting the Sonny Bono law. This coalition just might be able to persuade Congress to revisit the issue of our frozen public domain. Legislation allowing copyrights that have no commercial value to lapse, for example, would free up many thousands of historical documents and other works.

Meanwhile, artists, critics, Web entrepreneurs, and others are likely to make even greater use of free-expression "safety valves" within the copyright system, such as the doctrine of fair use. Fair use allows the reproduction of copyrighted works for purposes scholarship, comment, news reports, and parody. Heaven knows, there is much to parody in our present culture, including the Supreme Court's hypocritical decision in the Eldred case.

January 17, 2003