Copyright Law Ronald W. Staudt

Class 13October 10, 2013

Class overview –

Duration and Constitutional limits on Congressional power to extend ©

Eldred v. Ashcroft

Golan v. Holder

Overview of Duration

Duration – simplified overview

1909 act- © arises when author publishes a work with proper copyright notice. © lasts for 28 years from publication © can be renewed for a new 28 year term in 27th year of

the first term From creation to publication, State C/L protects author’s

right of first publication.

1976 act (1/1/1978) – © arises when author fixes work in tangible medium of expression Unitary term of life + 50, now life plus 70 No renewal, but termination possible after 35 years of

transfer State C/L copyright preempted

Sonny Bono & Con Law

Chaffee & Macaulay and incentivesHouse Report on life + 50 years

56 years too short to be fair – authors compete with themselves

Media growth adds commercial value to great works Short term helps publishers, not authors or public Life + 50 simple, clear computation Renewal is lawyer’s dream w/ too many mistakes Life + 50 compensates for loss of perpetual C/L © On the road to Berne – international conformity Fair use softens public & scholars’ loss of stuff not

usually renewed.

Eldred

Questions Presented Did the D.C. Circuit err in holding that

Congress has the power under the Copyright Clause to extend retrospectively the term of existing copyrights?

Is a law that extends the term of existing and future copyrights “categorically immune from challenge under the First Amendment”?

Eldred Majority Opinion

“limited times…” Language clear History speaks without dissent

1790 Act and 1831 and 1909 and 1976• Patents similarly extended- see fn 8 p. 393 academic

sparring• Policy of retroactive fairness

Rational exercise of Copyright power? EU harmonization Demography and technology

Novel arguments-- Effectively perpetual- present value calculations Originality, “promote the progress” and quid pro

quo

Eldred Majority Opinion (cont.)

1st Amendment attack Framers saw © as “engine of free

expression” 102(b) 107 CTEA extensions of 108(h) and 110(5)(b)

Ultimately, this is not our job!

Eldred – J. Stevens opinion

1790 Legislation irrelevant and framers’ presumption not available for 1831 act.

Fairness argument for retroactivity fails to account for public loss

It is our job!

Eldred – J. Breyer’s opinion

CTEA makes © virtually perpetual, benefits heirs, estates and corporate successors and inhibits the progress of Science.

Not unwise, unconstitutional 20 years means $billions paid by the public Millions of works will require new permissions Author incentive is a NPV illusion & same as unlimited Harmonization is an illusion and no basis for old

works Restoration, life span, exports inadequate support for

another 20… No public benefit and serious public harm

Author’s questions for her mother?? p. 407

Eldred – J. Breyer’s opinion This statute will cause serious expression-related harm. It will likely restrict traditional dissemination of

copyrighted works. It will likely inhibit new forms of dissemination through

the use of new technology. It threatens to interfere with efforts to preserve our

Nation's historical and cultural heritage and efforts to use that heritage, say, to educate our Nation's children.

It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.

… the statute cannot be understood rationally to advance a constitutionally legitimate interest. The statute falls outside the scope of legislative power that the Copyright  Clause, read in light of the First Amendment, grants to Congress. I would hold the statute unconstitutional.

Golan v. Holder

FactsBerne history

P argues: “progress” requires creation of new works. 514 provides no plausible incentive to create new works.

Stealth perpetuity? Historical precedent

Golan v. Holder – J. Ginsburg

The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use "[t]o promote the Progress of Science." See Perlmutter, supra, at 332 (United States would "lose all flexibility" were the provision of incentives to create the exclusive way to promote the progress of science). Congress determined that exemplary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the rational judgment Congress made.

Golan v. Holder – J. Ginsburg 1st amendment argument-

© is a limit on expression AND “an engine of free expression” Idea/ expression and fair use

P says: we had unlimited “vested” rights now gone. 514 is unprecedented! Eldred does not control

J. Ginsburg: this is just a 1st amendment version urging heightened scrutiny of the Copyright Clause of the argument on inviolable public domain that we already rejected. Not viewpoint regulation, e.g.

History: foreign works, dramatic works, photographs, movies, sound recordings and architectural works added and retroactive…

514 levels the playing field for US and foreign authors Exemplary adherence to Berne meets 1st amendment test

Golan v. Holder – J. Breyer

Can Congress impose the costs and burdens of (c) without providing any additional incentive for the production of new material?

Speech related harms trigger 1st Amendment interest Past instances of extending © to preexisting works special

exceptions for equitable reasons Dissemination of existing and future works unrelated to the

nonrepeatable costs of initial creation or public benefit Natural right a European not US concept Better and less costly ways exist to implement Berne

Duration – simplified overview

1909 act- © arises when author publishes a work with proper copyright notice. © lasts for 28 years from publication © can be renewed for a new 28 year term in 27th year of

the first term From creation to publication, State C/L protects author’s

right of first publication.

1976 act (1/1/1978) – © arises when author fixes work in tangible medium of expression Unitary term of life + 50, now life plus 70 No renewal, but termination possible after 35 years of

transfer State C/L copyright preempted

Transition issues: Categories of works on 1/1/1978

1/1/1978 Works previously published w/o notice Works published w/notice prior to 1923

(1978- 56 years) Works published w/notice in 1923 &

afterAll about renewal!

Works created but not publishedAll about compensation for losing perpetual

State C/L copyright

Duration under the 1976 Act & CTEA

Works created after 1977 or unpublished before 1978 Section 302- life + 70, joint authors-survivor + 70,

works for hire - shorter of 95 or 120 Section 303- pre 1978 works lose c/l © & get 302 or

2002+ if published by 2002 at least 2047. Works first published under the 1909 Act

Section 304- 28 + Renewal Renewal is a new estate

• Author if living, then spouse or children, executor, next of kin 1976 renewal extended to 47 years 1992 automatic renewals 1998 Sonny Bono Act- renewal 67 years

Works in Public Domain prior to 1978 1994 -Sect 104A --NAFTA + Uruguay Round--restores © in

some foreign works, reliance parties protected

P. 438 & Professor Gassaway’s table & Circular 15a