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The case against copyright creep

Sonny Bono: A warning from history

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Interview Earlier this week, a leak from the Treasury's much-anticipated Gowers Review of Intellectual Property suggested the former Financial Times editor will recommend the government not extend the copyright term granted to sound recordings.

The record industry had lobbied for the current 50 years' protection from the date the recording was made to be increased to 95 years, the same as in the United States.

Though not a definitive decision on copyright term extension, the news is a victory for campaigners against "copyright creep", which they say stifles creativity, jeopardises our audio heritage, and serves nobody but record company shareholders.

But there's a US precedent for 95 years, which the BPI recently lobbied for. On 27 October, 1998, at the height of the Monica Lewinsky scandal, Bill Clinton signed the Sonny Bono Copyright Term Extension Act into law.

The Act was named for Congressman and erstwhile Cher collaborator Sonny Bono, who had long-favoured copyright extension but died in a ski accident before the act became law.

The Act extended copyright from 70 to 95 years from the date works are created. It is retroactively applied, so a recording made at the end of 1928, which was on the verge of entering the public domain will now be safe until 2023.

Article I, Section 8, Clause 8 of the United States Constitution states:

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.

The constitutional legality of the Sonny Bono Act was quickly challenged early in 1999 by online hobbyist publisher Eric Eldred, who for reasons best known to himself likes to type out out-of-copyright books and put them in the public domain. The case eventually made it to the Supreme Court and has become known as Eldred vs Ashcroft, after puritanical Bush administration Attorney General John Ashcroft.

To even the odds, Eldred had some well educated legal brains on his side in the form of the Berkman Centre for Internet and Society at Harvard Law School, who said the Constitution's "limited times" provision on intellectual property made the extension illegal.

The Supremes voted seven to two against Eldred, and the Act stands. Full decision here, tedious legal document fans (.pdf).

Professor Jonathan Zittrain, now ensconced at Oxford University, was one of the team which represented Eldred in the fight against the Sonny Bono Act. In the light of the recent public noodlings over copyright extension in the UK, we thought if The Guardian gave platform to Mick Hucknall's views on a complex intellectual, economic and legal issue, someone should also ask the man who gave several years of his professional life to fighting against them.

So what was their beef with copyright extension? According to Mick Hucknall, "most of all, it is about nurturing the development of a truly revolutionary explosion in small-scale grassroots creative businesses". Sounds great to us.

Zittrain:

To grant it [copyright] for one time and then retroactively extend it means the time is no longer limited because it can be changed at any moment. Retroactive extensions, i.e. those applying to works already created, provide no additional incentives to create since the work has already been made. Five Nobel Prize winners in economics filed a brief supporting our view.

But the Supremes disagreed with the Nobel Prize winners and voted not to squash the Act. Justice Ruth Bader-Ginsburg said: "The Constitution gives Congress wide leeway to prescribe 'limited times' copyright protection and allows Congress to secure the same level and duration of protection for all copyright holders, present and future."

So why did they fail to convince the Court retroactive extension was unconstitutional? Hit the next page for answers.

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