Original URL: http://www.theregister.co.uk/2006/11/29/jonathan_zittrain_interview/

The case against copyright creep

Sonny Bono: A warning from history

By Christopher Williams

Posted in Media, 29th November 2006 09:49 GMT

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.

Zittrain:

I think we lost because it was hard for the justices to appreciate the value and power of the public domain. They thought that works might be better cared for by big firms who exclusively own them than by members of an undefined public who might be volunteering to retype them digitally and then post them on servers. Also, I think the courts were worried about the impact of invalidating the Sonny Bono Act - would it also require invalidating all prior retroactive extensions?

Ah, we see. So it wasn't about royalties for the families of 1920s singers anymore than the argument over here has been about keeping Cliff Richard in tennis rackets and vineyards.

Zittrain:

The extension was essentially a rational cash-and-carry transaction: firms that stood to benefit from keeping works under copyright simply lobbied Congress for the extension. In 1998, there were some who pressed the interests of the public domain - and the importance of keeping copyright's bargain rather than eroding it, a fear that goes back to Jefferson - but they weren't in a position to lobby using all the traditional tools.

So it wasn't a fair fight in the States. Unlike here, the debate wasn't just about sound recordings, it covered all creative works; books, movies, cartoons, the lot. The power wielded by Disney was key; ironically a company built on adaptations of public domain works like Snow White. It was no coincidence Steamboat Willie was released 18 November, 1928; Mickey "escaped" the public domain by just three weeks thanks to the Sonny Bono extension.

Zittrain:

At the time they acquired those works from the authors they knew how many years they had to exploit them; they just wanted to get more. You can't blame them for trying - it's the rational thing for them to do - but Congress should know better than to simply write them a cheque at the expense of the public domain. This is especially true in the Internet era, when it's so much easier to archive, distribute, and make new works out of existing ones.

So what will happen in Europe if we continue to only give performers and publishers 50 years to exploit recordings?

Zittrain:

Keeping the recording rights at the level at which they were originally promised creates a terrific experiment; we'll see just how much uptake there is of this narrow category of works [sound recordings older than 50 years] now that people are free to sample them, copy them, and make new works out of them.

So if Gowers' recommendation on copyright extension is heeded, we may indeed be looking at a thriving Cliff Richard mash-up scene. We'll know more about his logic when the full report hits the streets next Wednesday, but our guess is he does place value on the public domain.

The record industry is now spinning Gowers as merely an independent review, which should not necessarily form the basis of policy. It's accurate of them to say UK copyright law is governed from Brussels rather than London, but whether European federalisation will help them achieve their aim of bunkering their golden era of 1960s and 1970s record sales is another matter. The EU is not known for legal fleet footedness.

It seems we may just have escaped a recurring battle over extension, but the precedent is well and truly set Stateside for copyright creep.

Zittrain:

The battle will no doubt begin anew in about fifteen years: the publishers will return for another retroactive extension (even though they promised they don't want anymore) and the landscape may be different enough then that another suit can prevail.

So, who might be changing the legal landscape on copyright enough that opposition might find a sympathetic judicial ear come 2023, when Disney will again try to maintain an iron grip on its Willie? Well, it begins with a "G" and has tested laws plenty of times already over copyright. Shouldn't take a Nobel Prize winner to work that one out. ®