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Copyright extensions put profits ahead of the public
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Mickey Mouse and Winnie the Pooh may live forever.

This is not a vote of confidence for these children’s favorites; the statement simply recognizes how a recent U.S. Supreme Court decision may affect the balance between copyright protection and free speech for decades.

At issue was whether Congress could extend copyright protection for works created half a century ago. The Constitution gives Congress the power to grant exclusive rights for the use of literary and artistic creations “for limited times.” This was intended to encourage creativity by allowing artists to reap the fruits of their labor for a specific period. At the end of that period, the material would be free and available to the public.

It’s a system that has served us well for centuries, but as corporations have purchased or developed the rights to creative works – including books, films and cartoons – they’ve lobbied Congress to extend the period during which the benefits and royalties from these works will flow to them.

In other words, the original Winnie the Pooh books and the early Mickey Mouse cartoons would have become available free of charge to the public, but Congress intervened and added another 20 years of protection.

Critics of the legislation argued that adding 20 years to copyright protection for work created early in the 20th century violated the “limited times” requirement in the Constitution. In the lawsuit before the Supreme Court, they also argued that the additional copyright protection violated the First Amendment guarantee of free speech.

In a pivotal decision two weeks ago in Eldred v. Ashcroft, the Supreme Court upheld Congress’ action, finding that the extension of copyright protection – now a total of 70 years after a creator’s death – is still a “limited time.”

In a majority opinion, Justice Ruth Bader Ginsburg dismissed the First Amendment issue, observing that “the First Amendment securely protects the freedom to make – or decline to make – one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”

In truth, the Court’s decision was not a surprise. The extension of copyright protection was for a specific length of time, and the Court was able to uphold Congress’ action without endorsing it.

Most Americans probably didn’t notice the decision. In most places, it wasn’t front-page news, and there were those reassuring quotes from people like Jack Valenti, president of the Motion Picture Association of America, who said, “This ruling is a victory not solely for rights holders, but also for consumers everywhere.”

Was this really a victory for consumers? Was this simply a matter of making sure that those who own the rights to music, drama and literature make a few more dollars? Or do the gains to copyright holders mean losses to the public? Some of the most insightful answers came from Justice Stephen Breyer, who along with Justice John Paul Stevens dissented in the case. Among Breyer’s points:

  • Copyrights of books, songs and movies from the period covered by Congress’ extension generate about $400 million per year in royalties. “One might conservatively estimate that 20 extra years of copyright protection will mean the transfer of several billion extra royalty dollars to holders of existing copyrights” and out of the hands of the public, Breyer wrote.
  • The copyright extension can mean indirect costs to the public. For example, United Airlines will have to continue to pay to use “Rhapsody in Blue,” a 1924 George Gershwin song, in its marketing. The $500,000 fee will be passed along to fliers. In Breyer’s words: “The extra royalty payments will not come from thin air. Rather, they ultimately come from those who wish to read or see or hear those classic books or films or recordings that have survived.”
  • Another hidden cost of copyright extension is that Americans who seek to use material from that period will now have to go through an extensive and potentially costly permissions process. It’s not easy or inexpensive to figure out who currently owns a work published in 1925. Breyer notes that this will affect “not only movie buffs and aging jazz fans, but also historians, scholars, teachers, writers, artists, database operators and researchers of all kinds – those who want to make the past accessible for their own use or for that of others.”
  • Breyer has pinpointed the real costs of the copyright extension: billions of dollars in royalties accruing for the benefit of corporations rather than the public; valuable material kept out of the public domain; and administrative and logistical headaches for researchers and educators.

    Our nation’s founders had the wisdom to build incentives for creativity. Today that protection means that a new book will belong to the author for his entire life and will belong to his heirs for 70 years after his death. Despite the scope of that protection, there will come a time when Congress will be lobbied once again to extend the current law to ensure another 20 years of profits for major media corporations. And now the Supreme Court has said that it’s powerless to stop these floating extensions.

    The public has a stake in making sure that music, books and literature one day enter the public domain. As Justice Breyer has made clear, copyright extensions put money in private pockets at a long-term cost to the public.


    Supreme Court backs Congress' copyright extension

    7-2 ruling, though not unexpected, is blow to Internet publishers, others wanting to use old books, creations without paying high royalties. 01.15.03

    Artists get second chance to challenge copyright-extension law
    10th Circuit panel reinstates lawsuit targeting act that lengthened copyrights for foreign works, saying plaintiffs had 'shown sufficient free expression interests … to require First Amendment scrutiny.' 09.05.07

    Supreme Court downplays First Amendment argument in copyright ruling
    By Tony Mauro In dissent, Justice Stephen Breyer writes that copyright-extension law 'will cause serious expression-related harm.' 01.16.03

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