Time to end the race for ever-longer copyright

[Ann Okerson <ann.okerson@yale.edu>]

Of possible interest.  Larry Lessig in the Financial Times.

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Time to end the race for ever-longer copyright
By Lawrence Lessig
Published: October 16 2002 19:54 | Last Updated: October 16 2002 19:54
<http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&;
c=StoryFT&cid=1033849059661&p=1012571727088>

For almost a decade, the European Union and the US have pushed each other
to extend the terms of existing and future copyrights. First came an EU
directive in 1993, which increased member states' copyright terms to the
life of the author plus 70 years. Not to be outdone, the US Congress
followed in 1998 with the Sony Bono Copyright Term Extension act, which
slapped an extra 20 years on previous limits. Many Europeans are now
pushing for another extension, and so it has threatened to continue.

But two events last week give new hope that this elaborate international
dance, which has prevented thousands of famous works from becoming public
property, may at last be coming to an end.

In Washington on Wednesday, the US Supreme Court considered arguments in a
case challenging Congress's latest 20-year extension of copyright terms.
Then, on Friday, Taiwan rejected US demands that it increase its copyright
terms by 20 years.

I argued the case in the Supreme Court and so will not make any
predictions about the outcome. But the striking feature of the argument
was that in spite of 600 pages of filings in support of the Sony Bono law,
it was clear that the justices did not believe the extension had anything
to do with the constitutional aim of promoting progress. Rather, they
expressed an impatient contempt for what Congress had done. The question
they were struggling with (rightly) was whether they had the power to do
anything about it.

The justices' impatience echoes a chorus of scepticism that has grown up
around term extensions. When Congress first passed the statute, Richard
Epstein, my co-panellist on the new economy policy forum, called it a
giveaway of public property to private interests such as the Disney
Corporation, whose copyright on Mickey Mouse had been due to expire in
2003. In the Supreme Court, a brief filed by 17 economists, including
Nobel Prize winners, documented the extent of the giveaway. Copyright
terms, they argued, were already extraordinarily long. So extending them
could not inspire more creativity than it stifled. Intel, the world's
biggest chipmaker, also filed a brief against the law, as did left- and
right-wing groups alike. Anything that so many from so many different
perspectives can agree on must in an important sense be right. (Indeed,
this may well be the only issue Richard Epstein and I agree upon 100 per
cent.)

It is properly difficult for the Supreme Court to strike a law of
Congress, although it has done so in the context of the commerce power and
if anything, the constitutional text is clearer about the limits under the
copyright clause than under the commerce power. And as the court has
already enforced a number of implied limits on the copyright power, it
would be odd if the only expressed limit turns out to impose no real limit
at all. If the principle of "limited powers" means something principled,
then it should at least mean that where the constitution clearly expresses
limits, those limits ought to be enforced.

Taiwan's struggle is different from that of the Supreme Court. Like any
nation, Taiwan is free to decide how best to advance domestic copyright
policy based on the wisdom of that policy. As there is no credible
argument that the copyright extension has any public wisdom, Taiwan was
right to reject it.

But the US has leant on Taiwan, as well as other nations, to toe its line
on proper intellectual property policy. And few can resist the pressure of
the most powerful partner on the block, which explains why the US had
previously met with little opposition in its push for ever-longer terms.

Taiwan's courage should spur others to follow its lead. And if the Supreme
Court can find it within its powers to enforce the limits of the
Constitution against Congress, it will be hard for the US to punish others
for what the US Constitution says it cannot do itself. There is a chance
here to restore balance to this race for ever-longer copyright protection,
even if the Supreme Court decides that policing Congress in this matter is
not its proper role.

Copyright is no doubt crucial to innovation and growth. But balance in the
grant of copyright is crucial as well. The US has done a valuable job in
convincing the world of the importance of copyright generally. The world
would repay the service if it reminded the US that balance is also
important.

The writer is a professor of law at Stanford Law School