Time to end the race for ever-longer copyright

[Dave Farber <dave () farber net>]

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
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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

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