It has been said that no matter what the topic is, the Simpsons has addressed it. I try to make use of this whenever possible, only really considering a paper good if I can work a Simpsons quote in somewhere. Last semester, though, I was writing a research paper on copyright terms and couldn't find anything germane to the topic. Finally I turned the paper in, quote-less. The following Sunday, what does the Simpsons do? It opens with a bit about copyright that would have fit perfectly into my paper. The episode begins with the Simpson family out singing Christmas carols. They come to a house, singing the song ``Sleigh Ride,'' and are greeting by a man who is obviously a lawyer. ``Cease and desist.,'' he orders, ``You are forbidden to perform that song without paying royalties to the copyright owner.'' ``Nobody owns Christmas carols,'' Marge objects, ``they belong to everyone, like grapes at the grocery store.'' ``Not true,'' the lawyer retorts, ``but you are welcome to sing the many beloved public domain carols.'' He goes on to list several ancient songs, to all of which Homer objects.
This episode of the Simpsons addresses in satire what is actually a serious issue. Copyright in the United States was established in the Constitution, but the system we have today is not at all the one that the founding fathers envisioned. Our nation has a problem - the public domain has come to be treated as a static relic of antiquity instead of a vibrant pool of building blocks. At fault is the continued lengthening of copyright terms, and continued expansion of copyright protection. The solution? Legislation must be passed that would restore copyright to something more closely resembling its original intent. That is why I come before you today resolved that the continued lengthening of copyright terms has damaged our nation's creative potential, and that the only way to reverse this course is through legislation.
First, to understand why current copyright policy is a problem, you must understand the alternative. Though academics argue over what the public domain really is, it can be effectively understood as everything outside of copyright. This includes both works not eligible for protection - for instance facts or numbers - and also works which have seen their protective terms expire. A paper published by the United Nations Educational, Scientific, and Cultural Organization says that the public domain is a source from which authors may draw inspiration. Its contents may be used ``as raw material and a kind of "suggestion box" by fresh generations of creators.'' Countless books and movies have drawn their ideas from the public domain works of Shakespeare. Virtually the entire Disney cartoon library is a product of tales found in the public domain. As a source of free material its economic impact is immeasurable. Yet, despite this, copyright exists to regulate what is and is not available for such use. The problem we face today is that the flow of works going into the public domain has been reduced to a trickle. The fountain of ideas that has been the basis for so many great works is not being renewed. If this trend is allowed to continue, it will surely harm the artistic ability of our nation.
Now that we understand the problem, we need to look for the cause. What is it that is damming the flow of works into the public domain? It is United States copyright policy. To see where current policy is failing, it is helpful to look back at why copyright was initially created. In Article 1, §8, of the Constitution, Congress is given the right ``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.'' Copyright is not a natural right, it is one given by the people to authors. Thomas Jefferson, in a letter to James Madison, wrote that ``This principle that the earth belongs to the living and not to the dead ... renders the question of reimbursement a question of generosity and not of right.'' When created, the copyright system was held in a balance. On the one hand were the rights of those who would create information; on the other stood the rights of the public. In order for the public to agree to give up certain rights to the copyright holder, they must receive something in return, in this case the utility derived from additional knowledge entering the public domain. A key aspect of this balance was the requirement that copyright terms be limited. Initially, limited meant 28 years. Since then the term has been lengthened four times. For a work produced by an author, limited now means life plus seventy years. Think about how long that really is. If I were to produce a work today, and then live to be only 80 years old, my work would not enter the public domain until 2132. My work would receive copyright protection for almost 130 years. These term extensions do not only apply to new works, instead they also apply retroactively to works that have already been created. Here we see another disconnect between original intent and current implementation. How can retroactive extensions promote the arts? USC Annenberg Fellow David Bollier writes, ``If copyright is intended to induce creators to create new works, the law is clearly absurd: a retroactive extension of copyright protection will not induce dead authors to produce new films, songs or literature.'' These two aspects - the length of terms and their retroactive extension - were the main points of a lawsuit known as Eldred v. Ashcroft that made its way up to the Supreme Court. An article by Lawrence Lessig, lead lawyer for the plaintiff in Eldred, pointed out that of 10,027 books printed in the year 1930, only 174 were still in print at the time of writing. Though all would have originally had their copyright expire in 1987, term extensions have locked all of these works up until at least 2019. These works provide a perfect illustration of the way in which current policy devalues the public domain.
Faced with the problem and its cause, we must now find a solution. The Eldred case took the judicial route, hoping to get the term extensions ruled unconstitutional. The approach failed. That is why we must now take a legislative approach to change. The Supreme Court has shown its unwillingness to take action on this issue, so the problem must be settled in the very venue in which it was created - the Congress. Those responsible for the Eldred case have crafted a proposed law, which was introduced to the House of Representatives as the Public Domain Enhancement Act. This act starts small. It looks to reverse the impact of the latest copyright term extension, passed in 1998. That extension changed the copyright term from life plus 50 years to life plus 70. What this act would do is require copyright owners to register to receive the extra 20 years, instead of granting it automatically. The Eldred website estimates that 98% of copyrighted materials are no longer providing economic benefit after 50 years, and the idea is that copyright owners will have no incentive to register unprofitable works, and would therefore allow them to fall into the public domain earlier than they currently would. Sudden large scale changes to the copyright system have the potential to create chaos, so this act proposes a small change, one that has a chance of being implemented. Once this is in place, it can be the building block upon which other change rests.
Copyright law is a vast and muddy arena. Once a simple economic incentive to help authors create books, copyright law is now tied up into the burgeoning field of intellectual property. It is an animal very unlike what it was intended to be. As we've just seen, the problem is that the public domain has been all but forgotten. The cause is current copyright policy, in particular the length of copyright terms. To address this cause, we resolve that legislation must be passed to set a new direction for copyright. The proposed change may be small, but it is the first step toward a renewed public commons.