November 22, 2002 10:00 a.m.
Right and Wrong
The copy-right infringement.
By John Bloom
[
www.nationalreview.com]
hoever turned "copy right" into one word had to be a lawyer. We don't say "freespeechright" or "gunright" or "assemblyright" or "religionright."
As a result, 99 percent of the public thinks that a copyright is some kind of formal legal document. They think you have to go get it, or protect it, or defend it, or preserve it, or buy it, or hire a lawyer to make sure you have it.
On the contrary, it's simply a right, like all our other rights, and it goes like this: Whoever creates something that has never been created before has the exclusive right to copy it.
It's not the person who registers it with the Library of Congress. It's the person who does it first. Just the act of creation makes the right kick in.
Unlike other rights, though, this one is transferable. You can sell your copyright, license your copyright, or give your copyright away. What's most often done is that you let a big company — say, a book publisher — use the copyright for a specific period of time, in return for money, and at the end of that period the right reverts back to you.
One other difference: This is a right with a specific term.
The Founding Fathers wanted that term to be 14 years, with an additional 14 years if the author were still alive. After 28 years, they figured you'd had your chance to exploit your creation, and now it belonged to the nation at large. That way we would never end up with a system of hereditary privilege, similar to the printers guilds of Renaissance England, who tied up rights to dead authors and tightly controlled what could or could not be printed and who could or could not use literary material.
In America, land of free ideas as well as free people, this would never happen, they said.
Well, it's happened. It's happened because for years now Congress has allowed it to happen. We now have an exact replica of the medieval Stationers' Company, which controlled the English copyrights, only its names today are Disney, Bertelsmann, and AOL Time Warner. The big media companies, holding the copyrights of dead authors, have said, in effect, that Jefferson, Madison, and Hamilton were wrong and that we should go back to the aristocratic system of hereditary ownership, granting copyrights in perpetuity. To effect this result, they've liberally greased the palms of Congressmen in the form of campaign contributions — and it's worked.
In the name of Mickey Mouse and other American icons, we have gradually lengthened that 14-year limit on copyrights. At one time it was as much as 99 years, then scaled back to 75 years, then — in one of the most anti-American acts of the last century — suspended entirely in 1998. The Sonny Bono Copyright Term Extension Act of that year says simply that there will be no copyright expirations for 20 years, meaning that everything published between 1923 and 1943 will not be released into the public domain. Presumably they'll take up the matter again in 2018 and decide whether any of these books, movies, or songs are ever set free. There are 400,000 of them.
What's especially hypocritical about this law is that many of the works produced in this period, such as The Wizard of Oz, are based on works from previous centuries that are already in the public domain. It's as though Congress is saying that it would be wrong for the heirs of the Brothers Grimm to own a perpetual copyright to Snow White and the Seven Dwarves, because it belongs to all people, but Walt Disney's version of it is so sacrosanct it should earn money forever. Besides, if he really is cryogenically preserved, he'll need those royalties when he comes back to visit. (And this was a man who stole from everybody.)
I don't think it's hard to see who was greasing the skids to get a law passed that seems unconstitutional on its face. With 1923 as the cutoff date, all sound movies are protected for another 20 years. All pre-war Broadway musicals are protected. All swing-era music is protected. Even the song "God Bless America" falls into this period, so I hope you people are sending in your residuals.
Fortunately, the Supreme Court has agreed to rule on a case challenging the Bono Act. It was brought by Eric Eldred of Derry, N.H., who started a website for his teenage daughters in which he published online versions of classic literary texts — a site that eventually became a destination for students around the world and received a commendation from the National Endowment for the Humanities. That all changed on Oct. 7, 1998, when the Bono Act was passed.
Congress apparently looked at the whole controversy as a property-rights issue. It's not. It's a free-speech issue.
The Constitution is quite clear on the matter. It says copyrights are to be granted for "limited times." I don't know any definition of "limited" that would mean 75 years plus a 20-year extension plus the chance of getting another extension later. The whole issue was argued three centuries ago, and it was established as a principle of democracy that, when the author is dead, his work becomes the property of all. This was modified slightly to allow the first generation after his death to continue to collect royalties, presumably to protect widows and children. But that's all that was intended. There was no argument ever made for a third- or fourth-generation royalty, much less a perpetual assignment of royalties to a corporation that never dies.
The reason it's important is this: Publishers are in the business of expanding capital. The writers who supply them are in the business of expanding civilization itself.
Tools for expanding capital are available in many forms. Tools for expanding civilization, on the other hand, are a limited commodity. They're resident in the books of Hemingway and Faulkner, the movies of Disney and Capra, and the songs of Kern and Berlin.
Give 'em up. We need 'em. We've got work to do.
It's not just the right thing to do. It's a right.