The Chronicle of Higher Education reports on a challenge to the 1994 Mickey Mouse protection act which extended copyright terms and retroactively re-copyrighted some works which had passed into public domain:The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.
Why this article is in the “Technology” section of the Chronicle I’ll never know. Most copyright conflicts nowadays are about digital media, so maybe a rushed editor saw the word “copyright” and plunked it in technology without actually reading it. Because it’s about printed music scores.
“It was a shocking change,” Mr. Golan says over dinner at a tacos-and-margaritas dive near the University of Denver’s mountain-framed campus. “You used to be able to buy Prokofiev, Shostakovich, Stravinsky. All of a sudden, on one day, you couldn’t anymore.”
The Sonny Bono Copyright Term Extension Act (I only call it “Mickey Mouse” because that was its chief beneficiary) has survived legal challenges to its term extensions, but this particular suit takes aim at the retroactive granting of copyright, and the Supreme Court is scheduled to hear it next term.
“If you can’t rely on the status of something in the public domain today—that is, if you never know whether Congress is going to act again and yank it out—you’re going to be a lot more cautious about doing anything with these materials,” says Mr. Golan’s lawyer, Anthony Falzone, executive director of the Fair Use Project and a lecturer in law at Stanford Law School. “You really destroy the value and the usefulness of the public domain in a profound way if the rug can be pulled out from under you at any time.”
As readers of this blog know, I’m an advocate for shorter copyright terms and enlarging the public domain and protection of “fair use” — but this lawsuit doesn’t strike me as a very effective way of changing things. At best, it would put a handful of works back in the public domain, but the main problem of ever-extending terms would continue. Much better would be to persuade Congress to change the laws, perhaps by reminding them of the purpose of copyright, as specified in the Constitution: “to promote the progress of science and the useful arts.” Maybe those Republicans who are so eager to cite specific Constitutional rationales for their legislation would be willing to take that on. Prokofiev isn’t any more likely to write new music if his copyright is extended for another twenty years. It’s a pure giveaway to big businesses like Disney, with no benefit to the public whatever.
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