BRINGING THE PEOPLE INTO THE COPYRIGHT ARENA: How The New Awareness Of Copyright Law Issues Can Help In Guarding The Public's Domain

For months, going on years, now, headlines have been filled with news of the legal battles over free content on the Internet — involving Napster and MP3.com, among others — and over the control of the market in computer software delivery systems — involving, of course, Microsoft. As a result, the person on the street now typically has an opinion about whether free content is good or bad, as well as an opinion about whether Microsoft is a marketplace bully or an appropriately aggressive innovator.

As the public becomes more knowledgeable, that dynamic is changing. The hope is that once the people awaken to the fact that copyright law directly affects the quality of their lives, their interest will be held long enough to focus on issues beyond the Internet and Microsoft. When they do, Congress will be forced to analyze industries' requests for copyright amendments with greater care, in light of the public good and not just the asserted good of the industry affected.

The issue deserving the public's closest attention right now is the ever-extending length of the copyright term — that is, the number of years after creation of an original work over which its copyright extends. The copyright term began as a modest 14 years (renewable for 14 more years), graduated to 28 years (renewable for 28 more years), and then expanded again to a term of the life of the author plus 50 years.

Now our whopping copyright term is equal to the life of the author plus 70 years. That is staggering: We have reached a point where use of a work can be forbidden by the author or his heirs or assignees for the author's entire lifetime, and then for two generations thereafter.

On its face, having a copyright term this long simply makes no sense at all, because the vast majority of works are not valuable for that long a period of time. But a glance at the politics of copyright law provides a quick explanation for how a term this long could have come about: Those with copyrights on works that are extremely successful, and therefore valuable for many decades, asked for the extension. And they got it. Works poised to fall into the public domain were scooped back under the umbrella of copyright protection, thereby lengthening the profit trajectory for the few works whose value is so durable that it lasts several generations.

Copyright seeks to reward authors by protecting their original expression. But that reward is harnessed to an important constitutional requirement. Because the reward of copyright protection is intended to increase society's progress of knowledge, not the individual innovator's coffers, works may only be protected, in the Constitution's words, for "limited times." The author gives an original work to society; society permits the author to profit on the work (if the market likes it); but eventually the work is supposed to fall into the "public domain" — or, more accurately, the public's domain.

There can be no question that Lessig is right as a matter of policy: The term has gotten too long. However, it is exceedingly hard to pin down the constitutional argument that would forbid Congress from creating a term that lasts the life of the author plus 70 years.

First, as noted above, the Constitution only requires "limited times," with no more specificity. And the term of life plus 70 years, while lengthy, is "limited." Moreover, there is no constitutional history that further illuminates or limits the Constitution's language on this issue — and that might provide a sense of how many years the Framers might have thought proper.

Second, the issue puts judges in an extraordinarily difficult position in the global copyright economy. The European Union protects copyright for life plus 70 years. It is possible that a holding that the United States, due to the Constitution, is forbidden from mandating the same term would disadvantage United States authors and copyright-based industries such as music and publishing, as compared to their European counterparts. A court might be understandably reluctant to interpret the vague constitutional language of the Copyright Clause in a way that not only significantly affects the global economy, but also does so in a way that may hurt American companies.

These constitutional constraints, and institutional constraints on the judiciary, mean that the people hold the responsibility to put the brakes on the seemingly endless drive to expand copyright duration. Although Professor Lessig's effort to get the Sonny Bono Term Extension Act declared unconstitutional deserves respect, the constitutional arguments are very difficult to win. Thus, it would seem that only public pressure can stem the tide of continuing copyright expansion.

Indeed, the limited copyright term the Constitution envisions is a natural compromise between those who prefer proprietary content, and those who prefer free content. The problem is that so far, the former have dominated the relevant law, extracting an improperly lengthy period, and the latter have paid too little attention, failing to lobby for works to move more quickly into the public domain. They have been distracted by the promise of free content from seeing this middle path.

This straightforward issue deserves close public attention. And once it does, it should start a discourse among the people about copyright law. Many other intellectual property issues deserving public attention are waiting in the wings, as well. It may well be possible to transform the regulation of creative products into an arena where the public good, not just private profit, is paramount. That would be a revolution — one started by the Internet Era, but one that has been sorely needed for decades.