Patents; Congress has extended its protection for Goofy, Gershwin and some moguls of the Internet.
By Sabra Chartrand
Published: October 19, 1998
CONGRESS moved to rewrite American copyright law earlier this month when it passed two hotly contested pieces of legislation. The first lengthens protections by 20 years for an array of 20th century cultural icons, including Mickey Mouse. The second guarantees on-line providers of artistic material that their responsibility for copyright infringement will be limited as the digital age progresses.
On Oct. 7, a year and a half after the Copyright Term Extension Act was first introduced and after intense lobbying for it from powerful copyright holders like the Walt Disney Company and Time Warner Inc., Congress passed the bill and extended the life of copyright protection for the creators of original works. Since 1976, copyrights have been good for the life of an artist plus 50 years.
The new legislation lengthens copyrights for works created on or after Jan. 1, 1978, to the life of the author plus 70 years and extends copyrights for works created for hire and owned by corporations to 95 years, from the current 75.
With its vote, Congress prevented Disney's copyrights for several of its most lucrative cartoon characters from becoming public property in the next few years. Mickey Mouse, first copyrighted in 1928, had been set to pass into the public domain in 2004; Pluto, Goofy and Donald Duck would have followed in 2009.
Several days after the copyright extension legislation passed, the House and Senate approved the On-Line Copyright Infringement Liability Limitation Act. That legislation protects Internet service providers from liability for unwittingly transmitting material that infringes on a copyright.
Both bills generated plenty of controversy during the last year. Opponents argued that they were unconstitutional, stifled creativity and research, or threatened privacy and competition. But the proposals had powerful support from large corporations, artists' interest groups and the Patent and Trademark Office.
Both bills fit neatly into the patent agency's efforts over the last several years to modify American intellectual property laws so that they ''harmonize'' with those in Europe and Japan. In 1995, controversy raged around a bill that altered the life span of an American patent from 17 years from the date of issuance to 20 years from the date of application -- making United States law identical to patent-term laws in Europe and Japan. It passed anyway.
The philosophical basis for copyright protection is twofold: to protect the rights of artists to profit from and control the use of their work and to preserve public interest by guaranteeing that eventually the right to use the works will pass into the public domain.
Arguments over which of those purposes takes precedence have flared off and on since the first copyright law was passed in 1790. It bestowed protection on artists for 14 years from publication, with an option for a further 14-year renewal. That legislation lasted until 1831, when the initial term was extended to 28 years with a 14-year renewal. In 1909, the renewal term was stretched to 28 years. Then, in 1976, the renewal period was extended again to 47 years and copyright protection for the life of the author, plus 50 years, was given to anything published after 1976.
That law seemed to satisfy artists and corporate copyright holders until the expiration date of many valuable copyrights drew near. An impressive list of mid-century works of art were set to lose their copyrights over the next few years, including the songs of George and Ira Gershwin as well as the Disney cartoon characters. This would have happened just as the potential for new uses of characters, songs and images is expanding with new markets on digital television, cable services and the Internet.
In Europe, artists and their heirs already had two extra decades to control and profit from copyrighted works. So in the United States, heirs like the Gershwin Family Trust, large corporations like Disney and Time Warner, and organizations like the Motion Picture Association of America and the American Society of Composers, Authors and Publishers began lobbying for a change in Federal law.
Opponents argued that copyright holders were trying to change the rules of the game they had originally accepted and said that creative and cultural expression would be stifled if the public was not allowed free and fair access to works of art.
Copyright holders and their heirs, in turn, insisted that artistic work is property, just like real estate, paintings or jewelry, and that they should be able to pass on their wealth to their descendants. Their supporters said that if American works of art fell into the public domain 20 years before European ones, the United States would lose its advantage in the international trading arena.
The global economy was cited as a central reason for the other piece of copyright-related legislation. To protect content on the so-called information superhighway, Congress voted to limit liability for on-line copyright infringement. Proponents called it a big step forward in freeing companies to expand into electronic commerce and deliver movies, music and other content over the Internet.
The bill limits the infringement liability of Internet access providers that unknowingly store, transmit or link World Wide Web users to copyrighted material. Providers like America Online or Yahoo will not be liable if the transmission is initiated by another person, if the storage or transmission happens via automatic technological processes and if no copies of the material are kept any longer than necessary to complete the transmission. The provider is also exempt from liability if it did not know that the material in question infringed a copyright and did not make money from any activity directly related to infringement.
The bill is so-called implementing legislation for two treaties agreed upon by the World Intellectual Property Organization, and Congress must still ratify those treaties. Even though the 105th Congress is close to adjournment, other copyright-related proposals are still pending. A list of pending legislation is available on the United States Copyright Office's site on the World Wide Web (http:// lcweb.loc.gov/copyright/penleg.html).
President Clinton is expected to sign both newly passed bills into law. A text of the Copyright Extension Act can be viewed on the Web (http:/ /thomas.loc.gov/cgi-bin/query/ z?c105:S.505:), as can a text of the On-Line Copyright Infringement Liability Limitation Act (http://thomas.loc.gov/cgi-bin/query/ z?c105:H.R.2281:).