Internal Contradiction

The editors of the NY Times see the Eldred decision as an ominous step toward perpetual copyright and the death of public domain:

The court’s decision may make constitutional sense, but it does not serve the public well.

Under that 1998 act, copyright now extends for the life of an artist plus 70 years. Copyrights owned by corporations run for 95 years. Since the Constitution grants Congress the right to authorize copyright for “limited times,” even the opponents of an extended term were not hopeful that the Supreme Court would rule otherwise. This decision almost certainly prepares the way for more bad copyright extension laws in the future. Congress has lengthened copyright 11 times in the past 40 years.

….In effect, the Supreme Court’s decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.

Interestingly, in their own pages two days later, Edward Rothstein disagrees with the premise:

the public domain is larger now than in 1928, not smaller, and the continuing influence of copyrighted works should not be underestimated. Even Disney had to purchase rights to “Winnie the Pooh.” Moreover, his Mickey cartoon was hardly, as Mr. Lessig joked, a matter of “rip, mix and burn,” resembling the actions of today’s compilers and copiers. It was an innovative parody. And courts have tended to allow this kind of enterprise (witness the publication of “The Wind Done Gone,” Alice Randall’s African-American version of “Gone With the Wind.”)

It may be that one reason passions have flared so high is that a dominant style of popular culture in the 1990’s was pastiche, which is indeed hampered by copyright. But if cultural health were really affected by whether Mickey and his contemporaries were in the public domain, there may be other, more serious problems to consider first — like why a truly creative culture can’t find other ideas to work with.

There really are copyright issues to discuss, but not as part of the kind of ideological romance that has grown up in the current debates. A problem is posed by technological innovations that allow easy copying and transmission; there are dangers to the incentives copyright establishes. So new forms of control develop and those controls, in turn, pose dangers. But this is not the war that Mr. Lessig and his colleagues have in mind.

As it turns out, the extension of 20 years means that copyright law has held off for a while what will be a large-scale entrance of television and movies into the public domain. In the meantime, the absence of a public domain has not hampered creativity in either medium. And it will give Mickey and Minnie and Goofy plenty of time to prepare for becoming public figures.