Comment: Copyright

Wall Street Journal, Feb 21, 2002

Unfair Use

     The Supreme Court plans to review one of the most memorably named pieces of legislation ever written, the 1998 Sonny Bono Copyright Term Extension Act. That law extended existing copyrights by 20 years to 70 years after the death of the creator, while works owned by corporations are protected for 95 years. The case before the court seeks to overturn the law.

     Not surprisingly, given the focus of this particular corner of the Journal, we're all for writers, artists and others like them. But it is during their lifetimes that creative minds need such protection, so they can keep earning a living from the ideas they have put out in the world and continue to explore and develop those ideas themselves, rather than watching in frustration as someone else takes their ideas and runs with them.

     But dead persons need no such protection, at least not for the 70 years or more now on the books. Such protection interferes with the free and fair use of ideas and forms, which, after that amount of time, assuming they have remained culturally relevant, have surely entered the public domain, morally if not legally.

     Supporters of the 1998 extension argued that it was necessary for American law to be brought into line with that of the European Union. But as the British novelist Julian Barnes wrote on this page three weeks ago, in an article originally published in England, the EU's version of the law has produced nothing but ambiguity, absurdity and litigation since being modified itself in 1993. "At the very least," he wrote, "the situation will be foggy until the full cycle of appeals has been exhausted."

     Defenders of the status quo cite the Internet and the ubiquity of royalty-free information and creative work as a clear and present danger to the interests of writers and others. We think that leaving the current law intact will do nothing more than create an ever-growing cartel of intellectual property that will stifle the continuing growth and spread of ideas.