Limited times: rethinking the bounds of copyright protection.

• Author: Goldman, Kevin A.

INTRODUCTION

No one born in the last eighty years has seen an original work created in her lifetime fall into the public domain. (1) Each time the term of copyright protection has been due to expire, Congress has passed another extension. (2) This has led some scholars to suggest that Congress is effectively granting these works a perpetual copyright, in violation of the Constitution's requirement that such protection only be granted for "limited Times." (3) Although the Supreme Court has rejected this argument as applied to the current framework, (4) the constitutionality of future, more dramatic extensions remains an open question. Moreover, given the singular trajectory of congressional action towards ever-increasing duration, an eventual collision with the outer bounds of "limited Times" seems likely. This Comment argues that, rather than resisting this trend, Congress should instead follow the progression to its natural conclusion and enact a regime of indefinitely renewable copyright.

Such a suggestion is anathema to the many scholars who view the ultimate expiration of copyright as a public entitlement and the repeated copyright extensions by Congress as perpetually depriving the public domain. (5) Yet this conception of the public domain is unduly narrow. Rather than viewing these extensions as Lucy continually pulling the football away just as Charlie Brown is about to kick it, consider instead the similar case of a young child learning to swim. Her father takes a step deeper into the water and says, "Swim to me." Just as she is about to reach him, her father moves farther back and says again, "Swim to me." This process is repeated until the child discovers that she is able to swim on her own, and thus, the tool she thought she needed (the safety of her father's arms) is in fact no longer required.

In a similar fashion, current copyright law gives artists substantial freedom to appropriate from a protected work at the moment of its creation, via doctrines such as fair us (6) and the idea/expression dichotomy. (7) It is, of course, impossible to know how life would have been different if revisions to the law had not allowed copyright owners to keep works of the last eighty years from entering the public domain. But the arts (8) have thrived even in the absence of copyright expiration, suggesting that artists have "learned to swim" in a world without what has traditionally been thought of as an expanding public domain.

There is an oft-told tale in the literature of arbitration, describing two brothers involved in a highly contentious dispute over the ownership of an orange. (9) The arbitrator eventually discovers that both siblings can be appeased, as one brother simply wants to squeeze the fruit for its juice, while the other seeks only the peel in order to make marmalade. While the Coase Theorem might have suggested that it would not matter which brother initially received the orange, (10) the parable reflects the reality that irrationality will often lead to market failure," whether the participants are feuding siblings or artists fearful that new technology will destroy their livelihood. (12) This Comment proposes a copyright schema intended to reduce irrationality and maximize social wealth by strengthening the rights most important to traditional content owners, while simultaneously securing the appropriation rights most important to consumers and follow-on artists. (13) The ultimate insight of this Comment is that, by making copyright protection renewable indefinitely but narrowing the scope of protection to cover only those works that would act as market substitutes for the original work, the realignment of rights and privileges would reflect the current trajectory of the law, and moreover would better serve the dual interests of copyright owners and content users.

This Comment has four parts. Part I traces the evolution of American copyright law. Part II examines the merits of an indefinitely renewable copyright regime. Part III suggests modifications to traditional copyright doctrines that would complement an indefinitely renewable copyright system. Part IV examines various constitutional impediments to creating an indefinitely renewable term of copyright protection.

1. THE STORY SO FAR: COPYRIGHT LAW, 1790-TODAY

   The history of American copyright law has generally been one of expansion. Although one might expect a legislative body traditionally suspicious of monopolies to continually chip away at the monopolistic (14) property rights given to copyright owners, for the most part Congress has tended to broaden the scope and duration of protection afforded to authors of creative works.

   This Part traces the chronological development of copyright protection, with special emphasis placed on the evolution of protectable subject matter, infringement by derivative works, and the meaning of "limited Times." This examination is not simply intended to establish the current state of the law but rather to demonstrate the trajectory along these axes, in order to speculate on their ultimate bounds.

   The first federal copyright statute (one of the earliest pieces of legislation enacted by the First Congress in 1790) vested in the author of "any map, chart, book or books ... the sole right and liberty of printing, reprinting, publishing and vending [those works] ... for the term of fourteen years from the time of recording the title thereof in the clerk's office.... (15) This copyright protection could be renewed for one additional fourteen-year term if the author was still alive at the end of the first term. (16)

   These initial limitations--restricting what constituted copyrightable subject matter, providing a short duration of protection, and requiring registration--all seem logically grounded in the utilitarian philosophy expressed in the Promote Progress Clause (17) and yet reflect the Framers' general distaste for granting commercial monopolies. (18)

   In 1831, the subject matter of copyright was expanded to include "musical composition[s]," and the grant of protection was increased to twenty-eight years (again renewable for an additional fourteen-year term). (19) However, an author's rights remained limited to publication and copying. (20) Courts did not recognize derivative rights (21) as a distinct entity, instead generally construing the scope of protection quite narrowly. (22) For example, in Stowe v. Thomas, Harriet Beecher Stowe unsuccessfully argued that a German translation of Uncle Tom's Cabin (23) infringed her copyright in the novel. (24) The court, reasoning that copyright protection only applied to literal, word-for-word copying, rejected Stowe's infringement claims, holding that "[a] translation may, in loose phraseology, be called a transcript or copy of her thought or conceptions, but in no correct sense can it be called a copy of her book." (25)

   However, in the latter half of the nineteenth century, Congress began to grant authors certain limited rights in derivative works. (26) In 1856, copyright holders were given the "sole right to act, perform, or represent [their original work of authorship], or cause it be acted, performed, or represented, on any stage or public place." (27) This "public performance" right was expanded in an 1870 statute that allowed "authors [to] reserve the right to dramatize or translate their own works." (28)

   Complementing this increase in protection afforded to authors was a judicial recognition of what has come to be known as the first sale doctrine. According to this principle, an author's interest in her intellectual property is distinct from consumers' personal property rights in legitimately purchased items containing the author's creative expression. (29) Following steady approval by the lower federal courts. (30) the Supreme Court formally endorsed the first sale doctrine in Bobbs-Merrill Co. v. Straus, holding that the sole right to "vend" a work protected by copyright law extended only to the initial sale of any embodiment of an intellectual property; thus "[t]he purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it." (31)

   In addition to these rights in tangible property, courts in the mid-nineteenth century also began to hold that certain types of copying and borrowing were not violations of an author's exclusive rights. In Folsom v. Marsh, Justice Story first articulated the principle (later to become the fair use doctrine) that "a fair and bona fide abridgment of the [copyrighted] work" might not be deemed an impermissible infringement. (32) As the name implies, the fair use doctrine is grounded in the equitable notion that certain forms of appropriation--for example, copying portions of a protected work in order to criticize or parody it--are inherently reasonable. While an author may not like having her creative expression lampooned, a parodic work generally does not act as a market substitute for the original. (33) Some scholars have suggested that the fair use doctrine arose to address the sorts of uses where an author is most likely to be unwilling to license her work for a reasonable fee (such as a criticism and parody). (34) Others (including, recently, the Supreme Court) have suggested that fair use may be required by the First Amendment. (35)

   Whatever the rationale, the judicially created doctrines of first sale and fair use stand out against the general trend of affording copyright holders increased protection. Moreover, they share a recognition that certain rights ought to vest in persons other than the author of a copyrighted work.

   Another notable limitation on authors emerged in the late nineteenth century: the Supreme Court, in Baker v. Selden, held that facts and ideas were uncopyrightable. (36) The Court established the idea/expression dichotomy, holding that while an author's original expression of an idea is protectable, the...