So instead of the steady entry into the public domain of works whose copyrights had expired, CTEA mandated that no additional copyrighted works would enter the public domain from January 1, 1999 through January 1, 2019.
Consequently, CTEA provided a substantial windfall to holders of valuable intellectual properties for which the copyright would have otherwise expired.
This 20-year moratorium imposed by CTEA is now approaching its end. And the Congress that will be elected in November 2016 will face a decision: to either allow CTEA to quietly expire or vote to further extend the term of copyright.
What will be the consequence if the term of copyright is further extended?
As an academic librarian and a student of the history of copyright, I believe a further extension to the term of copyright will be detrimental to the public good.
U.S. law and copyright
Consider the example provided by a single, somewhat unremarkable book.
On July 21, 1924, a U.S. Army officer named Walter C. Sweeney Sr. registered the copyright for a nonfiction book, Military Intelligence: A New Weapon of War, based on his experiences in the First World War.
Under the U.S. laws in effect at the time, the term of copyright for this book was 28 years with the possibility of extending for an additional 28 years. On July 7, 1952, Major General Sweeney, by then retired, renewed his copyright. Thereby his exclusive rights to his work were extended to January 1, 1981.
Though it cannot be known with certainty, it is possible that Sweeney was still receiving royalty payments for Military Intelligence as late as 1952. However, by that date it is also possible that he may not have seen a royalty payment in years. Save for an obscure translation into Chinese undertaken in 1946, Military Intelligence was never reprinted following its initial publication in 1924.
By 1952 all the new (i.e., royalty-generating) copies could have been already sold through normal channels or simply disposed of when the original publisher, Frederick A. Stokes Company, was bought out by J.B. Lippincott in 1943.
Regardless, it is entirely likely that by the time New Year’s Day 1981 rolled around, the expiration of Sweeney’s copyright would have caused no financial harm to his estate. (Sweeney died a widower in 1963, and only one of his three children was still alive in 1981.)
Like the vast majority of works, the economic value of Military Intelligence expired decades ahead of its copyright. For every The Great Gatsby that continues generating revenue decades after its début, there are tens of thousands of works like Military Intelligence whose economic shelf life lasts a few years at best.
So, what’s the point?
Here is the twist.
This book did not enter the public domain in 1981. Instead, it remains to this day a copyrighted work. And, under current law, will stay that way until it enters the public domain on January 1, 2020, more than 95 years after its initial publication.
Why has Military Intelligence remained in copyright for nearly four decades longer than its author had any expectation it would?
The reason is that the U.S. Congress keeps extending the term of copyright. In 1976, new copyright legislation increased Sweeney’s 1952 copyright extension from 28 to 47 years.
In 1998, CTEA unilaterally extended the copyright of all still-in-copyright works created after January 1, 1923. The chief justification for CTEA was that it brought U.S. copyright in line with European copyright as specified in the Berne Convention, which prescribes that copyright should last at least 50 years after the author’s death.
The chief criticism to the law, as expressed by the likes of academic and attorney Lawrence Lessig, is that Congress' retroactive extension of copyright terms benefits a handful of corporations like Disney and the heirs of commercially successful artists like Irving Berlin in defiance of the constitutional mandate that copyright law protect the rights of creators for a limited time rather than in perpetuity.
In that process, millions of works that no longer bring, or never brought, any economic benefits to their creators or their creators' heirs are today bound by the same laws that protect commercially successful works such as the first Mickey Mouse film, Steamboat Willie, and Berlin’s “Puttin’ on the Ritz.” (Both of which would today be in the public domain if not for CTEA.)
Why it matters
So who cares if one obscure and hopelessly outdated book about military intelligence is tangled up in the grabby tentacles of the copyright octopus?
Aside from a few military historians, probably nobody. But if it were to turn out that, unlikely as it may be, Military Intelligence contains some facts, wisdom or insight that could make the world a safer, happier, or more just place, the whole world should care.
As it stands, however, the world cannot know what Military Intelligence has to offer save for those who already own a copy, have access to one of the roughly 100 copies scattered among various libraries, or are willing and able to supply the US$25 to $70 asking price for a used copy (not a penny of which goes to the author’s estate).
Public-good entities such as HathiTrust and Internet Archive cannot make the digitized full text of Military Intelligence (a work with zero economic value) freely available.
And what if, against any reasonable expectation, someone were inspired to create a play, song, film, graphic novel, or other work derived from Military Intelligence?
At worst, tracking down the current rights-holder for permission to create a derivative work would prove impossible; at best, the process would be time-consuming and costly. Even if tracked down, the current rights-holder could quash any attempt to repurpose Military Intelligence by demanding an exorbitant permission fee or simply refusing to cooperate. If you are holding your breath for the premier of Military Intelligence: An American Musical, don’t bother.
Of course the problem with current copyright law is not the locking up of any one book. The problem is the locking up, for ever-increasing lengths of time, of the mass of works that should be freely available to fuel the creation of new works.
A perpetual copyright?
Will the corporations and individuals who hold old, but still valuable, copyrights allow works they consider to be their private property to march, year by year, into the public domain? Or will they lobby Congress for another 20 or 40 or 100 years of copyright extension?
It seems logical to assume that holders of valuable copyrights will lobby the 115th Congress to extend the term of copyright. Lobbyists were certainly on hand to push for the passage of CTEA back in the late 1990s – a victory they achieved in the face of generally weak and disorganized opposition.
This time around, I believe, any lobbyists pushing for longer copyright terms should have a harder time. The emergence of the digital into everyday life has created a significant body of academics, legal thinkers, librarians, and consumers who care a great deal about the impact copyright legislation has on their lives.
In the past, organizations that care about the public’s stake in copyright – for example, the Electronic Frontier Foundation, the American Library Association and, Creative Commons – have stepped up to oppose other unfair copyright legislation, such as the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA).
Should the 115th Congress be pressured into extending copyright yet again, these organizations and their allies will need active public support. It is not enough to sit back and hope that Internet petitions and angry Facebook rants will prevail.
While Congress may not be able to make copyright perpetual, it could make the terms so long that copyright might as well last forever. If this is allowed to happen, millions of works that should be freely available for use by current and future generations of scholars, artists, and the just plain intellectually curious will remain hidden in the shadow of copyright – inaccessible and all but invisible.