The Sonny Bonny Copyright Term Extension Act was passed in 1998.
Named after the late actor, singer and Congressman, it extended the
term of copyright protection by 20 years for most works, broadly in
line with the position in the EU.
However, the Act was questioned by an non-profit publisher, Eric
Eldred, who makes old books available on-line. The effect of the
Act was to add 20 years to his waiting time for releasing certain
books, even though most of them were long out of print.
Eldred was joined in his action against the US Attorney General
by, among others, a company that reprints books that have fallen
into the public domain and a choir director who buys inexpensive
sheet music in the public domain.
Under the US Constitution, authors and inventors can be given an
exclusive right to their works – but this can only be for a
“limited” time, the limitation recognising the desire for eventual
public access. Eldred and his supporters point out that this limit
has been extended eleven times in the past forty years and this,
they say, “has rendered meaningless” the Constitution’s “plain and
express intent to restrict the duration of monopolies over
speech.”
Pre-1998, works by individuals were protected for 50 years from
the date of the author’s death. Works by companies were protected
for 75 years from the date of creation. The Sonny Bono law
increased these terms to 70 years and 95 years respectively.
If the 1998 extension were deemed unconstitutional, early
drawings of Mickey Mouse would, as of next year, no longer belong
to Disney, the first sketches having been copyrighted in 1928. That
said, the company would still have trade marks to protect it
against anyone wanting to set up rival theme parks.
The song “Happy Birthday to You” is another example of a work
that will be affected. It was first copyrighted in 1935 and the
rights were eventually sold to Warner Communications. The company
is currently entitled to royalties whenever Happy Birthday is sung
or played for commercial purposes. In this way, it makes an
estimated $2 million per year, according to Warner Chappell and
Forbes Magazine. As things stand, the company will continue to
enjoy this income until 2031, unless the law changes, in which case
it will immediately stop receiving royalties.
In the EU, most works are protected for 70 years from the date
of the author’s death or, for works by companies, 70 years from the
start of the year in which the work was created. While the US
action could result in disparity between the US and EU protections,
there is no reason to suppose that the EU would reduce its term of
protection. However, the US case does raise interesting questions
on the balance between the law’s interest in promoting creativity
on the one hand and promoting public access to creative works on
the other.
