My recent paper, Escape From Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, includes an argument that the Copyright Act does not strike a delicate balance between public and private interests. The paper describes how federal legislation has steadily increased the term of copyright, the subject matter covered by copyright, and the remedies for infringement of copyright. Even the Copyright Act itself has expanded over the years. The evidence suggests that federal lawmakers favor expanding the rights of copyright owners over all else--including the public interest. I conclude that the Copyright Act suffers from statutory failure and describe a way to escape its reach.
The above chart illustrates the most easily quantified evidence of the expansion of U.S. copyright law: the trend of the general copyright term (that is, for works not created anonymously, pseudonymously, or for hire). The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The interim renewal acts of 1962 through 1974 ensured that the copyright in any work in its second term as of September 19, 1962, would not expire before Dec. 31, 1976. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years. As the chart reveals, all but the first of these statutes extended copyright terms retroactively. In calculating copyright terms based on the life of the author, the above chart conservatively assumes that authors create their works at age thirty-five and live for seventy years.
Please note that this version of the chart amends the originally published one in response to the helpful comments of Prof. John Rothchild. Specifically, the present version of the chart includes data relating to the 1962-74 interim renewal acts and shows the retroactive effect of the Sonny Bono Copyright Extension Act to reach back to 1923. I am deeply grateful for Prof. Rothchild's careful attention and diligent scholarship.
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