Election Section

Supreme Court to hear copyright law challenge

By Gary Gentile
Monday October 07, 2002


LOS ANGELES – Mickey Mouse’s days at Disney could be numbered and Bugs Bunny might soon be wisecracking for someone other than Warner Bros. if an extension of copyright protection is overturned by the U.S. Supreme Court. 

On Wednesday, the court will hear the case that could plunge the earliest images of Disney’s mascot and other closely held creative property into the public domain as early as next year. 

If upheld, the precedent-setting challenge could cost movie studios and heirs of authors and composers millions of dollars in lost revenue as previously protected material becomes available free of charge. 

At issue is a 1998 law that extended copyright protection for new and existing works an additional 20 years, protecting movies, plays, books and music for a total of 70 years after the author’s death or for 95 years from publication for works created anonymously or for hire. 

The law was almost immediately challenged by Stanford University law professor Lawrence Lessig on behalf of Eric Eldred, who had been posting annotated and hyperlinked versions of the writings of Nathaniel Hawthorne, Henry James and others in the public domain on his Web site. 

The plaintiffs stunned many observers by persuading the Supreme Court to hear the case. 

“This is essentially a dispute about policy dressed up as a constitutional question,” The Walt Disney Co. said in a statement. 

The Copyright Term Extension Act was sponsored by late congressman Sonny Bono and quickly became known as the “Mickey Mouse Extension Act” because of the aggressive lobbying by Disney, whose earliest representations of its squeaky-voiced mascot were set to pass into the public domain in 2003. 

But the impact of the law extends far beyond corporations. Small music publishers, orchestras and even church choirs that can’t afford to pay high royalties to perform some pieces, said they suffer by having to wait an additional 20 years for copyrights to expire. 

Lessig claims Congress acted unconstitutionally by extending copyright protection 11 times over the past 40 years. The plaintiffs contend the Constitution grants Congress the right to grant copyright protection for a limited time and that the founding fathers intended for copyrights to expire so works could enter the public domain and spark new creative efforts. 

By extending copyright protection retroactively, largely in response to corporate pressure, Congress has in effect made copyright perpetual, the plaintiffs claim. 

The government and groups representing movie studios and record labels argue that the Constitution gives Congress, not the courts, the job of balancing the needs of copyright holders and the public. 

Backers of the extension also argue that the Internet and digital reproduction of movies and music threaten the economic viability of creating those works, thus requiring greater protection.