A Mass of Copyrighted Works Will Soon Enter the Public Domain
It may sound quaint to say, but <i>principled</i> application of the law is vital to a free society.<p>Ultimately, law is about power.<p>Under the U.S. Constitution and the Bill of Rights, the federal government is one of limited powers, meaning (at least it theory) that the federal government cannot lawfully act beyond the scope of its enumerated powers as expressly set forth in the constitution.<p>So, consider how profound (again, I know it sounds quaint) is the responsibility of those elected officials to act responsibly in how they legislate about such enumerated powers.<p>Copyright is part of the legislative power defined in Article I of the constitution. Right there in Article I, Section 8 you can see it among the fewer than 20 items set forth for what the Congress is supposed to do:  &quot;The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . To borrow Money . . . To regulate Commerce . . . To establish a uniform Rule of Naturalization . . . To Coin Money . . . To provide for the punishment of Counterfeiting . . . To establish Post Offices . . . To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies . . . To declare War . . . To raise and support Armies . . . To provide and maintain a Navy . . . And To make Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.&quot;<p>I elided a few of the enumerated powers but the above sets forth the great majority of them.<p>Thus, while it might be and often is argued that copyright protection does not actually achieve the things ascribed to it (promoting creative works, protecting artists’ rights in their creative works, etc.), the fact is that our laws are profoundly to the contrary: the idea of promoting the progress of science and useful arts via copyright protection (and patent protection) is right there among the <i>fundamentals</i> defining the essence of the legislative power of the federal government. And, to be listed at all among such powers is in itself profound because the states that formed the United States and ultimately ratified the constitution as a compact among them were jealous not to give any more authority to the federal government than was absolutely necessary.<p>That authority was granted only on the biggest of issues and was checked and balanced by and among the legislative power (Article I), the executive power (Article II), and the judicial power (Article III).<p>And yet there it stands: the power to promote the progress of science and useful arts, &quot;by securing for limited Times to Authors . . . the exclusive Right to their respective Writings&quot;. Right there among the powers to print money, to declare war, to lay and collect taxes, to establish federal courts, and the like.<p>And <i>that</i> is why it was so utterly reprehensible when in 1998 the Congress took existing copyright terms that were to have run for 75 years and retroactively made them 95 years. Yes, the 1923 copyrights were to have expired in 1998 and, here we are, 20 years later, grateful to have them come into the public domain at last.<p>And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? Well, in no sense at all. It imposed new rules retroactively. It provided for absurdly long lengths of copyright protection. It had no bearing at all on the idea of promoting the arts. As such, it constituted nothing more than a crude exercise of naked power utterly divorced from the <i>principled</i> reason for having copyright protection at all.<p>I believe in the value of copyright protection. I think there are excellent arguments to be made in its favor. But the cause of copyright protection was not promoted by the 1998 extension. It was significantly set back because people looking at what that Congress did are rightly revolted by the cronyism that cynically gave special favors to a privileged few and, suffering from the pain thereby inflicted on those who were needlessly burdened by completely arbitrary restrictions on being able to use works that deserved to be in the public domain, concluded that copyright protection itself is a great evil burdening society for no good purpose.<p>To repeat, <i>principled</i> application of the law is vital to a free society. What happened with copyright in 1998 was a gross departure from that important truth. Let us hope it does not happen again as the 2018 expirations are about to occur.