Citation Edit

Sonny Bono Copyright Term Extension Act, Tit. I, Pub. L. No. 105-298, 112 Stat. 2827 (Oct. 27, 1998) (full-text), codified at 17 U.S.C. §§302-04.

Overview Edit

The duration of copyright is one of the major parameters for establishing the amount of protection accorded to authors and other owners of copyright. It is also the principal dividing line between the property rights of such owners and the public domain — that is, the domain of unprotected works which are available to the public for unrestricted, uncompensated use. Under the U.S. Constitution, Art. I, §8, cl. 8, Congress is authorized to grant copyright protection only for "limited Times."

Title I of the Act extended copyright protection for twenty (20) years. The added 20-year period applies retroactively to all works in which copyright subsists.

Prior to the Act, copyright generally endured for a fixed term of 75 years from publication, of for the life of the author plus 50 years after the author's death. Specifically, for post-1977 works (i.e., works that secured copyright on or after January 1, 1978), the term for personal works (i.e., works created by known authors who are not employees of another person or entity) was the life of the author plus 50 years after death. For impersonal works copyrighted on or after January 1, 1978, the term was the shorter of 75 years from publication or 100 years from creation. For pre-1978 copyrighted works, the term was a fixed period of 75 years, computed from the date copyright was secured either by publication with notice of copyright or by registration as an unpublished work with the U.S. Copyright Office. If a personal work was created jointly by two or more authors, the post-1977 term was measured by the life of the last surviving author.

These former terms of copyright had been established by the last general revision of the copyright law -- the 1976 Copyright Act -- which became effective on January 1, 1978. Before that date, the copyright term under the 1909 Copyright Act was a fixed period of years, consisting of a 28-year original term which could be renewed for an additional 28 years. For various reasons, including fairness and the wish to avoid possible impairment of contract, Congress changed the basis for computing the copyright term under the 1976 Act only for post-1977 works. Congress adopted the "life-plus-50" basis for works copyrighted on or after January 1, 1978, and retained the fixed period of copyright for pre-1978 works. However, to balance the two methods of computing copyright terms, Congress added a 19-year period to the maximum 56-year period that otherwise would have applied to pre-1978 works; the resulting term being a total of 75 years.

Rationale for the Extended Term Edit

Proponents of extending the copyright term an additional 20 years by legislation in the 105th Congress made two principal arguments: 1) they argued that economic fairness to the heirs of authors justified the 20 year increase because longevity has increased since the "life-plus-50" standard was first adopted by the Berne Copyright Convention in 1908; and 2) they argue that the United States must match the recent 20-year extension of the copyright term adopted by the European Union[1] in order to avoid application of the "rule of the shorter term"[2] for musical works and other personal works and to enhance the bargaining position of the U.S. Government and U.S. copyright industries in international trade negotiations affecting intellectual property rights.

Summary of Sonny Bono Act Edit

The Act increased the term of existing and future copyrights by 20 years. Other sections of the Act: (1) grant a new, limited termination right with respect to the 20-year period; (2) expand the classes of persons eligible to terminate licensing contracts; (3) grant libraries and nonprofit educations institutions a narrow exemption to use copyrighted works during the 20-year period, if the works are not commercially exploited in that period and copies are not available at a reasonable price, and (4) express a "sense of Congress" view encouraging private sector negotiations to reach voluntary agreements about establishment of an audiovisual works fund to allocate royalties received during the 20-year period from the exploitation of motion pictures.

Copyright term provisions Edit

The Act established the following terms of copyright protection:

  • For post-1977 personal works, life of the author plus 70 years;

All of the extended terms apply retroactively to any work in which copyright existed at the time of the Act, and to the works that were retrieved from the public domain by the 1994 law implementing the Uruguary Round of the General Agreement on Tariffs and Trade (GATT).[3]

Another special provision extends the term of works created but not copyrighted before 1978 (i.e., unpublished, unregistered works) by 20 years (by increasing their expiration date from 2027 to 2047), provided the work is published by December 31, 2002.[4] Preemption of common law/state law copyright in pre-February 15, 1972 sound recordings is also delayed another 20 years, from February 15, 2047 to February 15, 2067.[5]

Judicial challenge Edit

The Act was unsuccessfully challenged in Eldred v. Ashcroft.[6]

References Edit

  1. The European Union adopted a Directive on Copyright Duration, effective July 1, 1995, which generally set a copyright term of life-plus-70 for personal works, 70 years for works copyrighted by legal persons, and 50 years for related rights protection for the rights of producers of motion pictures and sound recordings.
  2. The "rule of the shorter term" is an exception to the general principle of the Berne Convention that works of foreign authors shall be given the same protection as works of nationals of the country where protection is claimed (i.e., national treatment). Article 7 of the Berne Convention permits reciprocity concerning the duration of copyright. The country where protection is claimed is entitled to compare the copyright term of its law with that of the country of origin of the work and apply the shorter term.
  3. The Uruguay Round Agreements Act, Pub. L. No. 103-465 (Dec. 8, 1994). For eligible works, copyright restoration occurred automatically one year after the effective date of the entry into force of the World Trade Organization. Therefore, these copyrights were restored effective January 1, 1996. While the eligibility rules are complicated, in general copyright is restored for "foreign-origin," that is, non-United States-origin, Berne Convention works.
  4. The general revision of the copyright law effective January 1, 1978, preempted common law and state statutory copyrights in unpublished works. Congress granted these works a minimum federal term of 25 years, which could be increased to 50 years under the 1976 Copyright Act by publication on or before December 31, 2002. That maximum term was increased to 70 years, if the work was published before 2003. The purpose of this provision was to provide minimum federal protection for pre-1978 common law works, in order to assure the constitutionality of federal preemption, and to encourage early publication of unpublished works.
  5. Sound recordings were granted a 75-year delay in federal preemption under the 1976 Copyright Act because, unlike other categories of copyrightable subject matter, sound recordings did not enjoy dual common law and federal protection before February 15, 1972, the date federal copyright protection was first extended to sound recordings. Also, state common law and statutory protection for sound recordings was of recent vintage, whereas unpublished books and music, for example, might have been protected for decades or 200 years by state law, prior to federal preemption under the 1976 Act.
  6. 537 U.S. 186 (2003) (full-text).

See also Edit

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