The biggest legal news in the Intellectual Property Law world this month was the ruling that the owners of the rights to the song “Happy Birthday” could no longer collect royalties. The judge found that they owned not the rights to the composition itself, but only to an underlying arrangement. I recall hearing that Johnny Carson (Jay Leno’s predecessor for you kids – forget it if you don’t know Jay) said that the reason he grimaced every time a guest spontaneously sang the birthday song was that Johnny knew the royalties would cost him.
I’m of course a big supporter of intellectual property rights for creative and inventive folks, because I know that this is part of what motivates y’all to keep creating. The Founding Fathers knew this too, which is why when they were handing out very limited power to Congress, they made sure to include this:
The Congress shall have Power…
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;
As a bit of trivia, please note that this is the only time that the drafters used the word “right” (or “rights”) in the entire Constitution, until the Bill of Rights added on a few more details. So, just as they considered it understood that the right to keep and bear arms preexisted the Constitution and is secured by it, the same is fundamentally true here. Inventors and creators inherently deserve the right to their creations.
But the Framers of the Constitution also knew that you don’t need to make the right last forever to motivate creativity. Even granting government-sanctioned monopoly power for a limited time would still provide an incentive. We all know about the time value of money, and that a perpetual million-dollar per year income stream from an invention is not worth much more than the same income stream that cuts off after 20 years. So the Framers knew that limited terms (duration determined by Congress) made sense to help fulfill the objective that our nation be a well-motivated engine of innovation.
For the first 200 years of our Republic, copyrights lasted 28 years, plus a renewal for another 28 years. If this were still the law, it would mean that next year would be a free-for all on books, movies, and music published in 1960 – and we’d be approaching the years that the work of the Beatles became public domain and could be used in movies, advertisements, and other songs at will, like Beethoven’s 5th can now.
56 years of government-protected monopoly seems to fit the Constitutional empowerment of Congress to enable “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Patents then got 17 years from issuance, and today are 20 years from filing – reasonably limited. These make sense as a motivator to invest in innovation, but not so long to tie up technology.
But in recent times, beginning in 1978, the Hollywood lobbyists have stretched out copyright expiration to “life of the author plus 70 years.” That means that it could be 150 years of protection for a young adult author’s song, book, or other creation. (For corporate works like Disney’s worried about, it’s 95 years from publication).
This is as wrong as the selective extension of drug patent term expiration based on corporate lobbying – for which there is sometimes a reason: FDA trial requirements eat up most of the patent term, yet this is undoubtedly abused.
What harm would there be in letting old Disney movies hit the public domain after 56 years?