The Supreme Book on Sex

The United States Supreme Court agreed on Tuesday to consider two cases that have implications for the Internet, voting to review one suit brought by online book publishers challenging certain aspects of the Copyright Term Extension Act (CTEA) passed in 1998 and another involving the constitutionality of some details of Internet registries for convicted sex offenders.

The CTEA became effective on Oct. 27, 1998, extending protection by 20 years for works copyrighted after Jan. 1, 1923. Works copyrighted by individuals since 1978 got “life plus 70,” rather than the existing “life plus 50”; and works made by or for corporations, known as “works made for hire,” got 95 years.

Almost immediately the bill became known as the Mickey Mouse Act because of Disney’s efforts and millions to get the legislation passed before the copyright on the cartoon character expired and entered the public domain in 2004. Other movie studios, along with major book and music publishers also contributed lobbied and contributed millions for the passage of the bill.

Specialty publishers, however, were opposed. The Higginson Book Company, one of the plaintiffs in the case before the Supreme Court and a publisher of genealogies and local histories in Salem, Mass., was barred from publishing a number of genealogies and local histories that have no mass market value but are of interest to individual researchers.

According to Laura Bjorklund, general manager of Higginson, the company often can’t find the original copyright holders and, under the CTEA, are barred from publishing the work without permission. Because of the difficulties in tracking the authors or heirs of such old works, the Act effectively means that the Higginson Book Company will be unable to reprint any books copyrighted in 1923 for another 20 years.

The suit challenges the public’s right to the material and raises an interesting series of questions, including:

  • Ira Gershwin’s estate requires that Porgy & Bess be performed only with black actors;
  • “Happy Birthday to You,” protected until 2031, technically cannot be performed in public without a license; waiters aren’t supposed to sing it unless their restaurants pay royalty fees;
  • The 19th-century cartoonist Thomas Nast, who invented the modern version of Santa Claus, also created the current image of Uncle Sam and drew the symbols for the Democratic and Republican parties. If Nast’s creations were under the CTEA, the government would have had to pay Nast’s heirs for recruitment posters; both political parties would have had to pay fees, as would every department store come Christmas time.

  • Some lawyers characterize the CTEA as “copyright creep.” The first copyright laws, passed in 1790, gave authors a maximum protection of 28 years. Congress then extended the limits in 1831, 1909, and throughout the 1960’s and again in 1976 before approving the CTEA in 1998.

    The plaintiffs in the Supreme Court case argue that the CTEA infringes on freedom of speech, contending that extending copyrights that would have entered the public domain privatizes those rights improperly. They also claim the CTEA violates the Constitution because it fails the copyright clause’s “incentive” requirement. Since the new law extended protections retroactively to works created by now dead authors, the plaintiffs argue that the act fails the incentive clause.

    Accepting an appeal from the State of Alaska, the other Internet case the Supreme Court agreed to hear involves how far back states can go in listing convicted sex offenders on Internet registries. Passed in 1994, Alaska’s law was made retroactive 10 years, requiring people who had already served their prison terms — and whose original punishment did not include having their names listed on a registry — to be listed by name in an Internet registry. The retroactive portion of the law was struck down by an appeals court that said it is unconstitutional to punish someone twice for the same crime.

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