Yesterday, the Wikimedia Foundation had to remove the Dutch-language text of the Diary of Anne Frank from Wikisource due to the take-down provisions housed in the DMCA (specifically Sec. 512 of the Copyright Act). Remarkably, the Anne Frank text is still copyrighted in the United States, and will be until 2042.
This is one example, unfortunately among many, that showcases the overly restrictive and bipolar nature of US copyright law. Here's why:
- The Copyright and Patent Clause in the US Constitution grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries."
- The term "limited Times" refers to the notion that an owner enjoys exclusive rights over his or her work for a limited period of time before the work enters the public domain, where anyone is free to use it.
- And here's what has happened in the furtherance of the Clause, legislatively:
- In 1790, when Congress enacted the first copyright law, the duration of the copyright term was set at 14 years. The term of copyright was only changed once in the first 100 years of American nationhood.
- The term length continued to snail upwards throughout the 1880s and early- to mid-1900s. In 1831, the maximum limit to the term was raised from 28 years to 42 by increasing the initial term of copyright from 14 years to 28.
- During the next 50 years, the term was increased once again. Congress extended the renewal term of 14 years to 28 years, setting the maximum term to 56 years.
[BUT then came the 1970s]
- Copyright legislation that has been passed since the 1970s has dramatically shifted towards advancing the interests of copyright holders by statutorily extending copyright term lengths with much more frequency.
- Such a policy shift is primarily reflected in legislation enacted during that time--ranging from harsher penalties for infringement to longer copyright terms.
- In the last 40 years, Congress has extended the terms of existing copyrights ELEVEN TIMES, and TWICE for the term of FUTURE copyrights.
- We saw the culmination of this shift in Congress' mindset in the enactment of the Sonny Bono Copyright Term Extension Act. The duration of copyright protection was extended to life plus 70 years for non-corporate works. For corporate works, the duration was now set at 95 years from publication or 120 years from creation, whichever ended up being shorter.
At this juncture, I hope that you can see how contemporary copyright legislation completely runs afoul to the phrase, "limited Terms," in the Copyright and Patent Clause of the Constitution--a phrase that was meant by the Framers to circumscribe the scope of the time period during which a creator enjoys a monopoly over his or her own work.
As Lawrence Lessig, founder of Creative Commons and highly esteemed copyright scholar, critically points out in his seminal book on copyright reform, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity:
"[E]ach time copyrights are about to expire, there is a massive amount of lobbying to get the copyright term extended. Thus a congressional perpetual motion machine: So long as legislation can be brought (albeit indirectly), there will be all the incentive in the world to buy further extensions of copyright."
In sum, the way copyright has been and continues to be legislated in Congress (I think) quite clearly countermands Congress's original intent.