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  • Writer's pictureDavid Baker

“How long will my copyright last?”

In a well-known Tootsie Pop® commercial, a Curious Boy asks the Wise Old Owl, “Mr. Owl, how many licks does it take to get to the Tootsie Roll® center of a Tootsie Pop®?” Obligingly, Mr. Owl unwraps the candy, says, “Let’s find out,” and begins to lick the candy. Mr. Owl counts out, “One. Two. Three.” and then loudly bites into the candy, proclaiming, “Three.” Determining the duration of a copyright can be like trying to determine how many licks it takes to get to the Tootsie Roll®.

Generally speaking, a work that was created on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. Questions of interpretation arise when works created on or before December 31, 1977 are considered.

Before 1978, copyright protection was only available to owners who actively renewed their copyrights and those who failed to renew their copyrights allowed their works to pass into the public domain. The number of orphaned works was limited by the renewal requirement and it served as a filter that passed certain works into the public domain. This was changed in 1992 when the Copyright Term Extension Act (CTEA) and in 1998 when the Copyright Renewal Act (CRA) eliminated the renewal requirements for works created between 1964 and 1977. The effect of these acts was to increase the length of the average copyright term, and thereby reduce the number of works entering the public domain. The change was most noticeable for works that have little commercial value and provided little incentive for creators to renew the copyright.

In January 2007, the U.S. Court of Appeals for the Ninth Circuit case considered an appeal of a lower court ruling by the plaintiffs in the Kahle v. Gonzales case. Those plaintiffs have built an "Internet library" that offers free access to digitized audio, books, films, websites, and software and they make digital versions of "ephemeral" films available for free on the Internet. Further, they provide public access to works that allegedly have little or no commercial value but remain under copyright protection. The difficulty and expense of obtaining permission to place those works on the Internet is overwhelming because ownership of these "orphan" works is often difficult, and sometimes impossible, to ascertain. The plaintiffs in Kahle challenged the constitutionality of the CTEA and the CRA in an effort to severely limit the length of protection afforded copyrights and grant themselves easier access to unprotected works for commercial purposes.

However, the Ninth Circuit determined that the plaintiffs' claims already had been effectively answered by the U.S. Supreme Court decision in Eldred v. Ashcroft. Eldred explicitly held that the CTEA functioned to place existing and future copyrights in parity and was constitutional. In Kahle, the plaintiffs' claims were "essentially the same argument, in different form, that the Supreme Court rejected in Eldred." Further, the acts did not violate the Copyright Clause's "limited Times" prescription. [The Copyright Clause grants Congress the 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." U.S. CONST. art. I, § 8, cl. 8.] Accordingly, the current copyright term provided by Congress in the acts is constitutional.

At the end of the Tootsie Pop ® commercial, the Unseen Narrator philosophically intones, “How many licks does it take to get to the Tootsie Roll ® center of a Tootsie Pop®. The world may never know.” Copyright durability may be confusing and, at times, contentious, but Mr. Owl (or, better yet, Mr. Attorney), should be able to provide a pretty good idea if you just ask.

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