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Sonny Bono Copyright Term Extension Act of 1998

Pub. L. No. 105-298, 112 Stat. 2827 (1998); 63 Fed. Reg. 71,785 (Dec. 30, 1998)

Signed into law on October 27, 1998, this law extends by 20 years the length of protection afforded to copyrighted works, and thus lengthens the amount of time it will take for a work to enter the public domain. This legislation lengthens copyrights for works created on or after January 1, 1978 (the effective date of the 1976 copyright legislation) to "life of the author plus 70 years," and extends copyrights for corporate, anonymous or pseudonymous works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. For those copyrights in existence prior to January 1, 1978, and which were still in their first term on January 1, 1978, the proprietor of the copyright gains an additional 20 years that may be added to the renewal term (from 47 to 67 years). For copyrights in their renewal term at the time of the effective date of this new law, the term of copyright is extended to 95 years from the date the copyright was originally secured. For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047.

The law applies prospectively, and retrospectively to all works still under copyright on the bill's effective date, which is October 27, 1998, for the provisions referenced herein. This law does not restore copyright protection to any works that are in the public domain.

The law includes an exception that allows libraries, archives and nonprofit educational institutions to treat a copyrighted work in the last (new) 20 years of protection as if it were in the public domain for purposes of preservation, scholarship or research. Conditions that apply to this usage in the last 20 years require a good faith investigation to determine that the work is not subject to normal commercial exploitation, the work or phonorecord cannot be obtained at a reasonable price, and use of the work stops if the copyright owner provides notice to the contrary. See 63 Fed. Reg. 71,785 (Nov. 3, 1998) for interim regulations effective January 1, 1999 on this issue.

Selected Recent Case Law Under the Sonny Bono Copyright Term Extension Act

Kahle v. Gonzalez, (No. 04-17434) Jan. 22, 2007 (9th Cir. C.A.)

This case affirmed the lower court opinion, Kahle v. Ashcroft, holding Eldred was controlling.

Kahle v. Ashcroft (No. C-04-1127 MMC, N.D. Calif)(Nov. 19, 2004)This case brought by the Internet Archive ( a non-profit digital library) and the Prelinger Archives, which archives films, challenged four copyright laws which the plantiffs claim preclude making out of print books, old films, and other items with little or no commercial value available on the Internet to the public. The laws challenged were the Copyright Term Extension Act, the Copyright Renewal Act of 1992, the Copyright Act of 1976, and the Berne Convention Implementation Act. The plaintiffs claimed the laws imposed substantial burdens on speech under the First Amendment without advancing any legitimate government interest, and sought a declaratory ruling that the laws are unconstitutional as applied to works created between Jan. 1, 1964 and Dec. 31, 1977. The works created in this time frame constitute the first class of works in American history where the copyright term was extended without any requirement of renewal. Plaintiffs also sought an order enjoining enforcement of the No Electronic Theft Act whose infringements of a copyright would not have happened but for 17 USC 302-304, as amended by the CTEA

The court granted a motion to dismiss against the plaintiffs. The court relied on Eldred v. Ashcroft to dispose of plaintiffs' claim that the CTEA and the Copyright Renewal Act violate the limited times requirement of the Copyright Clause of the U.S. Constitution, and also to dismiss the other claims brought by plaintiffs. The court quoted the finding in the Eldred case that it is generally for Congress, and not the courts, to decide how to best pursue the copyright clause objectives.

Eldred v. Ashcroft, No. 01-618 Decided Jan. 15, 2003

In a 7-2 opinion authored by Justice Ginsburg, with dissents by Justices Breyers and Stevens, the U.S. Supreme Court upheld the constitutionality of the Copyright Term Extension Act. In this case, the Court granted cert to address two questions: Whether the CTEA's extension of existing copyrights exceeds Congress' power under the Copyright Clause; and whether the CTEA's extension of existing and future copyrights violates the First Amendment.

The Court rejected plaintiffs' argument that retroactive application of the 20 year extension granted in the CTEA to already existing copyrights did not serve to promote the progress of science and was thus beyond the authority of Congress. The Court found there did exist a rational basis for concluding the CTEA promoted the progress of Science, as set forth in the Copyright Clause of the Constitution. Part of the rationale accepted by the Court was that a key factor cited in favor of adopting the law was a 1993 European Union directive instructing EU members to establish a copyright term of life plus 70 years. Consistent with the Berne Convention, EU members were directed to deny the longer term to countries without the same extended term.

The Court also found the CTEA did not violate the First Amendment, and that the "limited" monopolies granted by Congress are compatible with free speech priniciples.The Court's opinion stated "In addition to spurring the creation and publication of new expression, copyright law contains built in First Amendment accommodations."

Justice Stevens, in response to the majority's argument that Congress has extended the term of copyright retroactively in a number of instances, argued "the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case." Justice Stevens also noted the weakness of the majority position with respect to the argument that lengthy terms of copyright are necessary to spur creativity.

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more. (page 20 of the dissent)

Stevens invoked Chief Justice John Marshall's famous words that the Court ultimately decides what the law is. Linda Greenhouse noted the following in the Jan. 16, 2003 New York Times article Twenty Year Extension of Existing Copyrights is Upheld (page A-22):

In quoting Chief Justice John Marshall's famous words from the Marbury v. Madison decision in 1803 - "it is emphatically the province and duty of the judicial department to say what the law is" - Justice Stevens may have been tweaking the majority in the series of federalism cases in which he has been a consistent dissenter as the court has invalidated numerous acts of Congress. Chief Justice William H. Rehnquist and his allies in those decisions have frequently quoted the line from the Marbury decision as justification for the court's active role in policing the federal-state boundary.

Justice Breyer also filed a lengthy dissent, stating that the effect of the CTEA is to make copyright terms "virtually perpetual", and that the practical effect of the law is to inhibit, not promote, the progress of Science.

Professor Lawrence Lessig of Harvard University argued the case on behalf of the plaintiffs. Professor Lessig's comments on losing raise an important question. Will the decision upholding the CTEA benefit the movement to increase the public awareness of and access to intellectual property? For more commentary on the case, see the Lessig web page.


Copyright Slider: An interactive version of the public domain/copyright status chart. If you move the arrow on the page to the date and conditions on publication, the boxes on the left will give you information on whether or not permission is needed for use of the work. This document can be modified for use at your institution by adding contact information, or it can simply be posted as is. Click on the Creative Commons license at the bottom left for more information.

Section 108 Spinner: An interative web page that specifies when libraries and archives can make reproductions of copyrighted materials without the permission of the copyright holder under Section 108.





updated mlo 12-30-17