The term of copyright protection used to be, in certain fact situations, difficult to determine in the United States. Under the statutory scheme in place prior to January 1, 1978, a copyright had to be renewed many years after the work was originally copyrighted or it fell into the public domain. When the 1976 Copyright Act came into force on January 1, 1978, the old renewal scheme (somethings called an “opt in” scheme) was done away with for new copyrights under which a work was protected from the moment of creation for a term equal to the author’s life plus seventy years. Works for hire, on the other hand, are protected for 120 years from creation or 95 years from publication, which ever is shorter.
This meant that works protected under the old law still had to be renewed, while works created under the 1976 act did not have to be renewed, in order to enjoy a full term of copyright protection. This further meant that orphaned works, that is works of little or no commercial value, would stay under copyright protection, whereas the older “opt-in” system would have filtered those works out of copyright protection and into the public domain when no renewal application was filed.
In order to do away with this dual system, with older works having to be renewed while later works required no renewal, two Acts, the Copyright Renewal Act (CRA) of 1992 and the Sonny Bono Copyright Term Extension Act (CTEA) of 1998 eliminated, among other things, the requirement to renew copyright in works created between 1964 and 1977.
In Kahle v. Gonzales the plaintiffs sought to have those portions of the CRA and CTEA relating to the deletion of the renewal requirement declared unConstitutional on the ground that those provisions were inconsistent with the free speech provisions of the First Amendment to the Constitution and with the limited times provision of the copyright clause of the Constitution. The plaintiffs wanted the unrenewed works to fall into the public domain as they offer Internet acces to orphaned works and the cost of trying to determine who might own the orphaned works and then seeking permission to publish the orphaned works was overwhelming.
Two issues were before the Court of Appeals: (1) were the copyright extension provisions of the CRA and CTEA in terms of replacing the old “opt-in” system with effectively an “opt-out” system unConstitutional and (2) was the length of copyright protection (life plus seventy years for other than a work for hire, for example) too long in view of the Constitutional provision that Congress could only protect works for “limited times”.
The plaintiffs lost on both issues. With respect to the first issue, the Court of Appeals indicated that a similar issue had been resolved in the Supreme Court case of Eldred v. Ashcroft, and although the Supreme Court had indicated that altering “traditional contours of copyright protection” could trigger a First Amendment challenge, the first issue raised here has already been effectively decided in Eldred v. Ashcroft in a manner unfavorable to plaintiffs.
With respect to the second issue, the plaintiffs fared no better. Although the Court of Appeals admitted that the issue of whether life plus seventy years was in effect a perpetual copyright and violated the ‘limited term’ provision of the Constitution, had not been before the Supreme Court in the Eldred v. Ashcroft case, the Court of Appeals nevertheless came to the conclusion that the Supreme Court would have upheld the basic life plus seventy year term as being a reasonable exercise of Congressional authority under the Constitution.
The decision by the Court of Appeals is by a three judge panel. The plaintiffs are seeking review of the decision by the full Court of Appeal en banc.
Of course, if the provisions of the CRA and CTEA regarding renewals are thrown out as being unConstitutional, or if the term of copyright protection were thrown out, that means that potentially a very large body of works could be deemed to fall into the public domain causing havoc in many industries and perhaps especially the software industry in the U.S. We suspect that the Court of Appeals simply is not willing to go down that path. The plaintiffs, if they are unsuccessful at the Court of Appeals, will be free to try to entice the Supreme Court to look at these issues by filing a writ of certiorari.”