Dear ___________:
Like all Americans should, I have been spending some time learning about the history of our nation and the wonderful document that is supposed to be the rule book by which it is governed. I’m referring to the Constitution of the United States of America, drafted in the 1780’s and written with wisdom that transcends the ages, and is, for the most part, just as applicable today as it was when first ratified.
The President’s Oath - “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.” – which is part of the Constitution, shows a requirement to honor both the words and the spirit of the document. A similar oath is supposed to be taken by members of congress – to support the Constitution.
The Constitution is not hard to read or difficult to understand, despite the centuries since it was penned. The authors obviously believed that any educated person should be able to easily grasp the concepts upon which their new nation would be founded. While in places it easily lends itself to interpretation, for the most part the words leap from the page into the mind of the reader with such clarity that it should not be possible for argument over the meaning.
Article 1, Section 8, Clause 8 is one such example and yet, it is one of the most abused sections of the Constitution with current law running so far from the obvious intent that I find myself appalled that any people claiming to ‘defend (or support)’ the Constitution could possibly have legislated the changes that have happened over the years, as recently as 1998.
Numerous Constitutional lawyers and Law Professors wrote extensively against the Sonny Bono Copyright Extension, showing without room for doubt that the law would benefit only the special interests who lobbied to have it passed, that it would actually HARM the public the people elected to office are supposed to represent and defend.
In the plain words of the Constitution, the 1976 extensions to copyright term went far beyond the allowed time limits. Thomas Jefferson wrote about the subject on numerous occasions and worked to get a fixed term set as the 9th Amendment. His choice would have been 19 years as an absolute maximum. His only doubt on the subject was that he felt it was possible an invention or writing might not be spread across the sparsely populated nation in time for the author/inventor to get a full return on their limited monopoly. With today’s speed of light distribution, this argues for a shorter term instead of a longer one.
“The Congress shall have power… To promote the progress of science and the useful arts, by securing for limited times to Authors and Inventors, the exclusive right to their respective writings and discoveries.”
These are plain words, with obvious intent. The clause has a purpose – to promote progress. The rest of the wording is there to support this purpose. The exclusive right offered to Authors and Inventors is meant as an incentive to the sharing of their work with the public – for giving it to the public through publication.
Copyright, in itself, has no benefit whatsoever to the public. Instead, it is a burden on the public and, in addition to the cost, it is also a form of censorship. The longer the term of the monopoly the further it goes from public interest to public detriment and the censorship it employs becomes exponentially greater with each extension.
The founders of this country and the framers of the Constitution did not believe in what Europeans refer to as natural right when applied to creative works. Rather, their reasoning was that ideas couldn’t be owned by anybody. Any creation belonged to all of the people, for the improvement of the public, to add to the storehouse of knowledge from which everyone could benefit. The limited monopoly was only allowed as a reward for the act of creation, a simple motivation that urges the creator to further effort.
Any copyright that extends beyond the life of the author is quite obviously unconstitutional, since the Constitution offers this exclusive right only to the Author or Inventor and the specified reason for this right clearly does not extend to heirs of the author. To qualify for the limited monopoly, some sort of creative effort MUST be undertaken. This cannot be read to mean life +70, should not be read even to include the entire life of the author, not when the object of the exclusive right is to promote progress. A lazy person who creates one great thing, and is set for life, will never create another. Only greedy people or ones with dynasty in mind will be encouraged to work harder by a reward that goes beyond their death. For most creative people, the opportunity to make a living from their work is all they require in order to continue to create, and many will create even without the promise of reward. These people would create the same works, in the same numbers, for a 19 year copyright or a life +70, or an eternal copyright, therefore the longer term does not fulfill the qualification of promoting progress and instead, hampers it.
A look at hypocritical Disney shows the certain value of the Public Domain. Cinderella, Snow White, Sleeping Beauty, Hercules, The Hunchback of Notre Dame, Beauty and the Beast, on and on and on. They borrow extensively from the Public Domain, bringing back stories from the past, giving them new twists, changing the storylines to accommodate their own ideas. This is not possible with works that are still held captive by copyright. Neither that, nor derivative works like the further stories of Sherlock Holmes, a character touched by numerous sources. A shorter copyright term would see more of these kind of works available for use by current authors.
There can be no valid excuse for passing legislation that violates the Constitution. With that in mind, explain how you can sit in office, knowing that such monopolies exist contrary to the Constitution and do nothing about it. Either that, or do something about it. You were elected by the people, presumably for the people. It is your job to represent public interest, which was not done when copyright extensions were set before the 105th Congress. Nobody appeared to speak for the Public Domain because opponents of the bill were not even notified that it would be presented. Those opponents shouldn’t have been needed as every member of Congress, through the fact of their election to the post, should have been a spokesperson for the Public Interest.
In addition, you must be aware that this is not a matter of what you personally believe. Since this issue was included in the Constitution, receiving the kind of special attention that should have prevented the misuse which is currently happening, you are required to adhere to what it says. Nor does it matter that some previous session of Congress has managed to pass laws that were unconstitutional without being called on it.
It is also unimportant that other nations do not treat copyright in like manner. The United States of America originated as a nation that was different from the rest of the world, the land of the free, a place where democracy was practiced. Our beliefs, as laid down in our Constitution, should outweigh any laws that other countries press upon their populace and attempt to press upon the entire world. Rather, we should be showing the value of our way of doing things in hopes of being emulated elsewhere. A thriving Public Domain, with many works elevated to Public status each year, is an irreplaceable asset and other countries would find themselves coming in second every time trying to compete. We should NOT emulate them, especially when it runs counter to our Constitution, and our beliefs.
Nor have our recent extensions brought uniformity, anyway. Europe has only a 70 year copyright on Works for Hire, not 95 years as the latest U.S. copyright extension allows. There would be no corporate backing for an act that brought true equivalency with European law since this would place creations like Mickey Mouse immediately into the Public Domain. Conformity with Europe was NOT the basis of the Sonny Bono Copyright Extension – keeping valuable works and characters from the 1920s in private ownership was the sole purpose of the act.
I will admit that being a signatory of the Berne Convention makes such a radical change to copyright law difficult, though not impossible. Treaties have been broken before and, no doubt, will be again. However, since the Constitution forbids the copyright monopoly to extend beyond the Author, the United States President and Congress had no right to make the United States a Berne signatory, as this convention requires a life of the author plus 50 years term minimum, which, as I have noted above, is not within the boundaries of what was written in the Constitution.
As a citizen of this country, I call on you to do your job and to bring this country back to adherence to what is written in our Constitution, each and every line, limiting copyright to a sensible term that extends no longer than the life of the author. Heirs of authors should not be provided for out of properties rightfully belonging to the Public, but out of funds and real properties set aside for that purpose by their predecessors, the same as for any other heir.
The 1st Amendment allows the people to petition for a redress of grievances. On the subject of copyright, the public has lost so much that the cost is incalculable. The national debt could be paid several times over with the revenues generated by these extended copyrights on works that should have been elevated to the Public Domain long ago. And there can be no calculation at all on works that were not created because of copyright and the censorship accompanying an extended term.
Congress only seems to listen to corporate dollar signs, not those who speak for the public. I have signed petitions against copyright extension, against the DMCA, just one of hundreds of names. What do we need to do to be heard? Do corporate donations really speak so much louder than a letter or petition from real people?
Support the Public Domain; it’s worth defending.
Sincerely,
Susan M. Aker