(…) Back in 1998, representatives of the Walt Disney Company came to Washington looking for help. Disney's copyright on Mickey Mouse, who made his screen debut in the 1928 cartoon short "Steamboat Willie," was due to expire in 2003, and Disney's rights to Pluto, Goofy and Donald Duck were to expire a few years later. Rather than allow Mickey and friends to enter the public domain, Disney and itsfriends - a group of Hollywood studios, music labels, and PACs representing content owners - told Congress that they wanted an extension bill passed. Prompted perhaps by the Disney group's lavish donations of campaign cash - more than $6.3 million in 1997-98, (…) - Congress passed and President Clinton signed the Sonny Bono Copyright Term Extension Act (Note: CTEA). (…) Most likely to succeed is Eldred's argument that the CTEA exceeds Congress's power under the Constitution's Copyright Clause (Article I, Section 8), which provides that The Copyright Clause does two things. First, it empowers Congress to "promote the Progress of Science and useful Arts." Second, the text of the Copyright Clause limits the means that Congress may adopt in exercising the enumerated power. Congress is limited to granting rights to authors for "limited Times" - there can be no perpetual ownership of intellectual property. (…) Seen in this light, the CTEA cannot survive. Because already existing works cannot be created anew, extension of subsisting copyrights does not "promote progress." Congress is not empowered merely to provide copyright holders with an additional boon - that is not "progress", but corporate welfare. (…)

Artists Depend On A Rich Public Domain

If we know little about the utility of longer copyright terms, there is abundant evidence regarding the vital importance to the progress of our culture of a robust stock of public domain works. Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists. Shakespeare's Romeo and Juliet (1591) was taken from Arthur Brooke's poem Romeus and Juliet (1562), and most of Shakespeare's historical plays would have infringed Holingshead's Chronicles of England(1573). For the third movement of the overture to Theodora, Handel drew on a harpsichord piece by Gottlieb Muffat (1690-1770). (…) Cultural giants borrow, and so do corporate giants. Ironically, many of Disney's animated films are based on Nineteenth Century public domain works, including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book(released exactly one year after Kipling's copyrights expired). Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary to the romantic notion that true genius inheres in creating something completely new, genius is often better described as opening up new meanings on well-trodden themes. Leonard Bernstein's reworking in West Side Story of Romeo and Julietis a good example.