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A Convenient “Straw Man” to Attack – Hugh Stephens Blog

The Walt Disney Company has delighted generations of children and adults with its style of wholesome family entertainment, whether it’s movies, cartoons, games or theme parks. That’s the Disney brand. Disney has generally managed to steer clear of political controversies and stay safely in the middle ground, very much in the mainstream. Like any global corporation, Disney needs to satisfy a range of stakeholders, the most important of whom are its customers, but also including, of course, shareholders, employees and regulatory authorities. Disney has managed to navigate these sometimes-conflicting demands pretty well. After all, it has successfully established theme parks in places as varied, in terms of political environment and regulatory expectations, as Paris, Tokyo, Hong Kong and Shanghai. Not to mention California and Orlando, FL. Actually, Florida might be the most challenging regulatory environment in which it operates.

At the current time, Disney is being targeted by some state and federal Republican officials because they feel Disney is not on-board with current Florida legislation, “The Parental Rights in Education Bill” (aka “Don’t Say Gay” bill). If adopted, it will prevent discussion of sexual orientation or gender identity instruction in Florida classrooms from kindergarten through Grade 3. Disney would no doubt prefer to avoid wading into a controversial issue like this unrelated to its business, but the unhappiness of some Disney employees over its initial low profile led to the company to take a corporate position—against the bill.

It is not my intention to step into the minefield of Florida, or gender identity, politics. Disney is more than capable of defending itself and explaining its corporate positions. Rather I want to highlight the ludicrous position taken by some Disney political critics to try to punish the company by attacking it on the basis of its copyright holdings. Two Republican members of Congress, Rep. Jim Banks of Indiana and Rep. Jim Jordan of Ohio have threatened to block any extension of Disney’s copyright on Mickey Mouse.

That might be a real threat or a punishment if Disney was actually seeking to extend the term of protection of US copyright law, which of course would apply to everyone, not just Disney. But there has been no suggestion that they are. Nor is anyone else trying to achieve this as far as I can tell. Banks has written to Disney’s CEO opposing any extension to Disney’s copyrights–extensions that Disney has not asked for. This must be the straw man of all straw men.

The latest development is that Senator Josh Hawley (R-MO), in a publicity stunt designed to “punish” Disney has introduced legislation, “The Copyright Clause Restoration Act” (S-4178), that would specifically target The Walt Disney Company by rolling back existing copyright protection on its works along with drastically shortening the term of copyright protection for all other rights-holders going forward. Apart from being an unconstitutional expropriation of property, the Bill would put the United States in violation of commitments made in a number of bilateral and multilateral trade agreements, notably the conditions of its accession to the Berne Convention. The retroactive and expropriatory element of the Bill is worded so that it applies to any entertainment company or movie studio with a market capitalization above $150 billion, without specifically naming Disney. Disney, however, is clearly the target as the only primarily content company with copyright assets covered by the designated industry classification categories named in the Bill—unless its market cap suddenly plummets. This is too cute by half. Hawley may as well have said that the legislation applies to any company that owns the IP in an anthropomorphic mouse that whistles. (It appears, however, that NBC Universal may also be captured because of its ownership by Comcast and Amazon’s just-concluded acquisition of MGM could also possibly subject the copyright holdings of this studio to retroactive expropriation–except that it won’t happen). Hawley’s draft legislation is bad law and terrible public policy. It will go nowhere because Congress is not going to change the law to target just one company and retroactively expropriate its assets just because one Senator happens not to like it. Apart from the legal challenges this would entail, the move reeks of political gamesmanship. In short, the whole thing is plain “Goofy”.  

Banks and Jordan, and now Hawley, have dredged up the issue as a stick with which to beat Disney because copyright protection on the first Mickey Mouse cartoon ever produced, Steamboat Willie, which came out in 1928, will expire in the US on January 1, 2024. On that date the first black and white sound cartoon in which a very different looking Mickey from the one today, a Mickey who whistles but does not speak, will fall into the public domain. But Disney will retain copyright over all iterations of Mickey beyond this early cinematographic work and furthermore holds trademark rights over all uses of Mickey on a full range of products and merchandise, in perpetuity as long as the marks are used and renewed. Not only that, this is not just about Mickey; the copyright on a lot of other works will also expire on the same day. This is a regular occurrence, a fact that anti-copyright crusaders try to exploit each year by proclaiming “Public Domain Day”. This is just a publicity stunt to promote an anti-copyright agenda, suggesting that works under copyright protection have been locked away from the public for decades, and are now suddenly liberated. This is nonsense. As I wrote earlier this year when A.A. Milne’s work “Winnie the Pooh” entered the public domain in the US (“Winnie the Pooh, the Public Domain and Winnie’s Canadian Connection”),;

Those who go to inordinate lengths to “celebrate” a work going into the public domain help feed the false narrative that a work under copyright is one that is “locked up” and unavailable to the public. The Center (for the Study of the Public Domain, at Duke University) notes that works falling into the public domain are “free for all to copy, share, and build upon”. That’s true, but a work under copyright is also available for all these purposes through licensing, and/or fair dealing/fair use exceptions.”

Milne’s work has been in the public domain in Canada since 2007, but I have yet to see an explosion of derivative works simply because Pooh is not in copyright there. In Canada, the term is life of the author plus 50 years although that is about to be extended to “life plus 70” to match the term for the EU, Australia, Japan and many other countries as well as for newer works in the United States. Because of the history of copyright legislation in the US, where there were different (renewable) terms at different times in the past, when Congress updated US copyright law in 1976 it provided a period of protection for older works of 75 years from the date of the publication of the work, rather than tying the term to the lifespan of the author. For works published after January 1, 1978, a term of “life plus 50” was legislated. In 1998, the “life plus 50” term was extended by twenty years to bring the US copyright term into alignment with that of the EU, whose term had become “life plus 70”. At the same time Congress also extended the period of 75 years from publication for older works by 20 years to 95 years.

At that time, Steamboat Willie’s 75 year copyright term was nearing expiration, leading to a campaign by those opposed to term extension to identify the US Copyright Term Extension Act of 1998 (aka the Sonny Bono Copyright Term Extension Act, named after Congressman Bono, who had recently died in a skiing accident), as the “Mickey Mouse Protection Act”. While unfair and misleading, the label was used to mobilize anti-copyright elements to try to paint the legislation as a gift to one company. Although Disney as a major copyright stakeholder actively promoted extension, as did many other companies, associations and groups with copyright interests, the main motivation for the US legislation was to enable US rights-holders to access the additional twenty years of copyright protection offered by the countries of the European Union. As copyright blogger and retired senior music industry executive Neil Turkewitz pointed out in a posting a couple of years ago, the US Supreme Court, in dismissing a challenge (Eldred v Ashcroft) against the term extension law stated;

By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.”

The EU has a provision known as “the rule of the shorter term” whereby EU member states will not provide the full “life plus 70” term of protection to authors from other countries unless EU rights-holders are given equivalent protection. In other words, the EU applies the principle of reciprocity to the extended term, as is its right under the Berne Convention. To avoid unfavourable discriminatory treatment against US rights-holders in the EU, the United States needed to provide the same level of protection to EU rights-holders as those rights-holders enjoyed in the EU by extending its term, a provision that would of course be applicable to domestic rights-holders as well.

Back in 1993 the EU implemented an extended term of “life plus 70” through its Copyright Directive–applicable to all members–primarily in order to harmonize the term of protection among member states, which were of varying lengths. For example, Germany had a term of “life plus 70” whereas Italy was “life plus 56” resulting in confusion about what works were protected by copyright within the Union. One of a number of stated reasons for extending the term of protection was that originally the “life plus 50” standard incorporated into the Berne Convention of 1886 was intended to protect works for two generations after the demise of the author. With longer life spans in the last decade of the 20th century, a period of 70 years was now required to provide the equivalent level of protection. This was one justification and there were others, but the prime motivation was to level up the level of protection across all the member states. While internal consistency was the major factor for the EU, the result was that other countries not meeting the EU standard would find their rights-holders at a disadvantage in the EU market.

Once it had extended its term across all member states, the EU adopted reciprocity (or the rule of the shorter term) to encourage other countries to give equivalent protection to EU rights-holders abroad. In the case of the US, it worked. When Congress passed the Term Extension Act in 1998, Disney was a beneficiary along with any other rights-holder whose work had not yet entered the public domain in the US. While some countries have longer terms of protection than the United States or the EU (Mexico for example has a term of copyright protection “life plus 100”—maybe people live longer in Mexico), there is no push in the US or EU for extending the present term of copyright (although there are some who argue that copyright is a property right and like other property rights should last in perpetuity). Today the focus is on encouraging those countries where the term of protection is only “life plus 50” (like Canada and New Zealand) to align their terms of protection with that of most other developed nations. Both countries have committed to doing so as a result of trade agreement commitments, a move that will have the additional benefit of securing longer protection for their rights-holders in the EU, just as American rights-holders benefited once Congress adopted the Copyright Term Extension Act in 1998.

Given the background to US copyright extension twenty-five years ago, and the current state of US copyright law, it is frankly laughable to suggest that a movement to further extend the term of copyright protection in the United States will suddenly emerge, driven by the Walt Disney Company or anyone else. If there is no such movement, there is no need to publicly oppose it. And it is equally ridiculous to try to take US copyright law back in time to the provisions of the Copyright Act of 1909, as Hawley’s bill would do. This is all about political grandstanding, but that grandstanding would have a lot more credibility if it was based on facts—and sound legal principles– rather than a myth.

© Hugh Stephens 2022. All Rights Reserved.  


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